R v Loughnane
[2025] VSC 41
•14 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0173
| THE KING | Crown |
| v | |
| TOBY LOUGHNANE | Accused |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2024 |
DATE OF SENTENCE: | 14 February 2025 |
CASE MAY BE CITED AS: | R v Loughnane |
MEDIUM NEUTRAL CITATION: | [2025] VSC 41 |
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SENTENCE – Murder – Fatal assault of intimate partner in context of drug abuse and history of domestic violence – Offender disposed of deceased in shallow grave in bushland – After approximately two years, offender revealed location of shallow grave – Remains recovered – Priors for domestic violence – Offender maintaining innocence of murder – Head sentence of 28 years’ imprisonment – Non-parole period of 20 years’ imprisonment – The Queen v Kilic [2016] 259 CLR 256 – DPP v Ristevski [2019] VSCA 287 – Skeates (a pseudonym) v The King [2023] VSCA 226 – Walters v The Queen [2013] VSCA 164.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill Ms S Holmes | Office of Public Prosecutions |
| For the Accused | Ms D Sala | Stary Law |
HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
Toby Loughnane, on 28 June 2024, a jury found you guilty of the murder of Maryam Hamka on 11 April 2021. The guilty verdict necessarily means that you fatally assaulted Ms Hamka intending to at least cause her really serious injury. The jury rejected your defence that Ms Hamka died from a drug overdose. You continue to deny your guilt of the murder.
You had been in an intimate relationship with Ms Hamka since January 2020. The relationship was marred by drugs, and violence on your part.
On the evening of 10 April 2021, you and Ms Hamka went to your Brighton apartment in Well St. The apartment belonged to your mother, who lives in New South Wales, but you were living there and renovating it. Ms Hamka would stay there from time to time.
Both you and Ms Hamka were addicted to drugs and both of you used drugs at the apartment as the night unfolded.
During the evening, Ms Hamka spoke twice over the phone with her friend Shane Allan, first at 10.17pm, then at 11.35pm. Allan advised her to get a taxi and leave because he thought she sounded out of it and unsafe. At 11.41pm, Ms Hamka sent Allan a message “Betting (sic) in a taxi soon.”
At 11.45pm when Ms Hamka was very drug affected and rolling around on the floor, naked from the waist down, you made a demeaning video of her which was later found by police. In the video, your voice can be heard, mocking her for, amongst other things, having had too much GHB or “juice”.
In the early hours of 11 April 2021, three neighbours in the same apartment block[1] heard sounds coming from your apartment, sounds of a woman in distress, screaming and sobbing. The noises went on for a couple of hours, subsiding around 3am.
[1]Bruce and Elizabeth Andrews, Nicole Abbott.
It is likely that Ms Hamka died around this time. At 4.37am and 4.41am, two messages were sent on Ms Hamka’s phone to Mr Allan who thought the wording didn’t sound like her.
A former friend of yours, Oscar Newman,[2] attended your apartment about 1.15pm on 11 April 2021. He had keys and let himself in. He yelled out but no one responded. He noticed blood on the carpet. He went upstairs. From the doorway of Bedroom 2, he could see a syringe and faeces on the bedroom floor. He could also see Ms Hamka seemingly passed out in the ensuite shower, naked and sitting upright. The shower was not on. Her face was swollen. Ms Hamka did not respond to him calling her name. He did not enter the ensuite.
[2]Trial Transcript 252–266, 294-321.
Shortly after, Newman found you in Bedroom 2, passed out on the bed, fully clothed. He shook you hard but you did not wake up. He thought you had passed out from too much GHB or “juice, ” as he had observed several times before.
Newman left.
He returned the next day and spoke to you. You told him that Ms Hamka had overdosed. Because of the blood he had seen, he asked “Did you hit her?” You didn’t respond; you were silent. Newman suggested you call an ambulance. You said “I can’t, I can’t, I’ll get done for manslaughter.” Instead you borrowed the keys for Newman’s Mazda which you later used to dispose of Ms Hamka’s body.
You set about cleaning up the apartment over the next few days. On 12 April 2021, you purchased cleaning products from the local Coles. You asked Newman to get you a steam cleaner, which he did a few days later.
