The Queen v A B [2006] VSC 96

Supreme Court of Victoria|2006-03-10|Before: NETTLE JA

CRIMINAL LAW - Sentencing - Manslaughter - Provocation - Perceived threats of death to accused and his family - Manslaughter of the gravest kind - Sentence of 15 years' imprisonment with a non-parole period of 13 years.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

2 You knew the deceased for more than ten years before you killed him. You first met him in gaol and you kept in contact after release until he was gaoled again in 1994 for the attempted murder of Thomas Williams. Years later, after he was released from gaol once more, you came across him at a pizza place in Chapel Street and thereafter you remained friends until shortly before his death.

3 By all accounts the deceased was a standover man and drug dealer. He had convictions for violent offences, including attempted murder, and for drug offences, and he frequently went armed with at least one firearm which was usually a semi-automatic pistol. But you were aware of what he had done and what he was like and it did not deter your friendship. As you told police: "We've always like been on a friendly basis". And you too have a significant history of criminal convictions for drug offences extending back over many years.

4 According to the evidence at trial, the deceased received large amounts of cash from illegal drug trafficking activities and was disposed to invest those moneys in legitimate business ventures. Coincidentally, some years ago you started business on your own account as a property developer and you were keen for the deceased to invest his drug moneys in several of your projects. The evidence shows that the deceased invested in at least one of your developments and that at the time of his death he was considering an investment in at least one more. The details are sketchy but it appears that it was proposed that he put in several hundred thousand dollars.

5 Early in 2003, you took on the redevelopment of a city night club, called the Khokolat Club, which at the time was closed down with its liquor licence suspended. According to your record of interview, you invested approximately $60,000 of your moneys in the project and the deceased put in another $42,000 by way of loan. There are indications, however, that the deceased's contribution was more than $42,000 and that he put it in as equity. Up until the time of his death he claimed that he was a half-owner.

6 You told police that the deceased used to bring his mates over to the club to do ecstasy deals and speed deals. You said that you and he used to argue about that conduct. According to you, you had put drugs behind you by that stage and wished to have nothing more to do with such things. I take leave to doubt that was so. The evidence is that you were responsible for appointing Mario Katsoulis to manage the club, and in 2004 you were convicted of conspiring with Katsoulis to traffick in a drug of dependence in 1999. Furthermore, as late as 9 April 2002 you were found to be in possession of cannabis when search warrants were executed on your home.

7 The deceased was arrested in June 2003 as part of a police operation called Operation Lexicology. Upon his arrest he was found to be in possession of a quantity of drugs, a semi-automatic pistol and a large amount of ammunition. He was, therefore, held in custody to await his trial. You say that the Khokolat Club thereafter ran into problems.

8 You told police that you found that the redevelopment was costing a lot more than you had expected and that with the deceased in prison you could not afford to continue. I infer that means that if he had not been in prison you would have looked to him for extra funds. As it was, you said, your only choice was to hand the club over to one Wayne Williams, who was a client of your solicitor, Alex Lewenberg, and in effect to give to Williams the benefit of all your expenditure and effort up to that point. So, the club reopened for business in August 2003 with Williams as the apparent owner and licensee. But there is much about that apparent change in ownership of the club that is unconvincing. I am not persuaded that you gave up all if any interest in the club and, as it appears to me, the deceased was not persuaded of it either.

9 The version of events which you gave police was that you were so tired of the whole matter that you simply gave up the club to Williams and wanted nothing more to do with it. But Williams' evidence was that, if he managed to sell the club at a profit, he intended to give you a share of it. Your solicitor, Alex Lewenberg, also said that he thought that you would get a share of the profit, which he thought would be half, and there is evidence that you spent time working on the renovations after Williams is alleged to have taken over. In August 2003 your father in law is said to have entered into a written contract of sale at your instigation to purchase the club from Williams for $450,000, and your father in law gave evidence on the plea that he paid a deposit of $45,000 with the balance due on completion on 15 September 2003. But most of that $45,000 finished up being paid to you or to your account shortly before and after the deceased's death, and the contract is alleged to have been rescinded after you killed the deceased.

10 During August 2003 you worked to procure the release of the deceased on bail. Your efforts included persuading the deceased's brother, Haysam Zayat, to attend a bail hearing in support of the application; paying some $20,000 to your solicitor, Mr Lewenberg, to cover the legal costs of the application; paying another $6,000 in cash to the deceased's mother to be used as part of the security for bail; and allowing one of your bank accounts to be used to "wash" $50,000 cash into a $50,000 bank cheque to be paid as security for bail. You told police that you had also been prepared to put up your own family home as security for the deceased's bail and that you only decided not to when your wife objected to that course.

