Regina v Khalouf

[2002] NSWSC 1271

CITATION:	Regina v Khalouf [2002] NSWSC 1271
FILE NUMBER(S):	SC 70061/00
HEARING DATE(S):	15/11/01
JUDGMENT DATE:	29 January 2002
PARTIES :	Regina Ali Khalouf
JUDGMENT OF:	O'Keefe J

COUNSEL :	Crown - Mr B Smith Prisoner - Mr P King
SOLICITORS:	Crown - DPP (NSW) Prisoner - Ross Hill & Associates
CATCHWORDS:	Criminal law - Murder - Killing of female by 49 year old male - Stabbing - Multiple wounds to chest area - Anger and resentment on part of prisoner - Infatuation - Liaison between prisoner and deceased - No finding of premeditation - No remorse - Murder in high category of blameworthiness - Need for heavy penalty - General deterrence - Victim impact statements - Medical condition of prisoner - Age not a factor in reduction of sentence in instant case - Special circumstances - age combined with medical condition of prisoner
LEGISLATION CITED:	Crimes Act 1900: s 19A(1) Crimes (Sentencing Procedure) Act 1999: ss 21, 23, 24
CASES CITED:	Regina v Storey (1997) 89 A Crim R 519 Regina v Isaacs (1997) 90 A Crim R 587 Savvas v The Queen (1995) 183 CLR 1 Regina v Ho Jun Heo (NSWSC, 21 May 1993, unreported) Regina v Twala (NSWCCA, 4 November 1994, unreported) Regina v Nixon (NSWCCA, 31 October 1995, unreported) Regina v Cheung (NSWCCA, 11 December 1995, unreported) Regina v Leonard [1999] (NSWSC 510, 28 May 1999, unreported) Regina v Serratore [2000] (NSWSC 696, 20 July 2000, unreported) Regina v Sellen (NSWCCA, 5 December 1991, unreported) Regina v Privatera (1997) 94 A Crim R 76 Bollen v Regina (1997-1998) 99 A Crim R 510 Regina v Bell (1985) 2 NSWLR 466
DECISION:	Sentence to imprisonment for 20 years to commence on 18 February 2000 and expire on 17 February 2020. Special circumstances found. Non parole period to conclude on 17 August 2013. The prisoner will become eligible for parole on 18 August 2013.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

O’Keefe J

29 January 2002

HIS HONOUR:

INTRODUCTION

1 Ali Khalouf (the prisoner) was arraigned on 6 October 2000 on a charge of having murdered Rebecca Diab (Mrs Diab) at Bass Hill in the State of New South Wales on or about 18 February 2000. He pleaded not guilty. The date originally fixed for the trial was vacated and a new date of commencement fixed for 13 July 2001. On that date application was made on behalf of the prisoner for an adjournment for a short period to enable other counsel to be brought into the matter. That application was acceded to and the trial was adjourned until 23 July 2001, on which date the prisoner maintained his plea of not guilty and the trial commenced.

2 On 10 August 2001 the jury returned a verdict of guilty of murder and the prisoner was remanded in custody to a date to be fixed so as to enable the Crown to obtain a pre-sentence report and the Crown and the defence to prepare for a hearing on sentence. This took place on 15 November 2001.

3 At the sentence hearing the Crown tendered a pre-sentence report prepared by an officer of the Corrective Services Department, and several victim impact statements. Counsel for the defence elected not to call the prisoner or any other evidence on behalf of the prisoner.

