R v Taiba

[2008] VSC 589

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1698 of 2008

THE QUEEN

v

MAHMOUD TAIBA

---

JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2008
DATE OF SENTENCE:	23 December 2008
CASE MAY BE CITED AS:	R v Taiba
MEDIUM NEUTRAL CITATION:	[2008] VSC 589

---

Criminal law – Plea – Defensive Homicide – Sentenced to 9 years imprisonment with a non-parole period of 7 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S. Cooper	Office of Public Prosecutions
For the Accused	Mr P. Higham	James Dowsley & Associates

HIS HONOUR:

1. Mahmoud Taiba, on 24 November 2008 you pleaded guilty before me to one count of defensive homicide.  That offence relates to your killing of Haysan Zayat on 6 February 2007.

1. The crime of defensive homicide has only recently been included in the statute books.  It was introduced in the amendments to the Crimes Act 1958 in the group of amendments which, among other things, abolished the partial defence of provocation. The Law Reform Commission had recommended the restoration of the common law notion of excessive self-defence as it had existed prior to Zecevic v DPP.[1]  The legislature dealt with that recommendation by the introduction of the offence of defensive homicide.

   [1]Zecevic v DPP (1987) CLR 645.

1. It follows that the Crown accepts in the present case that you believed it was necessary to do what you did to defend yourself from death or serious injury, or at least that the Crown cannot disprove that proposition.  The Crown, on the other hand, can prove that your belief was not based on reasonable grounds and by your plea you accept that.

1. The settlement of the case on those terms, although merciful, was appropriate.

1. The offence arose in the following way:  On Tuesday 6 February 2007, you went to the home of the deceased at 1 Templewood Avenue, Noble Park.  You armed yourself with a knife.  The deceased was in bed.  On entering the bedroom, you stabbed him three times to the chest and he died as a result.

1. Shortly prior to that, Brae Harkin, the former girlfriend of the deceased, arrived at the home.  She saw you stab the deceased.

1. You stole property from the house, threatened Brae Harkin and left.  You stole Brae Harkin’s car.  Brae Harkin called the police.

1. At that time, you had known the deceased for about 20 years but had been more friendly with his two brothers, both of whom are deceased.  During 2006, you had been purchasing the drug “ice”[2] from the deceased and had accumulated a debt of $2000.  You were being pressed for payment.

   [2]Crystal methamphetamine-hydrochloride.

1. At the time of his death, the deceased was suffering from a back condition which was causing him severe pain.  He was frequently confined to bed.  He was being supported by Brae Harkin who, among other things, assisted in his drug dealing business by keeping the books.  The deceased was dealing in “ice” only.  Brae Harkin had been Zayat’s girlfriend up until March 2006.  She was using “ice” daily late in 2006 and into 2007, in small quantities.

1. At a date reasonably close to the death, either the night before or a week earlier, she heard the deceased on the telephone threaten to kill a person who she believed was you.  The deceased owned a 9mm semi-automatic pistol.  The deceased was addicted to “ice”, which he was using very frequently.

1. You had been living with your girlfriend, Mary Marasco, at 2/36 Bowmore Road, Noble Park.  Your relationship with Ms Marasco was a difficult one.  It had lasted about five years, but at a time close to the events, she had been threatening to end it.  About a week prior to the killing, she had moved out of the flat and was trying to find a place to live.  You were upset by that, depressed and using an increasing amount of drugs.  She was staying with both the deceased and Harkin at their respective addresses.

1. On Monday 5 February, Marasco and Harkin were both present at the deceased’s place.  Harkin had taken some groceries around.  Later that night, the two women left the house and met you.  You travelled around in Harkin’s car with them, but they dropped you off at Bowmore Road and went back to the deceased’s.  In the early hours of Tuesday, Brae Harkin took Mary Marasco back to Bowmore Road.  You had left Bowmore Road before they arrived.  You had gone by taxi to the deceased’s house.

1. Brae Harkin returned as noted earlier and observed the stabbing.  You then asked for the deceased’s gun, she told you where it was.  You stole it, together with the deceased’s wallet, two laptop computers and a digital camera.  When threatening Harkin, you told her not to call the police.

1. You returned to Bowmore Road where you spoke to Marasco.  You appeared to be distraught.  She noticed that you had Harkin’s car and some of the deceased’s property.  You collected some of your belongings and Marasco drove you to Oakleigh train station.  She went back to Templewood Drive, but when you saw the police, she drove off and left the car at McDonald’s in Noble Park.  You subsequently told the police where it was and gave them the ignition key.