11 The bail hearing proceeded on 1 and 2 September 2003 and you say that during an adjournment in the course of the hearing you managed to speak to the deceased and that he said to you that he knew you were being "stood over" in relation to the club. You assert that you told him that it was not so and that you would discuss the matter with him when he got out of gaol. The deceased was then released on bail on Wednesday 3 September 2003 and you say that while in the car on the way home he flew into a rage, or to put it in your terms: "he turned like into a fuckin' feral animal", and accused you of receiving $300,000 for the club.

12 According to you, there was then an emotional and abusive exchange in which you denied that you had received any money in connection with the club and the deceased asserted just as vehemently that he had been told by Mr Lewenberg that you had. You attempted to relieve the pressure by telephoning Mr Lewenberg and you asked him to endeavour to persuade the deceased that you had not received any money. That resulted in a meeting later that day at Mr Lewenberg's offices.

13 In his evidence, Mr Lewenberg said that he endeavoured to persuade the deceased that you had not received anything in connection with the club and that, contrary to the deceased's assertions, he had not previously told the deceased that you had received $300,000 for the sale of the club. But, according to Mr Lewenberg, the deceased refused to believe him and therefore, after further shouting and abuse, you and the deceased retired to a private conference room in which you negotiated for another 10 or 15 minutes, punctuating your negotiations with still further shouting and abuse. Eventually, you and the deceased emerged and announced to Mr Lewenberg that you had resolved your differences and, according to Mr Lewenberg, you and the deceased then apologised to him for the manner in which you had behaved.

14 The evidence does not reveal whether you or Mr Lewenberg told the deceased of William's intention to pay you half the profit to be realised on the sale of the club. I am inclined to doubt that you did. On the other hand, I note that you told police that your agreement with the deceased was that you would pay him $200,000 in 12 months time (apparently out of the proceeds of one of your proposed developments in Williamstown). Putting to one side a claim made by Williams that he spent $300,000 on the development (which Mr Lewenberg doubted, and I do not accept), it is possible that $200,000 in 12 months time was seen as about equal to a half share of the contract sale price of $450,000, less the total of $100,000 which you and the deceased had put in, plus the sort of "interest" for a delay of 12 months that the deceased may well have demanded.

15 The evidence also shows that you agreed to pay the deceased a sum of $10,000 immediately - probably as a down payment on the $200,000. According to Mr Lewenberg, that $10,000 was part of the $45,000 deposit supposedly paid by your father-in-law under the contract of sale with Williams. Interestingly, however, Mr Lewenberg's trust account records show that the $45,000 was paid in by Katsuolis and held in a trust account in the name of Williams, of which Williams denied all knowledge, and that the $10,000 was paid out of the trust account to the deceased in accordance with your request.

16 You told police that you received a telephone call from the deceased on the following Friday morning, 5 September 2003, and that he then complained to you about delay in Mr Lewenberg sending him the $10,000. You say that he also asked you to give him $5,000 or $6,000 which he said he needed for his father. According to your record of interview, you responded by telling the deceased to have Mr Lewenberg transmit the $10,000 electronically and by emphatically rejecting the deceased's request for any further money at that stage. I observe in passing that you do not appear to have feared the deceased at that point.

17 You say that on the following day, Saturday 6 September 2003, the deceased came to your home and that he then demanded that you go with him to the place where you had arranged for his semi-automatic pistol to be held in safe keeping while he was in custody. You also say that, after initial resistance to the idea, you went with him and collected the weapon and ammunition and that you gave both of them to him. Evidence given by the custodian of the weapon suggests that you and the deceased may have collected it from him on the night of Friday 5 September 2003, although I doubt that a great deal turns on the difference in timing. More significantly, you claim to have experienced serious concerns as a result of those developments.

18 You told police that on Saturday 6 September 2003 the deceased returned to your home with the weapon and that there was then an abusive conversation in which he said that he believed that he was the victim of a conspiracy to cut him out of the Khokolat Club and that he would "not lose" and that he intended to "take it out on everyone here". You say that he then turned and fired 14 rounds from his 9 mm pistol into a mound of earth near to the boundary of your property as if to emphasise his intentions.

19 Your wife gave evidence that on the same occasion - although she put it as having occurred on the night of Monday 8 September 2003 - the deceased told her that he had killed Anne Williams while he was under the influence of drugs and that he had recently undergone an implant operation designed to assist him in ridding himself of his addiction to heroin. According to your wife, the deceased said too that he was cold as a result of the operation and he asked her for a jacket to keep warm, and she lent him one of your good jackets for the purpose. As she recalled events, the deceased then turned to your younger son and said to him that: "If you think your father's got no hair now, wait till I've finished with him." At the time she took it as a joke. The next day, however, you discovered that the deceased was using your jacket as a dog blanket and you say that your reaction to that was that:

"I didn't know whether he was tryin' to piss me off or tryin' to stand over my life or tryin' to take charge of my life or my possessions or I don't know what his - what his angle was. I - I really haven't got a clue. Or whether he just wanted to shoot me because I pissed him off or what ever. I don't know. I don't know."