On the night of 12 – 13 April 2021, you moved Ms Hamka’s body from the apartment to the Mazda.
On the afternoon or evening of 14 April 2021, you drove down to Cape Schanck in the Mazda, dragged Ms Hamka’s body into bushland and disposed of her body in a shallow grave, returning to your apartment in the early hours of 15 April 2021.
Also on the 15 April 2021, you sent a couple of messages to Ms Hamka’s phone, pretending that you believed she was still alive.
On the afternoon of 15 April 2021 – following a missing person’s report by Ms Hamka’s family – police attended your apartment to do a welfare check on Ms Hamka. You spoke to them just outside your front door. You told them that you hadn’t seen her for four days and had last communicated with her two days earlier.
On 16 April 2021, police re-attended and entered your apartment. They were met by an overpowering smell of cleaning products. There were towels and sheets in the bathtub, soaking. They found bleach and other cleaning products. They found you on the bed in Bedroom 2.
You were arrested and interviewed but feigned ignorance of Ms Hamka’s whereabouts. In a callous display, you suggested it was “disgraceful” that Ms Hamka’s family weren’t assisting the police more with their inquiries.
You have been in custody since 16 April 2021 but initially for unrelated offences.
On 25 August 2021, you were charged with Ms Hamka’s murder.
On 15 February 2023, Oscar Newman made a statement to police which implicated you.
On 27 February 2023, Oscar Newman pleaded guilty to assisting an offender (manslaughter) and gave an undertaking to the court to give evidence against you.
On 5 May 2023, in the wake of Newman having implicated you in Ms Hamka ’s death and on your instructions, your solicitors informed police of the approximate whereabouts of Ms Hamka’s grave.
On 7 August 2023, after a number of unsuccessful police searches, one of which you attended,[3] police located the shallow grave in which you had concealed Ms Hamka’s body. Ms Hamka’s cranium had fractures to the orbit of the right eye, the nasal bones and the right jaw. These fractures were due to blunt force impact around the time of Ms Hamka’s death but it was not possible to determine whether they occurred shortly before or after her death. The state of her remains – no soft tissue and an incomplete skeleton (probably due to animals foraging) – prevented determination of the cause of death.[4] Consequently, it is not possible to be precise about how you physically and fatally assaulted Ms Hamka on the night of 10 to 11 April 2021.
[3]You attended on 17 May 2023.
[4]Hans De Boer, pathologist, trial transcript, 475.
An important circumstance of your offence is that you murdered Ms Hamka in the context of long-term domestic violence: the fatal violence you inflicted on her on 11 April 2021 was not an isolated incident. Evidence was given at your trial of incidents in July 2020, February 2021 and March 2021, evidence which I accept.
Wendy Ithier[5] told the jury that very early on the morning of 9 July 2020, she was working at Coles in Brighton when a co-worker drew her attention to Ms Hamka who had presented at the Coles store with swollen eyes and lips, injuries to her wrists and bleeding from the nose. Ms Ithier administered First Aid. Ms Hamka told her that her boyfriend had bashed her, put his fingers down her throat and a sock in her mouth: she said she thought she was going to die. He had also taken her phone. She would not agree to Ms Ithier calling the police. Instead, Ms Hamka used Ms Ithier’s phone to speak to her brother, Ayman Hamka, who called the police and ambulance.
[5]Trial transcript 88–89.
Kylie Zammit[6] told the jury that on 20 February 2021 she went to dinner at your apartment at your invitation. Ms Hamka was also present. During the evening you accused Ms Hamka of stealing from you and, from upstairs, you threw a charger at Ms Hamka who was downstairs. The charger hit her in the back of the head. You also threw a small ladder at her from upstairs but it missed. Ms Zammit said you then came downstairs in a rage and punched and kicked Ms Hamka in the head and face and back.
[6]Trial transcript 222–234.
Ms Hamka’s sister Hanna[7] told the jury that on 6 March 2021, Ms Hamka was visiting the family home. She was in the bathroom upstairs. You arrived and came upstairs. You had a knife and went into the bathroom, locking the door behind you. Ms Hamka began screaming. Hanna’s partner broke into the bathroom with a bat. You left.
[7]Trial transcript 143.