1. In the meantime, you had travelled to Greenvale where you met one Shawn Walker, who bought you new clothes and a new mobile phone.  The two of you met Nina Avdic, who you arranged to book a motel room in her name which she did at Airport Lodge, Tullamarine.  You moved to a different hotel the next day and were eventually apprehended by the Special Operations Group on 8 February 2007.  You have been in custody ever since.

1. When you were interviewed by the police, you at first denied any involvement, but later went on to say that you had gone to the house looking for Mary (Marasco).  You said you armed yourself with a knife from the kitchen.  As you went to the bedroom, Brae (Harkin) arrived and called out.  You thought that woke the deceased and you stabbed him because you were afraid he might shoot you.

1. You had gone into the bedroom looking for “ice”.  You expressed powerful affection for Marasco and you repeated those matters when formally interviewed later.  You appear to have blamed the deceased for getting Marasco onto “ice”.

1. You have a very large number of prior convictions.  From 25 court appearances you have 91 prior convictions.  Many are for dishonesty and a number for assaulting and resisting police officers.  You have prior convictions for intentionally causing serious injury and recklessly causing serious injury.

1. It had been urged on me that you, therefore, fall to be sentenced as a “serious violent offender” within the meaning of the Sentencing Act 1991, but neither defensive homicide nor manslaughter are in fact “serious violent offences”. The omission of both offences seems to indicate that it is Parliament’s intent.

1. Your history has about every hallmark of a person who has been addicted to alcohol or drugs or both over a long period of time.  It is also a reflection of your difficult background.  You are now 32.  Your family came here from Lebanon when you were about seven or eight, but you were returned there to be cared for by an aunt and uncle.  You did not get on with your mother.  You came back to Australia aged ten or eleven and were eventually made a State Ward.  Although the records do not show it, I suspect that you had a history with the Children’s Court, probably by way of care and protection applications because that appears to be the only explanation as to why you would have received a twelve month Youth Training Centre sentence for theft when you were sixteen and had no prior convictions.  You are one of six children and have the support of your brothers and sisters.  You do not seem to have much of a relationship with your parents.

1. You have never married and have no children.  Your last relationship was the one with Ms Marasco.

1. You commenced using cannabis at age fifteen and did not like it.  You moved on to heroin and “ice”.  You are drug-free at the moment.

1. According to your psychologist, Patrick Newton, whose report dated 20 November 2008 was tendered on the plea, you went to the house to get Ms Marasco.  When she was not there, you started to steal the drugs so that she would not get them.  You were worried about her becoming addicted.  When the deceased woke up, you thought he was trying to get his gun, so you stabbed him.

1. You do not suffer from any psychological disorder.  You have been educated only to year eight level.  You are seen pretty much as a loner, being largely indifferent to those around you.  Your one relationship was with Ms Marasco.  Your personality development has been affected by your background.

1. I received Victim Impact Statements from Avi Zayat, the estranged wife of the deceased, Jasmine Zayat, the daughter of the deceased, Jay Zayat, the son of the deceased, Majida and Mohamed Zayat, his mother and father respectively, and Brae Harkin.

1. I have taken those Victim Impact Statements into account.  All of the victims feel the loss of the deceased greatly.  Although estranged from his wife, the deceased supported her and the children, and the children had contact with him.  For Mr and Mrs Zayat, Haysan is the third son to have died.  They are devastated by the loss.

1. You pleaded guilty and I take that into account. I am bound by s 6AAA of the Sentencing Act 1991 to state what discount I have applied to the sentence. This is a difficult and speculative case because at a trial the charge would have been murder.[3]  Doing the best I can to identify the differences, I would have imposed a sentence of two years greater on both the head sentence and non-parole period.  I accept that you regret what you have done and your plea of guilty is some evidence of that.

   [3]R v Talj [2003] VSCA 87 [21].

1. I regard you as having some prospects of rehabilitation.  If you continue to keep away from drugs, then there is hope for you.  You have got yourself off drugs and that is very positive.  You accept responsibility for what you have done, you do not blame your background or others, that is a matter to your credit.

1. You undoubtedly were under the influence of drugs at the time you committed this offence.  That fact cannot mitigate your sentence, but it will not aggravate it either.

1. This is a serious example of a crime which carries a head sentence of twenty years.  It involved the killing of a man in his own home.  You have relevant prior convictions.

1. Just punishment, specific and general deterrence, and the protection of the community, all play a part in this sentence.

1. You are sentenced to be imprisoned for nine years with a non-parole period of seven years to be served before you are eligible for parole.

1. I declare that 684 days be reckoned as served and I direct that there be noted in the records of the Court the fact that this declaration has been made and its details.