Meanwhile, you say that you had started sensing that there was going to be "a bloodbath" and, consequently, that you purchased a shot gun and ammunition.

20 Just why or when you began to fear the accused to that extent is not clear. As I read your record of interview, some of your statements to the police suggest that it was because of the pistol firing incident. But other statements in your record of interview imply that you did not frighten so easily. For example, when the deceased accused you of participation in a conspiracy you say that you replied to him emphatically:

"Let me tell you somthin', you fuck wit. There is no conspiracy. The only conspiracy there is is your paranoia. And you are a fucking idiot because you should know better."

21 According to your record of interview, the weapon which you purchased was a brand new unlicensed pistol-grip pump-action 12 gauge shotgun with eight rounds of SG ammunition, for which you paid $2,200 cash, and some days before you killed the deceased you loaded the weapon - four rounds in the magazine (which was the maximum it would hold) and one in the breach - and you then kept it loaded ready for action because you were "expecting something terrible to happen from that man."

22 When asked by police why you chose SG ammunition, you answered in effect that you knew nothing about ammunition. But the evidence implies that you did know. Mr Glaser, the firearm examiner, said that SG ammunition is the heaviest shot commercially available. The specimen which was received into evidence as Exhibit DPP 12 bears that out. SG ammunition is marketed as suitable for medium game, such as deer, wild boar and kangaroo, and it is used for law enforcement and military purposes. In the latter application it has been found useful in trench and jungle warfare where it is believed to offer optimal incapacitation effect and on human beings it is lethal. In the circumstances, I infer that you chose SG ammunition advisedly, for maximum killing effect.

23 In your record of interview you stated that you met the deceased and his girl friend, Sharon, at Ted's Roadhouse near Tarneit on the night of Monday 8 September 2003. You said that on that occasion the deceased did not ask for any money but that he did complain emphatically in anti-Semitic terms that you had allowed Alex Lewenberg and Wayne Williams to take the club away from you. According to you, the deceased also said that he intended to take it out on everyone and to kill Alex Lewenberg and Williams. And you stated in your record of interview that you were so distressed by those threats that you went immediately to Mr Lewenberg's offices and told him that you thought that something bad was going to happen in his offices and at the Khokolat Club and you warned him to keep his head low and to ensure that Williams did the same. I doubt the truth of those statements.

24 Mr Lewenberg does not seem to have been too concerned about any threats. His evidence was that you may have said something to him in the preceding week about the deceased making threats against him and Williams. But it was not sufficiently serious to warrant report to the police. As he put it:

"... There was nothing that I could indicate as actual positive threats. There were implication and indication that I understood to be implicit. No direct threat to me."

25 Nor does it appear that Mr Lewenberg or Mr Williams did anything about keeping their heads down. Williams said that Mr Lewenberg asked him to spend one day at Mr Lewenberg's offices until about 3.00pm, but he thought it was the Friday preceding the killing, and he did not know why Mr Lewenberg wanted him to be there. For Mr Lewenberg it seems to have been business as usual. He said that on Monday 8 September 2003 the deceased came to his offices with the deceased's father in law and another man in order to pick up some files and to obtain a receipt for the $10,000 paid on Friday 5 September 2003. He stated that there was a degree of unpleasantness on that occasion. Apparently, Mr Lewenberg had refused to act for the deceased any longer for a number of reasons, and the deceased said something to the effect that no one sacks him and that he would see what he would do about it at a later date. According to Mr Lewenberg, the deceased also said pointedly that everyone has to account, be they Jew or gentile, and then looked at Mr Lewenberg's dog and said that it would be a pity if the animal were shot. But, again, Mr Lewenberg was not sufficiently concerned about what had occurred to do anything about it. A solicitor in Mr Lewenberg's position would surely not have hesitated to report the matter to police if he thought that there were anything in it. Evidently, he did not.

26 You told police that the deceased telephoned you on the morning of Tuesday 9 September 2003 and demanded $20,000. I infer that it was intended to be a further part of the $200,000 already agreed upon.

27 It is not clear, however, whether you had previously agreed to pay the $20,000 at that time or whether the deceased was in effect demanding that the payment be accelerated. On balance I find in your favour that it was the latter. The only real evidence on the point is a statement in your record of interview that you agreed to the demand for $20,000 at that time because you were concerned that there would be "drama" if you did not. But there are other indications in the record of interview that you had expected to have 12 months in which to pay and to be able to do so out of the proceeds of your Williamstown development.

28 You say that you told the deceased you did not have $20,000 at the time but that you would hunt around and find it. According to you, you arranged for him to come to your house later that day and, when he came, you told him that you were waiting on money and that you should have some money for him that night. You suggest that he was satisfied with that response and that he left the matter on the basis that he would telephone you later in the day. You also told police that you thereafter made efforts to raise the $20,000 but that you were unable to do so.