THE ONUS AND STANDARD OF PROOF

4 The decision of the court on sentence is an important matter for a prisoner. It has often been said that in some instances it is no less important than the decision as to the guilt or otherwise of the prisoner. The standard of proof in a sentencing hearing is the same as it is in a trial, namely proof beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict of guilty. In Regina v Storey (1997) 89 A Crim R 519 a specially constituted Court of Criminal Appeal in Victoria confirmed this statement of the law. Winneke P, Brooking and Hayne JJA and Southwell AJA said:

“The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities” (at 530)

5 In determining what facts are adverse to the interests of the prisoner and what are favourable, the Court must ask what the tendency of the facts is in the particular case under consideration. As was said in Regina v Storey (supra):

“’Aggravating’ and ‘mitigating’ must be understood in a wide sense and without, eg, drawing the distinction which might be drawn between the significance for another purpose on the one hand of a circumstance which renders the crime more serious (eg, the use of a weapon) or on the other hand of a prior or subsequent conviction.
The test is not what tag should be applied to any particular fact but what use the judge proposes to make of the fact in relation to the offender. If it is a use adverse to the interests of the offender then proof beyond reasonable doubt is required; if it is a use in favour of the offender then proof on the balance of probabilities will suffice.”

and:

“We have spoken of disputed ’facts’ … there may be a large number of facts which it is contended demonstrate a relevant conclusion. Just as on a trial the Crown does not have to prove every fact on which it relies beyond reasonable doubt in order to conclude that the offence is proved, so too on sentencing, attention must be directed to the relevant issue and it is the issue that must be established to the requisite standard – not each of the individual facts which is said to bear upon the issue.” (supra at 531 – 532)

6 The law of New South Wales accords with these statements. (Regina v Isaacs (1997) 90 A Crim R 587 at 592.)

7 In determining, as I must, the facts on which the sentence is to be imposed upon the prisoner in this case (Savvas v The Queen (1995) 183 CLR 1) I have applied the law as set out above in the light of the verdict of the jury.

STATUTORY MATTERS

8 The penalty provided for murder in s 19A(1) of the Crimes Act 1900 is imprisonment for life. However the Court is empowered to impose a lesser term (Crimes (Sentencing Procedure) Act 1999, s 21).

9 Considerations of retribution, deterrence and rehabilitation are material to the sentencing of the prisoner.

10 The Crimes (Sentencing Procedures) Act 1999 makes provision for regard to be had to a number of considerations. These include the nature, extent, significance and usefulness of the assistance given by the offender to the authorities, the truthfulness, completeness and reliability of any information or evidence provided by the offender, the timeliness of any such assistance and the likelihood as to whether or not the offender will commit further offences after release (s 23). In addition in imposing a sentence the Court must take into account any time which the offender has spent in custody in relation to the particular offence (s 24(a)). Furthermore, the age and antecedents of the prisoner are relevant considerations. So too is the effect of the offence on the victim and the family of the victim, but this is to be understood in the manner defined in the decided cases.

THE MURDER - FACTS

11 Mrs Diab was killed late on the night of 17 February 2000 in room 506 at the Rydges Hotel at Bass Hill. She was dead before midnight. The evidence of Mrs Mughelli makes this clear. She was in the room next door to the room occupied by Mrs Diab and the prisoner. She was particularly well placed to hear what was going on in the next room and was an acute and intelligent person whose memory of events was good. Her evidence, which I accept, establishes that throughout the period between approximately 10.30pm and 11.45pm on the night in question, she heard raised voices - one male, one female. There was yelling and shouting. It was loud enough for her to hear it over the television which was playing in her room. However, although she could hear it, she was not able to understand what was being said, since it was in a foreign language. At about 11pm, she heard the shower in room 506 start up. The sound of the shower continued for nearly 30 minutes, but the argument did not cease. It was sufficiently disturbing for her to plan to knock on the door of room 506 to ask the occupants to be quiet. Then, at about 11.45pm, everything became quiet in room 506. Mrs Mughelli fell asleep and remained asleep until about 2.30am on 18 February 2000. She then woke to hear a man’s voice coming from room 506. His voice was raised, yelling, but she was unable to understand what he was saying because it was in a foreign language. The man’s voice was the same as that which she had heard engaged in the argument with the woman, however she did not hear the woman’s voice at any time after about 11.45pm.

