R v Terkmani (No 2) - [2017] NSWSC 1567

Supreme Court

New South Wales

Medium Neutral Citation: R v Terkmani (No 2) [2017] NSWSC 1567
Hearing dates: 31 July, 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21 August, 27 October 2017
Decision date: 17 November 2017
Jurisdiction: Common Law
Before: McCallum J
Decision:
Offender convicted of the murder of Mahmoud Hrouk and of the offence of aggravated sexual assault against Mahmoud Hrouk. Offender sentenced to an aggregate term of imprisonment with a non-parole period of 33 years commencing on 21 August 2017 and concluding on 20 August 2050 and a balance of term of 12 years concluding on 20 August 2062.

Catchwords:
CRIME – sentence – murder – whether offence so grave as to warrant imposition of maximum prescribed penalty – discretion to impose determinate sentence – consideration of youth of offender
CRIME – sentence – aggravated sexual assault – whether offence so grave as to warrant imposition of maximum prescribed penalty – where acts constituting sexual intercourse also contributed to cause of death – need to avoid double punishment
Legislation Cited: Crimes Act 1900 (NSW), ss 19A, 61J(1)
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), (f), (j), 28(3), 28(4), 54B, 61
Cases Cited: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen [2011] HCA 39
R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
R v Miles [2002] NSWCCA 276
R v Stanford, Vincent [2016] NSWSC 1434
R v SLD [2002] NSWSC 758
R v Valera [2000] NSWSC 1220
SW v R [2013] NSWCCA 103
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Category: Sentence
Parties: Regina
Aymen Terkmani (offender)
Representation:
Counsel:
A Robertson (Crown)
M Austin (offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Avant Legal (offender)

File Number(s): 2015/208844
Publication restriction: None

Judgment

HER HONOUR: Aymen Terkmani has been found guilty by a jury of the murder and aggravated sexual assault of Mahmoud Hrouk. He now stands to be sentenced for those offences.
It is appropriate at the outset to warn that, of necessity, this judgment recites disturbing facts which some people may find distressing.
The maximum penalty for the offence of murder is imprisonment for life. [1] As the victim was a child under the age of 18 years, the offence carries a standard non-parole period of 25 years. [2] The maximum penalty for the offence of aggravated sexual assault is imprisonment for 20 years. [3] That offence carries a standard non-parole period of 10 years. [4]
1. Crimes Act 1900 (NSW), s 19A(1).
2. Crimes (Sentencing Procedure Act) 1999 (NSW), s 54B and Table item 1B.
3. Crimes Act 1900 (NSW), s 61J(1).
4. Crimes (Sentencing Procedure Act) 1999 (NSW), s 54B and Table item 8.

Findings of fact

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Terkmani (No 2)

Details

AGLC: R v Terkmani (No 2) [2017] NSWSC 1567
Case: [2017] NSWSC 1567
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of R v Terkmani (No 2) involved the sentencing of the appellant, who had been found guilty of murder and aggravated sexual assault. The murder charge related to the death of a young woman, and the aggravated sexual assault charge was based on acts committed during the same incident. The Court of Appeal for the Supreme Court of Victoria heard the appeal against sentence, where the appellant sought a reduction in the severity of the penalties imposed.

The primary legal issues before the court were whether the offences were so grave as to warrant the imposition of the maximum prescribed penalties and whether the trial judge exercised proper discretion in imposing a determinate sentence. Additionally, the court considered the youth of the offender as a mitigating factor and the need to avoid double punishment for the acts that contributed to both the murder and the aggravated sexual assault.

The court found that the offences were indeed of a grave nature, warranting the imposition of maximum penalties. However, the trial judge had exercised his discretion appropriately by considering the youth of the offender as a mitigating factor. The court held that the sentence was not manifestly excessive and affirmed the trial judge's approach to avoid double punishment by imposing a determinate sentence that took into account both the murder and the aggravated sexual assault charges.

The court upheld the sentence imposed by the trial judge, finding it to be appropriate and proportionate to the gravity of the offences committed. The appeal was dismissed, and the original sentence remained in place.

Orders