29 Contrary to your statements, I find beyond reasonable doubt that you were not waiting on any money and that you did not expect to have any money for the deceased that night and that you did not make any efforts to raise the money.

30 The evidence shows that you had substantial credit facilities available to you and that you chose not to exploit them. Apart from anything else, you had substantial equity in your family home, approximately $245,000, and you had previously been prepared to put it up as security for the deceased's bail. There was still $25,000 in the so called Williams trust account, out of which it may be noted that some $20,000 was paid after the death of the deceased towards your personal expenses. Mr Lewenberg was in the habit of lending you large sums of his clients' money on first mortgage security and, not infrequently, large sums of his own money for advances beyond the 66.6% lending/security ratio permitted for mortgage register advances. It is true that he said in evidence that by the time in question he had discontinued his mortgage lending practice. But the fact is that he was still in the habit of lending you large sums of money and his assessment of you as he said is that you were a reliable credit risk. You did not seek to borrow money from any of those sources.

31 You told police that you spent a good part of the day running around trying to raise the money. I find that statement was false. The evidence shows that your spent several hours of the day up until about 1.30 or 2.00pm working on footings for the extension of your family home; part of the afternoon thereafter showing you foster-father and his partner some land near to where you killed the deceased that night; and then, some time later in the day, driving to Williamstown in order to leave some keys for a plumber to obtain access to a project requiring work the next morning. According to your wife's evidence, you were then at home until about 8.00pm and you told police that you travelled from home to Ted's Roadhouse before responding to a number of calls which the deceased had made to you during the course of the afternoon but you had elected not to answer. It was suggested in the course of final address at trial that the time which you spent with your foster-father that day may have been devoted to attempting to raise money. But there is no evidence to support that suggestion and in my view there a number of reasons to think that the purpose of the exercise was to recognitor the site at which you later killed the deceased.

32 Be that as it may, you told police that you called the deceased from Ted's Roadhouse at about 9.00pm and told him where you were. You stated that he or at least his girlfriend Sharon said that they were keen that you go down to the city to meet them. Significantly, you insisted that they should come to you at Ted's Roadhouse and they agreed to do so. You say that the deceased then took what seemed to be an unduly long period of time to arrive, and that you started "getting annoyed"; indeed so much so that you telephoned the deceased again and told him in effect to hurry up or otherwise you would go home. Tellingly, you did not inform the deceased at that stage that you had no money for him or that you needed more time to find it. Despite your assertions in your record of interview about having no money for the deceased and therefore trying to put him off, it is apparent in fact that you did not wish to avoid him.

33 You say that by the time the deceased arrived at Ted's Roadhouse you had gone for a drive to fill in time and that, upon returning to Ted's, you found him standing alone with his dog near to the back service entrance. There is some evidence that he then told you peremptorily that you should go to another place to meet. But whether or not that was the case, you then drove off in your car, with the deceased following in his, along Hopkins Road towards Boundary Road, Tarneit. Boundary Road, Tarneit is an unlit unsealed semi-rural road bounded on either side by barbed wire fenced open paddocks. When you got to it, you turned into it and drove some 50 or 60 metres along it to a deserted spot at which you stopped with the deceased stopped in his car behind.

34 What happened then is described in one of the two different versions of events which you gave in your record of interview, as follows:

"...I went straight to the [deceased's] car and Sam introduced me to a bloke called Ali, right. I was sittin' in the back seat. Anyway, Sam got out the car and he goes, 'Let's talk'. Anyway, got out and walked towards [my] car because he wanted a light. He had a cigarette and he wanted a light. Got him a light and started talkin'. The - the meeting was meant to be money. That's what the meeting was about. He wanted money... I said, 'Listen' - I said, ' I've got nothin'. 'What the fuck are you doin' ' he said, and he started getting' a little bit stroppy with me. I started walkin' away from him, right, to the other side of the car_. The passenger side_. I go, 'Sam' - I go, 'There's no money'. I go, 'There's nothin' yet.' I said, 'We agreed 12 months.' Anyway, he started yelling, 'What the fuck are you doin'?' The next thing I've seen Sam slidin' his hand slowly towards his hip. I've ran [sic] straight around to the side - to the driver's side of the car, I've grabbed the shotgun out of there, I've ran [sic] around and I've pointed it at Sam, right. The safety was on, right. He's looked at me, I've clipped the safety off, the next thing I - I just went ballistic. I absolutely just went ballistic. If there was 1,000 bullets in that gun, 1,000 bullets would've went [sic] out of that gun. Let me - look, I'm being straight out with you. I just absolutely - just - it was just bang, bang, bang, but they were just goin' everywhere. It was so dark at night that it just - how can I put it? I basically hopped into a rage. I don't know. Just even I remember it was just clicking. Just clicking and there was no bangs [sic]. I saw Sam move in the paddock, looked at him, turned around to the [deceased's] car, I looked at the other bloke, I smashed a window on the car, right, and he tried to start the car and he tried to ran me over [sic]. I went around to the driver's side of the window, alright. I smashed that. I told him, 'Look, you fuckin' arsehole, fuck off and don't worry about it. Just go.' That was it, he's jumped straight out of the driver's side seat into the passenger side, through the passenger side door, he jumped the fence, I jumped the fence, [and] chased him. I actually tried to talk to him. He was running, alright. I actually put the gun down and I said, 'Mate' - I said, ' The gun's down, right.' I tried to talk to him and he just kept running and then I saw a white car pick him upon on Boundary Road.[1]