12 The raised male voice which Mrs Mughelli heard was undoubtedly that of the prisoner; the female voice that of the Mrs Diab. The voice which Mrs Mughelli heard at approximately 2.30am was again undoubtedly that of the prisoner. It was when he was speaking on the telephone. The phone records and other evidence confirm that a telephone call took place at this time. Such evidence supports the accuracy of Mrs Mughelli’s recollection.

13 From the foregoing, I am satisfied that the prisoner had killed Mrs Diab by approximately 11.45pm on the evening of 17 February 2000.

14 Mrs Diab’s death was the result of a large number of stab wounds that had been inflicted upon her by the prisoner. The more serious wounds were concentrated in the area of her throat, central thorax and slightly below the central thorax in areas in which there were vital organs. The conclusion expressed by the forensic pathologist, Dr Lee, was that the wounds demonstrated some 12 applications of force to Mrs Diab’s body with a knife. Her jugular vein had been severed, her carotid artery breached, her liver punctured and her vertebral column damaged. Some of the injuries inflicted by the wounds were by their very nature certain to be fatal. The force required to effect the damage to her vertebral column was substantial, indeed sufficient to damage the knife which was used to cause that injury.

15 The immediate cause of Mrs Diab’s death was loss of blood as a consequence of her stab wounds. According to Dr Lee death would have been mercifully quick once Mrs Diab’s jugular vein had been severed or her carotid artery breached in the way in which it was. Death would have come within a matter of minutes, perhaps a couple of minutes at most. Unconsciousness would have come even more quickly. This would have occurred within a matter of seconds once the major wounds had been inflicted.

16 The evidence of Dr Lee also establishes that there had been fourteen applications of force with a knife to Mrs Diab’s hands and arms. These wounds were sustained when Mrs Diab sought to defend herself from the attack on her by the prisoner.

17 The forensic evidence was that all the wounds sustained by Mrs Diab had been inflicted by the knife which was found at the scene of the murder. It had been purchased by the prisoner during the early afternoon of the murder.

18 The evidence of Dr Lee was powerful and unchallenged. I accept it.

19 The circumstances immediately before Mrs Diab was killed clearly involved an argument in which both the prisoner and Mrs Diab were engaged. The picture which clearly emerges from the evidence of Mrs Mughelli is inconsistent with the evidence of the prisoner. In his record of interview, the prisoner asserted that everything was in effect quiet, gentle and happy until midnight on 17 February 2000, when he and Mrs Diab went to sleep. He said that when they were both in bed, having been asleep, Mrs Diab went to the toilet, and when she came back she was playing with a knife that he had purchased that afternoon. He claimed that she was saying that “she was joking,” and that he tried to take the knife off her, as a result of which “she hit me on my finger”, i.e., of the left hand. When asked about details of the events which led to Mrs Diab’s death, the prisoner replied:

“I don’t know what happened. I took the knife and I found her on the floor, she was dead on the floor after two hours. I called my son and asked him to call the police to tell them what happened with me. The police came and they said, ‘What’s happened?’ The knife was still in my hand, and I told him that I, that the woman is dead.” (Answer 144)

20 This is to be contrasted with the prisoner’s oral testimony, in which he said that up until about 11pm, when his son Ahmed rang, things were friendly, with nothing being said that would upset the prisoner. However, within a very short time, perhaps seconds, of the phone call from his son, he claimed that the atmosphere changed, together with the behaviour of Mrs Diab. He said she complained about his son ringing when the two of them were together and then launched into a tirade against the prisoner and his family. He attributed to her the following:

“Son of a slut, your mother is a slut, your mother is a head of a league of sluts, your children are sluts. Tomorrow you going to go to your birthday. Your daughter is a slut and I am going to fuck your daughter because her husband is paralysed … and your daughter needs this.”

21 This language is said to have occurred at a time when the prisoner says Mrs Diab was “very upset” and took only 5-10 minutes, during which time the prisoner “was trying to calm (Mrs Diab) down to pacify her”.