The domestic violence during your relationship with Ms Hamka included a torrent of highly abusive text messages in which you repeatedly threatened to torture and kill her, including by shooting her, drowning her, setting her on fire and slicing her face off. In one text message you said you would make her “scream in agony.” You also said you would make her kill herself and that you would get your mates or associates to harm her. You also sent abusive text messages to friends of hers, indirectly threatening Ms Hamka, text messages such as “tell Maryam she’s dead.” The text messages make for appalling reading. And you sent similarly appalling voice messages to Ms Hamka from time to time.
Victim Impact Statements
Ms Hamka was only 37 when you violently ended her life. She of course was your primary victim but she is not the only victim of your crime.
Two of her family members made victim impact statements.
Susan Iramiyan, Ms Hamka ’s mother, says that every day she thinks about the pain and suffering her daughter went through. She visits her grave daily. She says that losing Maryam has been the hardest thing she’s ever been through in her life.
Ayman Hamka, Ms Hamka’s brother,[8] referred to the extreme impact of Maryam’s death on him and those who loved her. Her murder shattered their family. He acknowledges that whatever sentence I impose cannot undo what you have done but hopes my sentence will bring a “small measure of closure”. He asks “why would a human being put someone through so much pain, misery and take their precious life?”
[8]The first sentence of the third last paragraph of Ayman Hamka’s victim statement was inadmissible.
Objective Seriousness of Offending
I turn now to the objective seriousness of your offence. High Court authority[9] requires me to consider where your offence falls on the spectrum of seriousness for murder. The prosecution submitted that this was an upper range example of the offence of murder. The prosecution relied mainly on the circumstances that it was a killing in the context of protracted domestic violence, you then disposed of Ms Hamka’s body and did not reveal the whereabouts of her remains for over 2 years. Relying on the case of Walters,[10] the prosecution submitted that the fact that I could not be satisfied of an intention to kill, as opposed to an intention to cause really serious injury, did not necessarily make it a less serious example of the offence of murder.
[9]The Queen v Kilic [2016] 259 CLR 256, 266 [19].
[10]Walters v The Queen [2013] VSCA 164.
Your counsel submitted that it was a mid- range example of the offence of murder. He submitted that I cannot take account of the context of protracted domestic violence in assessing the objective seriousness of the murder. Your counsel did not have any authority for that submission, which I reject.
I accept the prosecution’s submission that the history of domestic violence on your part towards Ms Hamka is relevant to the assessment of the objective seriousness of your offence:[11] your offence was not an isolated outburst of violence towards Ms Hamka. But as for the disposal of Ms Hamka’s body, and the nondisclosure of the whereabouts of her remains for over two years, whilst that is obviously a seriously aggravating circumstance, which I have taken into account in the determination of your sentence,[12] I have not taken it into account in the assessment of the objective seriousness of your offence: unlike the context of a history of domestic violence, which existed at the time of the murder on 11 April 2021, the disposal of the body came several days later.
[11]Skeates (a pseudonym) v The King [2023] VSCA 226 at [62].
[12]DPP v Ristevski [2019] VSCA 287.
Consequently, I consider yours to be an upper mid-range example of the offence of murder.
CIRCUMSTANCES OF OFFENDER
Personal History
I turn then from the circumstances of the offence to your circumstances.
The information provided to me about your personal history was limited. There was no psychiatric or psychological report.
You were born on 24 January 1980, making you 41 at the time of the murder and 45 now.
You have two younger brothers.
You were educated at Kostka Hall, then at Xavier College.
When you were 12, you father died from an aneurysm. Your mother and two brothers, who have provided character references for you, which I will refer to in more detail later, say that the loss of your father had a profound and negative impact on your life.
In your teens, you started using cannabis and alcohol and so began your descent into drug addiction. You progressed to methamphetamine, also known as “ice”.
Your behaviour at school deteriorated. You were expelled from Xavier, spent some time at St Michaels and completed your VCE at Caulfield Grammar.
After leaving school, you took some time off from education and worked part-time as a concreter. You then enrolled in a Diploma of Building and Construction. You left this course when you were offered full time work as a concreter. You have worked on and off in the construction industry ever since, not only as a concreter.