35 In the other version, which you gave later in the record of interview, you said, among other things:

"...I started walkin' around the side of the car. I saw him fuckin' like moving towards the side of his hip, right. Then I've just ran [sic] to the passenger side. The shot gun was there, I grabbed it, I've ran [sic] around the back of the car, I've pointed the gun at him, right. He's looked at me, right. I've pressed the trigger, the trigger wouldn't go, right. I've the safety [sic] and then I just shot a shot and then I just kept shootin'. I ran, then he ran, right, and he screamed something at me, right, and then I just pointed it and then I shot. It was pitch black. I just empted the gun. I emptied the gun, that was it..."[2]

36 The white car that picked up the other man was driven by passers-by who took the man at his request to the nearest police station. Their evidence was that he appeared terrified by what had occurred. You drove off immediately in order to escape detection and, after returning briefly to collect a cap which you had left at the scene, you departed again before police arrived. You went to the home of a friend where you showered, in order no doubt to remove gun shot residue from your body, and you changed into fresh clothes and destroyed the clothes you had been wearing, in order no doubt to prevent forensic examination and the possibility of witness identification. You also arranged for the destruction of the shotgun and the three remaining cartridges as a further precaution against detection, and then you returned to your own home to bed sometime after midnight. You consulted your solicitor early the next morning and thereafter gave yourself the benefit of several days' contemplation before facing the police. I infer that you spent much of it preparing and rehearsing the very elaborate version of events which appears in your record of interview.

37 There is some evidence that you made arrangements to surrender yourself to police on Monday 15 September 2003. I do not accept it. Your solicitor said that he telephoned someone in the Homicide Squad to arrange for you to surrender. But when asked to whom he spoke, he said that he could not remember the name. As it was, the police arrested you at your home on the morning of Friday 12 September 2003 and charged you with murder.

38 The evidence shows that the deceased was unarmed when you killed him and as you said to police: "...I did not see Sam with a weapon". Not surprisingly, therefore, the jury rejected your defence of self-defence. The other defence left to the jury was provocation. Accordingly, since you stand convicted of manslaughter rather than murder, it must be assumed that the jury were unable to exclude the possibility that you were provoked to kill. On that basis, however, your crime was manslaughter of the gravest kind. On your own admission, you purchased a 12 gauge shotgun and eight rounds of the most lethal ammunition generally available for use in such a weapon, and you did so with the avowed intention of using it on the deceased when the occasion arose. Then, when the occasion did arise, you put five rounds of that ammunition into the deceased from distances ranging from three metres down to no more than one metre as he fled screaming in terror before you. Upon your own admission, you ran in pursuit of the deceased and you shot at him repeatedly as he fled before you screaming. And, from the evidence, it is clear beyond reasonable doubt that you shot him as he scrambled in terror across the barbed wire fence at the side of the road and that you then stood at the fence, as he lay shot and badly injured in the field beyond, and you fired down on to him mercilessly in order to finish him off.

39 It is not hard to imagine the damage which five rounds of 12 gauge SG ammunition can inflict on a human body. The photographs in this case leave no doubt about it. The shots you fired at the deceased ripped through his flesh causing irreparable damage to his internal organs and very shortly afterwards his death. What was almost certainly the first shot passed through his left arm and into the side of his chest. The second and third shots resulted in extensive damage to his back and shoulder. You fired the fourth shot while he struggled to cross the barbed wire fence and it passed through the sole of his left shoe, as it presented outstretched to the muzzle of your weapon, and from there through his thigh and to his back. Finally, you fired fifth shot as the deceased lay critically wounded, face down on the ground just beyond the fence, and it passed through his back and into his vital organs ripping them to pieces. Thus as Dr Burke, the pathologist, explained:

"...The cause of death [was] shotgun injuries to the back and chest. The shotgun injury to the back, Injury No. 16,...resulted in laceration of spleen and ruptured liver. The injury was associated with hemoperitoneum, which is blood in the tummy. The shotgun injury to the lateral or outer aspect of the left upper arm, Injury No. 9, extended across the arm to exit the medial or inner aspect of the left arm elbow, Injury No. 10, and re-enter the left chest, Injury No. 5. This injury...resulted in laceration of left lung lower lobe with associated hemothorax, or blood within the chest."