22 In his oral testimony, the prisoner adhered to the evidence in his record of interview that Mrs Diab went to the bathroom. He said that she then came back to the room, where the prisoner was on the bed. However the account in his oral testimony then diverges significantly from that in his record of interview. He said:

“I was trying to talk to her gently and calmly. She came, she wanted to get on the bed so I would make love to her again. I said to her;
‘Please sit down, so we can talk together. I am tired now, and I can’t make love. Let us have mutual understanding calmly.’
She got up from the bed, and there was a cucumber on the table. She was using the cucumber on herself
…
she was inserting it on herself from the front and back
…
she was swearing and saying the same word that she used before. I asked her, ‘please remove the cucumber’. I was begging her, ‘why are you doing this to me?’ She told me,
‘I am going to hit it in your mum and dad’
…
‘I am going to put it in your mother and father and dad and the whole family. Your whole family. And if you are thinking of going back to your wife, you’re not going to go back to your wife unless I am going to kill you and kill myself first. I will kill you and kill myself.”’

23 He then gave evidence that the cucumber fell on the floor and he got up from the bed in order to pick it up. As he was bending over she then hit him on the shoulder “with the sole of her foot”. At this time, he was trying “to be very, very calm with her”.

24 When asked what happened next, he said in his oral testimony:

“When I got up from the floor, and I was going back to the bed, she pulled out a knife and charged me. She hit me the first time and the second time and then other times in my hands and she jumped on me on the bed … I thought that my hand had blown away.”


He then said:

“I remember after she charged at me while I was on the bed, I remembered taking the knife and hitting her, and after that I don’t remember anything
…
I took the knife and hit her, and after that I don’t remember anything that happened.”

25 The testimony given by the prisoner in relation to his being kicked in the left shoulder by the sole of Mrs Diab’s foot is inconsistent with the answer given by him in his record of interview. In it he said that he was on the bed, took the knife off her “and then she fell on me because her knee hit my shoulder, my shoulder is hurting and then I don’t know what happened.” (Answer 212) It is also to be contrasted with further evidence given by the accused when the inconsistency was later pointed out to him when he said:

“I am telling you, it was either her knee, or the sole of her foot. I didn’t see her.”

26 Furthermore, he did not explain the discrepancy in relation to where he was at the time of the alleged assault by Mrs Diab. In one version, he was standing, leaning over whilst picking up the cucumber; in another, he was lying on the bed.

27 The jury rejected the prisoner’s claim that he acted in self-defence. The jury also rejected the claim by the prisoner to have been provoked into doing what he did.

28 The oral testimony given by the prisoner was inconsistent, both internally and with his record of interview. It was also inconsistent with the evidence of Mrs Mughelli. His record of interview also conflicts to an extent with evidence given by his son. The prisoner did not present well. I did not find his evidence convincing; indeed, to the contrary.

29 His attempt to vilify Mrs Diab by asserting that she used the most filthy language, which was language of a kind likely to be extremely insulting to a Lebanese man, is inconsistent with his record of interview. In it, there is no suggestion of any filthy language by Mrs Diab and when, at the end of the interview, he was asked if he had anything he wanted to add or to tell the police about the matter, he replied in the negative. He did not add anything about any such language, or about any attack on him by her.

30 The record of interview was taken reasonably proximately to the events which led to the trial of the prisoner. He was not forced to take part in the interview at that time. Indeed, he was given an opportunity to defer further questioning. He declined this opportunity. He had the benefit of a qualified interpreter, and so there is no question as to his proper understanding of the questions nor as to the accuracy of translation of his responses. He said nothing in his interview about any attack upon him by Mrs Diab. The picture painted in the record of interview was one of happiness and serenity. There was no suggestion of any altercation between them. The minor cuts which he received were, according to him, occasioned when, in the course of a playful interlude in which Mrs Diab said she was “joking” and “kidding”, he took the knife from her as they were rolling together on the bed.