The evidence at your trial and your character references indicate that you were once married and have a daughter from that relationship. Your former wife, a Ms Venning, was also subjected to domestic violence by you. That relationship broke down around 2019.
Around the time of the current offence, according to your counsel, you were using upwards of 3gs of ice a day and 50 to 70mls of gamma-hydroxybutyric acid, better known as GHB or juice.
Criminal History
You have a very troubling criminal history because it includes priors for domestic violence.
Chronologically, the first entry in your criminal history is in 2006 for breach of an intervention order. You were aged 26. You were placed on an undertaking to be of good behaviour for a year.
In 2007, you were sentenced to imprisonment for 1 year, partly suspended for two years. The period of immediate imprisonment was 213 days, that is, approximately 7 months. That sentence was for intentionally threatening serious injury, driving dangerously, driving whilst suspended, 3 counts of breaching an intervention order and recklessly causing injury. The primary victim was a woman named Reynolds.
In 2008, you were sentenced to imprisonment for 3 years and 8 months with a non-parole period of 8 months. That was for trafficking a commercial quantity of drugs, 2 counts of trafficking drugs, recklessly dealing in the proceeds of crime and possessing a drug of dependence. I have read the sentencing remarks of the County Court judge in relation to that matter. Your drug addiction was a major contributing factor to your drug related offending.
In February 2017, you were given a combined sentence of 3 months’ imprisonment and a community corrections order (CCO) of 12 months for three counts of making threats to kill and two counts of contravening a family violence interim intervention order. The victims were Ms Venning and her mother. As mentioned, Ms Venning is your former wife. It was a condition of your CCO that you undergo assessment and treatment in relation to substance abuse.
In October 2017, you were sentenced to 4 months’ imprisonment for persistent contravention of a family violence order and committing an indictable offence whilst on bail. The victim was again Ms Venning.
In June 2018, you were given a combined sentence of 8 months’ imprisonment and a CCO for 12 months for intimidation of a person, contravening bail, unlawful assault, persistent contravention of a family violence order, recklessly causing injury and aggravated assault of a female. The main victim was again Ms Venning. It was a condition of your CCO that you undergo assessment and treatment in relation to substance abuse.
In February 2019, you were convicted and fined for contravening bail.
Finally in July 2019, you were fined for two counts of contravening a family violence interim intervention order, contravening bail and contravening a family violence final intervention order. The primary victim was again Ms Venning. You were also found to have breached the CCO imposed in June 2018 and that CCO was simply confirmed.
Character References
Four character references were tendered on your behalf.
Your mother Paula Loughnane, who lives in New South Wales but was present supporting you throughout your trial, refers to your “extreme grief and intense feelings of remorse”. She expresses her profound sympathy for Ms Hamka’s family. She attributes the “tragic events” to the “result of the destructive influence of mind altering drugs”. She writes that your life took a dramatic turn when your father, to whom you were very close, died from an aneurysm when you were young. She said you became introverted and started using drugs. She writes about the later impact on you of the suicides of close friends and mentors and your loss of motivation following the breakdown of your marriage. She refers to your efforts at drug rehabilitation and the fact that you undertook residential drug rehabilitation programs at Innisfree for four months and Dayhab for 3 months. She says that whilst in custody you have reverted to being the son she knows and loves and that you are capable of rehabilitation and redemption.
Your brother Sam writes that, when not affected by drugs, you are an “honest hardworking and responsible individual” who possesses “a caring and nurturing nature”. He does not accept that you are guilty of murder. He says you are deeply remorseful for not seeking help for Ms Hamka when she overdosed, which is to adopt the defence that you advanced at the trial but which the jury rejected. He says he will continue to support you, including with accommodation and employment in his construction company when you are released.
Your brother Patrick referred to your long standing drug addiction. He says “when not under the influence, Toby was a dedicated father and uncle, a kind hearted and generous individual who contributed positively to society. After the absence of our father, Toby acted as a fatherly figure at an early age to his younger siblings…”.
Your longstanding friend Anthony Karasavidis in his character reference highlighted the vital support you gave him after his mother died in 2018.