40 Authority dictates that the assessment of the gravity of your crime must take account of the provocation to which you may have been subject.[3] I note therefore that it is possible that the provocation included implied threats against you and your family and unwarranted insults and allegations of theft and double dealing. In my judgment, however, none of that takes your offence outside the category of the gravest of homicides short of murder. You had any amount of opportunity to go to the police and thereby to secure yourself and your family against the threats which you say you feared. Instead, you chose to purchase and arm yourself with the most lethal of close-range small arms in order to destroy the body and life of your victim. On your own admission, your offence was premeditated and committed with the unequivocal intention of taking the deceased's life. Provocation though there may have been, your massacre of the deceased was an outrage.[4]

41 It is said that the crime of manslaughter does not permit of an established sentencing tariff. [5] That is so because the nature of the crime is capable of varying from one that is merely nominal to "the very confines of murder".[6] But manslaughter the result of provocation is an alternative to murder, which is generally to be regarded as more serious than other forms of manslaughter, and your crime does indeed reach to the very confines of murder. [7]

42 Toleration of the kind of conduct in which you engaged, even when provoked, is completely unacceptable. [8] The degree of its savagery demands unequivocal denunciation and condign punishment [9] and it calls for a sentence which will provide general deterrence against further offending of the kind. [10] I am required as well to take into account the effect of your crime on the family of the deceased, as expressed in their victim impact statements. That does not mean that you are subject to a greater penalty than may otherwise have been the case.[11] But I note that the deceased's brother and his former de facto wife and her two children have submitted victim impact statements in which they tell of a deep sense of grief and loss.

43 You have a history of prior criminal convictions dating back to 1987. It includes convictions over a period of more than 10 years of seven counts of possessing cannabis; two counts of using cannabis; one count of cultivating cannabis and one further count of knowingly taking part in the cultivation of a commercial quantity of cannabis; one count of fraudulently using electricity; two counts of trafficking in cannabis; and one count of trafficking in heroin, as well as one count of resist arrest; one count of using threatening words; one count of acting in a disruptive and abusive manner whilst in police custody; one count of receiving stolen goods; one count of possessing a drug of dependence (amphetamine); on e count of cultivating a narcotic plant (cannabis); one count of hindering police; and one count of giving false information in relation to court security. As well as that, on 31 March 2004 you pleaded guilty in the County Court at Melbourne to one count of theft, two counts of conspiracy to traffick in a drug of dependence and one count of possessing a drug of dependence, all of which were alleged to have occurred in 1999. At that time of the plea you gave a sworn undertaking to give evidence for the Crown against your co-accused and on that basis you were sentenced to a wholly suspended term of imprisonment of three years. But as events turned out, you dishonoured that undertaking and on 9 June 2004 you were re-sentenced by the Court of Appeal to four years' imprisonment with a non-parole period of two years and six months. Subsequently you were sentenced before the Magistrates' Court at Melbourne to a further one months' imprisonment for refusing to answer questions.

44 I do not think that any of those convictions is especially germane to the offence for which you are now to be sentenced. Up until the time of this offence your offending was largely non-violent and most of it was at a relatively low level of criminality. The offences committed in 1999, for which you were sentenced in 2004, were significant and it is to be noted that you killed the deceased while on bail for the offences for those offences.[12] But this offence far surpasses the seriousness of anything which your record suggested you may be capable of.

45 I have been provided with a psychological assessment which was undertaken by Mr Bernard Healy, clinical psychologist, on 6 March 2004.[13] According to that report, your parents emigrated from Lebanon and you were born in Williamstown in 1969 as one of seven children. Your father was a labourer and an alcoholic and he meted out severe discipline to you and your siblings. As a result, the home setting was most unhappy and as a child you sought to appease your father by working at a local milk bar and a fish and chip shop and handing your earnings over to him. He suffered from a breakdown in the 1980's and was placed on invalid pension and he died at the age of 53 on 20 May 1991 after suffering a heart attack.

46 When you were ten years of age you ran away from home and upon being brought before the court you told the Magistrate that you did not wish to live at home anymore. You were then placed in care before being sent to Tally Ho Boys' Home. You completed primary school at Newport while in care but you had limited opportunity for secondary education and you left school at the age of 14 years. By the age of 15 you had been fostered to your probation officer and her husband and while living with them you learned something of the drug scene. The head of the household was involved in drug dealing and by the time you were 17 years of age you were arrested for conspiracy to traffick in a large quantity of heroin. Your co-accused, who was three years your senior, was convicted and sentenced to six years' imprisonment with a minimum term of four years. You spent six weeks in the remand yard at Pentridge and finished up completing twenty three months' imprisonment before being released.

47 On leaving school you worked as a tyre fitter for 18 months and then while living with your foster parents you worked on their property and attended an unemployed youth programme for some months. At the age of 16 you lived at a flat with a foster brother until you were arrested in February 1987. You then did welding work with a cousin and before remand at the age of 17 you assisted your brother-in-law in the collection of bone and offal from butcher shops.