31 I do not accept the evidence given by the prisoner that Mrs Diab used language of the kind set out above, or any language of a like kind, to him. I have no doubt that this evidence is an afterthought, designed to support a defence of provocation. Likewise, I reject his evidence that Mrs Diab charged him with a knife. It too is an afterthought intended to support his defence of self defence. His evidence that “she pulled out a knife and charged at me” (T 519; italics added) verges on the absurd. Mrs Diab was, on the evidence of the prisoner, naked. From where did she pull out the knife? If she charged him with a knife in her hand, why did he give the version of events which he gave in his record of interview? The answer to these questions is, without doubt, that his evidence in this regard was a fabrication. The jury rejected his defences of self defence and provocation. I reject the detailed testimony which he gave supporting such defences. The minor cuts on his hands were incurred as he wielded the knife and Mrs Diab sought to defend herself. The somewhat more obvious cut on one of his hands was, as the evidence of Dr Franco and Dr Lee shows, self-inflicted. I also reject his claim that he said nothing in the record of interview about filthy language directed at him by Mrs Diab out of some sense of chivalry towards her, that he did not wish to blacken her in any way.

32 The picture which clearly emerges and which I find is one in which there was a dispute between the prisoner and Mrs Diab. I have no doubt that the dispute arose because Mrs Diab told him that she wished to discontinue their association and that he was not prepared to allow this to happen. He was infatuated with her and had been for some time, as is evidenced by his repeated phone calls to her from Melbourne and his journeys to Sydney to see her. I am further satisfied to the relevant standard that when the prisoner was unable to convince Mrs Diab to leave her husband and children and go with him, he killed her, using the knife which he had purchased that afternoon.

33 That the prisoner was infatuated with Mrs Diab is supported by evidence from a number of the sources. For example, although he was in Melbourne he rang her frequently. The evidence of his sister, Mrs Assaad, establishes this. She said that when her brother came to Melbourne he said he was thinking of asking Mrs Diab “if she could go with him to live in Melbourne”. Later, when her attention was drawn to a statement that she had made shortly after the killing, she agreed that the prisoner said “he wanted to marry (Mrs Diab) and bring her to Melbourne”, and that when he spoke to her on the telephone he was “always happy and laughing”. These telephone conversations were undoubtedly frequent and tended to be secretive on the part of the prisoner. He used to take his mobile phone out into the backyard to speak to Mrs Diab. The telephone calls by the prisoner to Mrs Diab continued into 2000. Whilst they may not have been every day, they were frequent. Furthermore, it was common ground that over a period of approximately twelve months preceding Mrs Diab’s death, she and the prisoner went to the Gardenia Motel on an average of two to three times per month, where they occupied the same room – paid for by the prisoner. In addition, an admission was made that the prisoner travelled from Melbourne to Sydney and Sydney to Melbourne on a number of occasions. These would undoubtedly have been to enable his liaison with her, which was then underway, to continue. The prisoner and Mrs Diab also visited the Padstow RSL on no fewer than 30 occasions between 15 July 1999 and 5 December 1999.

34 The prisoner rang Mrs Assaad’s home in the early hours of the morning following the killing. In the course of his telephone conversation he referred to the deceased as “my wife”. Mrs Assaad confirmed that her brother had a very bad temper, used to get very angry and shout a lot. Her evidence shows that he was clearly a person who was capable of anger and behaviour associated with anger.

35 The foregoing matters reinforce the conclusions to which I have come that the prisoner was obsessional about his association with Mrs Diab, and that it is not sensible to accept that it was the prisoner who was proposing to break off the association.

36 I am satisfied that the multiple stab wounds inflicted by the prisoner on Mrs Diab were inflicted in anger and resentment because Mrs Diab would not comply with the prisoner’s wishes.