At times your character referees relied on your drug addiction as a mitigating factor. Your counsel, however, rightly accepted the orthodox submission made by the prosecution that whilst being substance affected might provide an explanation for the offending, or at least part of an explanation, it did not mitigate the offending. You have had many chances since your teens to get off drugs – including chances provided by court orders – but you have wasted those chances.
Whether Remorseful
Notwithstanding that your familial character references assert that you are remorseful, I am not satisfied on the balance of probabilities that you are truly remorseful, as opposed to being sorry for yourself and those close to you who have had to bear the shame and disgrace of your actions. You pleaded not guilty to murder and continue to deny that you even assaulted Ms Hamka on the 11 April 2021. You only revealed the whereabouts of her remains after Oscar Newman had implicated you in her death. The submission that you were motivated by remorse to reveal the whereabouts of Ms Hamka’s remains in 2023 was ultimately withdrawn,[13] sensibly I might add.
[13]Plea hearing transcript, 40.
Nor does the procedural history of your case persuade me of true remorse on your part. In March 2024, you offered to plead guilty to manslaughter (not murder) on the basis that you fatally assaulted Ms Hamka. In other words, you offered to plead guilty to manslaughter by an unlawful and dangerous act. That offer was rejected. At the commencement of your trial, when you were arraigned on the charge of murder before the jury panel, you pleaded not guilty to that charge but guilty to manslaughter by criminal negligence. That plea was rejected by the prosecution. The prosecution did not accept that Ms Hamka died from an overdose and that, as you claimed, you were only criminally responsible for manslaughter because you failed to get medical help for her before she died. The jury also rejected that claim. The procedural history of your case is inconsistent with an acceptance of full responsibility on your part and, as such, does not persuade me that you are truly remorseful.
Progress on Remand
You provided the results of three urine drug screens from 2022, 2023 and 2024. All were negative for illicit substances. Your counsel’s explanation for their being so few drug screens was that you have not presented to the prison authorities as drug affected.
You also provided two certificates for brief drug and alcohol and relationship courses you have completed whilst in custody.
I hope you are abstaining from drugs whilst in prison. It is extremely important for your rehabilitation.
Prospects of Rehabilitation
I am guarded about your prospects of rehabilitation, given the seriousness of this offence, your significant priors and long history of drug abuse. It is a positive that there are some negative drug screens for your time on remand but you seem to have abstained from drugs before whilst in custody but relapsed when back in the community. In your mother’s reference, she wrote that you are capable of rehabilitation and redemption. That is true. I do not deny it in saying that I am guarded about your prospects of rehabilitation.
Disclosure of Grave
As mentioned above, in 2023 you revealed the whereabouts of Ms Hamka’s remains, enabling them to be retrieved by her family. Both the prosecution and your counsel submitted that this was a mitigating factor. You will receive a sentencing discount for that disclosure, notwithstanding that for over two years, due to your concealment of the body, her family were tortured by not knowing what had become of her. The extent of the discount must be tempered by that delay.
COMPARABLE CASES
I have had regard to current sentencing practices in relation to standard sentence murders. The prosecution and your counsel referred to me a number of sentencing cases where the offender was sentenced for a murder committed in the context of domestic violence. Head sentences for these case ranged from 23 years to life imprisonment and non-parole periods ranged from 17 years to 30 years imprisonment. Whilst these cases were of some assistance to me, the sentence for each case must ultimately be fashioned having regard to the unique circumstances of the offence and the offender.
SENTENCE
The offence of murder carries a maximum penalty of life imprisonment and the standard sentence is 25 years’ imprisonment.[14] Unless I consider that it is in the interests of justice not to do so, s 11A of the Sentencing Act 1991 requires me to impose a non-parole period of at least 70% of the head sentence.
[14]Crimes Act 1958, s 3.
Given the gravity of your offending and your priors, just punishment, denunciation, specific and general deterrence and the protection of the community must be given particular emphasis. There will be a significant gap between your head sentence and the non-parole period which I hope will promote your rehabilitation should you be granted parole.
Please stand.
For the offence of murder, I sentence you to 28 years’ imprisonment. I impose a non- parole period of 20 years’ imprisonment.
I declare that you have served 1267 days by way of presentence detention.
Please remove Mr Loughnane.
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