48 You were granted pre-release on 30 May 1988 and lived then with a sister and her husband and you worked with your brother-in-law and saved sufficiently to live independently. You were, however, then arrested for drug offences in November 1988 and held in custody until the following March, when it was determined that you did not have a case to answer.

49 While in custody in 1989 you underwent on-the-job training in construction of house frames and you have also completed a horticultural certificate through TAFE as well as courses in maths and computers. Later you began sub-contract work with a carpenter framing houses and after a time at that you began to sub-contract on your own account. But you had difficulties in getting in payments from the developer to whom you were contracted and it was in that context that you committed the offences which resulted in your imprisonment in 1996.

50 It is said that you reviewed your life upon your release in 1997 and that you then worked for a kitchen manufacturer for two years before eventually buying into that business. According to the report, your partner eroded funds through gambling and you lost some $27,000. Undaunted, however, in 2000 you started building new houses, sub-contracting most of the trades, and it appears that you met with success. Consequently, there does not appear to have been any economic imperative for the crime for which you are to be sentenced.

51 Intellectual testing reveals that you have below average intellectual capacity with a full scale IQ of only 85, placing you at the 16th percentile where 84% of your peers would do better. But those results may be due in part to the fact that while you were in care at Tally Ho you sustained a serious head injury when dived on by another boy while swimming in the pool and that you suffered a further injury when you were struck on the head with a shovel rendering you unconscious. You also suffered a head injury when you were struck with a discus while in care at Beltara. You then sustained serious further injuries in 1990, when you were stabbed in a road rage attack on the Western Freeway, including a punctured lung and wounds to the abdomen and you underwent splenectomy and liver surgery during the course of which you were declared clinically dead on more than one occasion. There is, however, no suggestion of any psychiatric disorder or intellectual disability of the kind which should be taken into account as a mitigating factor in the formulation of this sentence.[14]

52 It is said that you have never abused alcohol but that you have a history of drug abuse. You began smoking marijuana when you were only 10 years of age and you smoked it constantly - a maximum of 7 grams per day- until your late teens. It is also said that you took 5 or 6 Rohypnol tablets per day until you became aware or their effects on your behaviour. Predictably enough, personality testing is said to be indicative of depression, anxiety, a paranoid trend (linked to persecutory ideas), a schizoid trend (reflected in elements of social alienations and bizarre sensory experience) and a significant level of social introversion/withdrawal (associated with difficulty over the years in establishing trust in relationships and a general aversion to group interaction). But it is also noted that you married in March 1999 to a lady whom you had known for a number of years, and by whom you now have two sons, as well as one from her earlier marriage to another man, and that as a result stability entered your life. There seems to be no reason to think that you were suffering from any serious depressive malady at the time of this offence.

53 Despite the fact that you sought initially to conceal your involvement in the offence and destroyed evidence which you believed might connect you to the crime, following your arrest you co-operated with police to a considerable extent and made a number of admissions in the course of a very long formal interview. At the same time I note that there is much in the record of interview which is either patently or probably false.

54 I am told that you offered to plead guilty to manslaughter on 4 October 2005 and I treat your co-operation with the police and your admissions as factors in your favour and your offer to plead guilty to manslaughter as a further mitigatory consideration. The offer to plead guilty entitles you to a discount on the sentence which I would otherwise have imposed. But I do not think that it warrants a large discount. It came late and, while there is some affidavit evidence furnished on the plea which suggests that an offer to plead may have been made as early as March 2004, it is not convincing, even on the balance of probabilities. It is in the form of what the deponents believe they would have done or what they believed was done. There is no direct testimony as to what in fact was done.

55 I am also told that you suffer from a bowel disorder (which is likely to correct in time) and that it makes life more difficult for you that normal, and that it is necessary that you be imprisoned in a secure environment for your own protection, and that it is likely to remain the case indefinitely. Both of those things are bound to make your time in prison considerably more onerous than if you were completely fit and in mainstream detention and therefore I treat them as reasons for leniency.[15]

56 Regrettably, however, I see very little sign of genuine remorse. Despite such co-operation as you gave the police and your offer to plead guilty to manslaughter, you told police when interviewed that you had no regrets about what you had done to the deceased. As far as I can see that remains the position. Nothing which I have seen of you in the course of the trial, and nothing which has been submitted on plea, suggests that you feel any sense of contrition. You made an apology to the deceased's family when interviewed by police and again moments after the verdict was announced. But the timing of those utterances was telling. It is one thing to be sorry for the situation in which you find yourself, and for that reason to utter the sorts of platitudes that you may think will ameliorate your position. It is quite another to be truly sorry for what you have done.[16] In any event, as your counsel put it on your behalf on the plea, you remain of the view that the circumstances warranted you in shooting the deceased - you are not sorry because you remain of the view that you had no alternative - and there is no reason to think that your attitude is likely to change within the foreseeable future.