37 After the killing, the prisoner took beer from the refrigerator in the room and consumed it. He also smoked a number of cigarettes. I have no doubt from the physical evidence found in the room the he also had a sleep, and as the evidence of Mrs Mughelli clearly demonstrates, he had a shower. All this occurred before he had a conversation with his son and even then, he was anxious for the police not to be called until later.

38 He spoke to his son Ahmed Khalouf at around 2.32am. The conversation was in Arabic. He said, “I think I have committed a crime”. When asked what he meant by this, he said; “I think I have killed her.” His son quickly informed the prisoner that the police would have to be informed, and that it would be necessary “to explain to them what happened.” In the course of this conversation, the prisoner seemed calm. His son said that he would ring another relative and then ring his father back. This occurred a short time later. In the course of this conversation, the prisoner asked his son to make sure that the police called the ambulance. In a third call, the son ascertained where his father was and the prisoner asked his son if he could defer calling the police “until the morning” so that he could have a sleep, notwithstanding that he had earlier said that he had “just woke up” and that Mrs Diab had been “laying there … for two hours”. Very correctly, the son rang the police, who subsequently attended at the scene.

39 In the course of his evidence, Ahmed Khalouf confirmed that he had telephoned his father at about 11pm on the night of 17 February 2000 and had a short conversation with him. He had rung his father because he was worried. In the course of the conversation, he asked his father why he didn’t tell him “something was wrong”. His father replied; “There was nothing wrong, I was out with a friend.” Later, the son challenged his father as to why he had not told him that something was wrong when he phoned at 11pm. The prisoner responded, “I was fine, there was nothing.” This answer does not fit with the evidence of Mrs Mugelli.

40 In his evidence, Ahmed Khalouf said that the prisoner had told him in one of the conversations that occurred early in the early hours of 18 February 2000:

“She hit me with a knife, she attacked me … she hurt me on my hand, my finger.”

41 He was cross examined on a statement which he made, and in the course of this cross examination was asked:

“Q - In one of those conversations with your father, is it correct to say you asked him: “How did you do it?”
A – Yes
Q – And he said; “With a knife.” Is that right?
A – Yes
Q – And you said, “Why?” Is that right?
A – Yes
Q – And he said, “She hurt me, she cut me, I grabbed the knife off her and I hit her with it.”

42 That these versions were given by the prisoner before the record of interview is significant. They are statements made by a father to a son. Their effect is to make the father seem less reprehensible in the eyes of his son. The fact that this version was proffered to a member of the family, but not to the police to whom it had been said by the son that the prisoner should “explain to them (the police) what happened”, strongly supports the conclusion that the version given by the prisoner to the police is closer to the truth, but is not the complete truth. There was no attack by Mrs Diab. Furthermore, there is no allegation by the prisoner to his son in any of the four conversations detailed by him that the prisoner asserted that Mrs Diab had used filthy language to him, or that any language of such a kind on her part provoked him to do what he had done. I have no doubt that no such allegations were made, because no such words were said. Absence of any such allegation in the record of interview also supports this conclusion.

43 The fact that the prisoner had a knife with him when he went to Rydges Hotel on the night in question was the subject of differing explanations.

44 The Crown argued that the knife had been purchased by the prisoner with the intention of using it on Mrs Diab should she persist in refusing to leave her husband and children and go with the prisoner. Against this was the argument raised by counsel for the prisoner that the knife had been purchased by the prisoner at the request of Mrs Diab so that she could use it to defend herself in the event of an attack on her way home from work.

45 The knife had been purchased by the prisoner shortly after 3pm on 17 February 2000. Mrs Diab was not with the prisoner when the purchase was made. It was only after the knife had been purchased that he met Mrs Diab. This meeting occurred at about 5pm. They went shopping, purchased some fruit and vegetables and then went to the RSL Club. They there had some drinks and then repaired to Rydges Hotel.

46 The room had been booked by Mrs Diab, but the name in which the room was booked was changed by the prisoner to his name, and he paid for the room. They went to their hotel room, where the prisoner says they ate a mango and some red grapes and during this time he told her how he was going to return to his home and “was wishing her a happy life with her family, then we got on the bed and we made love.” I do not accept his evidence that he was cordial with Mrs Diab about her future life with her family.

47 In his record of interview, the prisoner said he bought the knife because he was going to give it to her as a present, as Mrs Diab was looking for a knife, because she said she worked at North Sydney and came back home late at night. This conversation is said to have occurred some ten days before the killing. As against this Mrs Diab’s son said that she had never expressed any fears about coming from her places of employment to home, and had never suggested to any of the family that she should carry a knife. A knife is a less than usual weapon for a woman to use.

48 There is nothing to indicate that the knife was used to peel any fruit or vegetables. The cucumber, to which reference has already been made, was uncut. The prisoner said that other cucumbers were eaten, but without being peeled. This in itself is curious in view of the nature of the cucumbers. There was no mango skin or stone found in the room. I am satisfied that the knife was not used as a fruit knife. Furthermore, I do not accept that Mrs Diab requested the prisoner to purchase the knife. These considerations point to the knife having been purchased for the purpose of possible use in the way in which it was ultimately used. As against this is the fact that the knife was purchased by the prisoner using his credit card. Furthermore, as a result of actions on the part of the prisoner, the room in which he killed Mrs Diab had the booking changed to his name. In addition, he did not attempt to flee the scene, although flight would probably have been pointless. In view of these countervailing circumstances, I am not satisfied beyond reasonable doubt that the knife was purchased for the express purpose asserted by the Crown, although I think it probable that the prisoner purchased the knife intending to use it in the way in which he did, should the need arise. As a consequence the suggestion of premeditation back to a time antecedent to the night of 17 February 2000 must be resolved adversely to the Crown.

49 The killing was quite horrible. The terror experienced by Mrs Diab in the moments before her death must have been extreme. The ferocity of the attack upon her is manifest by the nature and extent of her injuries; multiple wounds, vital organs struck, the spinal column damaged by the force with which it was struck by the knife – a force sufficient to distort the knife. Neither to the police nor in his evidence did the prisoner express remorse. Worse, I am satisfied beyond reasonable doubt that he deliberately lied and blackened even further the reputation of Mrs Diab in his endeavours to escape an adverse verdict from the jury.

50 Although the murder was not one which could be described as of the worst category, it was nevertheless a murder which falls into a high category of blameworthiness.

51 The crime was committed as one of anger, vengeance and deprivation. As I have said, I am satisfied to the relevant standard that the prisoner killed Mrs Diab because she had refused to continue with their liaison, and he dealt with her on the basis that if he could not have her, no-one else would.

52 In imposing sentence, it is appropriate that the Court make it clear that not only is murder a most serious crime, but that fatal attacks upon women of the kind and in the circumstances that gave rise to the death of Mrs Diab, will be visited with a heavy penalty. Not only is this important as a punishment for the perpetrator of the particular crime, it is also important for the community at large.

53 In determining what is an appropriate sentence, it is difficult to find an exactly comparable case. However in its submissions on sentence the Crown drew attention to a number of cases. The first was Regina v Ho Jun Heo (Allen J, 21 May 1993, unreported). That involved a male who was 29 years of age at the time of the killing. The killing arose out of a break-up of a relationship with an attractive young woman with whom the prisoner had become infatuated to the extent that he was obsessional. The victim died as a result of three stab wounds. However, the prisoner in that case expressed immediate contrition, offered a plea of guilty to manslaughter and showed his contrition by a genuine attempt at suicide. A minimum term of eleven years was imposed by the judge in that case. As can be seen from the short summary of the facts, it was a quite different case from the present.