57 Plainly, there is a need to impose a sentence on you which may persuade you to the contrary the view.

58 The last of the sentencing considerations to which I am bound to have regard is current sentencing practice, and it is a factor about which views are likely to differ. Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years' imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed ten years and were frequently less, although there were cases in which they ranged as high as 13 years.[17] Following the increase in the maximum to years to 20 years' imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.[18]

59 For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose.[19] Since the maximum sentence is now 20 years' imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.

60 Balancing the considerations to which I have referred, I have determined that you should be sentenced to fifteen (15) years imprisonment. The effect of s.16(3C) of the Sentencing Act 1991 is that, subject to contrary order, the sentence which I am to impose on you should be served cumulatively on the sentence of four years imprisonment which you are currently serving for the offences of which you were convicted in the County Court on 31 March 2004 and the sentence of one month's imprisonment which was imposed on you in the Magistrates' Court on 24 May 2004. I am not prepared to make a contrary order. I reject submissions made on your behalf that the totality principle requires some degree of concurrency in order to avoid a crushing sentence. Pursuant to s.14 of the Act, however, I have determined to set a new non-parole period of only thirteen (13) years to run from this date [20] in respect of all sentences. While nothing has been submitted on your behalf that necessarily warrants a total non-parole period as short as that,[21] I am mindful of your difficult upbringing, the hardship of the life which you have led to date, and the hardship which you will face in prison, and I am hopeful that the prospect of parole may provide an incentive for your rehabilitation.

61 I shall also make orders pursuant to s.78(1) of the Confiscation Act 1997 for the forfeiture to the State of the items of personal property that were used or capable of being used in connection with the manslaughter of the deceased.

62 AB, on the count of manslaughter of Hasam Zayat of which you have been convicted, I sentence you to fifteen (15) years' imprisonment. Pursuant to s.14 of the Sentencing Act 1991, I set a new non-parole period of thirteen (13) years' commencing this day in respect of all sentences which you are to serve or complete. I declare that the period to be reckoned as already served under the sentence I have imposed on you is two hundred and seventy one (271) days inclusive of today's date. Finally, I direct that there be noted in the Court's records the fact that the declaration has been made and its details and I make the order for confiscation of property to which I have referred.

[3] DPP v Kallipolitis, Unreported, VSCA, 8/5/98 at 8; R v Ramage [2004] V.S.C. 508 at [38].

[4] R v Mordecai (1985) 18 A. Crim. R. 149 at 154, per Wallace, J.

[5] R v Moore [2002] VSCA 33 at [16], per O'Bryan, A.J.A.

[6] Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 C.L.R. 47 at 68, per Windeyer, J.; R v Osip [2000] VSCA 237; (2000) 2 V.R. 595 at [46], per Batt, J.A.

[7] cf. Veen v The Queen No 1. (1979) 143 C.L.R.458 at 490, per Windeyer, J.

[8] DPP v SJK & GAS [2002] VSCA 131 at [64].

[9] R v Collins & Ors. Unrep. CCA, 26/11/ 84, per Tadgell, J.

[10] R v Bellingham & Fenton [2002] VSCA 35 at [13], per Winneke, P.; R v Mohammed [2004] VSC 423 at [46]; cf. R v Downie and Dandy [1998] 2 VR 517 at 520-522; R v Lim & Ko [1998] VSCA 54 at [34].

[11] R v Miller [1995] VicRp 60; [1995] 2 V.R. 348 at 353-4.

[12] R v Gray [1977] VicRp 27; [1977] V. R. 225 at 229-230; Fox & Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at [3.721] - [3.722].

[13] It was tendered on the plea when you were sentenced in the County Court in 2004, and I was invited by your counsel to take that plea into account.

[14] Cf. R v Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398 at 400.

[15] R v Smith (1987) 44 S.A.S.R. 587 at 589; R v Boxtel [2005] VSCA 175 at [29]- [30]; R v Bangard [2005] VSCA 313 at [14].

[16] R v Jabaltjari (1989) 64 N.T. R. 1 at 10, per Asche, J.; Fox & Frieberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at [3.802].

[17] See, for example, R v Williscroft & Ors. [1975] VicRp 27; [1975] V.R. 292 at 299; R v Marsland, Unrep, C.C.A. 26/7/1976.

[18] See R v Bangard [2005] VSCA 313 at [11] per Buchanan, J.A. and at [28] per Eames, J.A.

[19] See and compare R v Giordano [1998] 1 V.R. 544 at 549.

[20] See R v Rich (2002) 4 V.R. 155 at 166[106]; R v Stares [2002] VSCA 70; (2002) 4 V.R. 314 at 320[19].

[21] See R v VZ [1998] VSCA 32; (1998) 7 V.R. 693 at 698[18] ; R v Josefski [2005] VSCA 265 at [47].

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Parties