54 In Regina v Twala (CCA, 4 November 1994, unreported), the prisoner had relied at the trial on a defence of diminished responsibility. The jury rejected that defence and returned a verdict of guilty of murder. The prisoner was aged just over 30 at the date of the murder. The trial judge imposed a sentence of penal servitude for life. On appeal, it was held that the killing was clearly influenced by the mental disturbance of the prisoner and should not have been characterised as falling within “the worst category”. Nonetheless, whilst quashing the sentence of life imprisonment, the Court imposed a sentence of penal servitude for 20 years, with a minimum term of 15 years. Again that case is different from the present. The criminality involved was mitigated by the mental disturbance of the prisoner.

55 In Regina v Nixon (CCA, 31 October 1995, unreported), the prisoner had been sentenced to penal servitude for 18 years consisting of a minimum term of 13 ½ years and an additional term of 4 ½ years. Although this sentence comprehended a number of other offences, they were relatively trivial in nature and did not involve any increase in the overall sentence imposed. In that case, the prisoner was 35 years old at the date of the killing. His victim was a female of similar age. They had lived together for about three months and then split up. The killing was by strangulation and was followed by a concealment of the killing by the prisoner burying the body of the deceased. Whether she was dead at the time of burial was not clear from the evidence. On appeal, the crime was described as “a horrible crime” and the Court stressed that “the objective gravity of what the prisoner did must not be overlooked.” Although leave to appeal was granted, the appeal against sentence was dismissed.

56 In Regina v Cheung (CCA, 11 December 1995, unreported), the prisoner had pleaded guilty to the murder of his de-facto wife by stabbing her. He was sentenced to a minimum term of imprisonment for 13 ½ years with an additional term of 4 years. The body of the deceased revealed a stab wound to her abdomen and one to her right breast. In addition, her throat had been cut, and a wound, in which a broken portion of knife was found, had been inflicted to the deceased’s right upper arm. The circumstances were that there had been difficulties in the de-facto relationship, and the deceased indicated she wished to sever her contact with the prisoner. He on the other hand, in a suicide note, proclaimed his love for the deceased. A number of matters were raised in support of the claim that the sentence was excessive. The first was the prisoner’s love for the deceased and his reason for killing her. A second was his manifest contrition. A third was described as “the Chinese cultural element”. Another was a genuine suicide attempt which highlighted the prisoner’s contrition. The prisoner’s appeal against sentence was dismissed. In the course of his judgment, Allen J referred to “what might be called a grand passion for (a woman) which completely overwhelms him”. It had been argued that where this was the case, “there is somehow a degree of respectability in giving vent to that grand passion by seeking to control the life of the woman against her will – indeed, even in an extreme case, taking her life if he believes that is what ought to be done.” In rejecting this argument, Allen J said:

“There is no respectability in that at all. It is arrogance. I do accept that having such a grand passion, if it can be so called, can diminish, for sentencing, the importance of the element of personal deterrence. But it certainly does not diminish the importance of the element of general deterrence. Indeed, the very misconception that such a grand passion affords a degree of respectability to what otherwise is abhorrent, makes it all the more important that, for the purpose of general deterrence, it be made perfectly clear that such an approach will not be tolerated in this civilised society.”

57 Although there are a number of features of Regina v Cheung (supra) which make it less serious than the instant case, the remarks of Allen J in relation to general deterrence are, in my opinion, appropriate to the present case.

58 In Regina v Leonard [1999] NSWSC 510, 28 May 1999, unreported, Sully J imposed a sentence of 16 years with a minimum term of 12 years on a prisoner who had been convicted of murder after a jury had rejected his defence of provocation. The killing arose out of the break-up of a relationship between the prisoner and the deceased following a period of some five months cohabitation. The relationship had been emotionally brittle and was subject to frequent and volatile swings. It was overshadowed by continuous excessive drinking and drug abuse on the part of the deceased, who had previously been a prostitute. The killing was effected by the prisoner shooting the deceased through the forehead at close range. The prisoner then attempted to commit suicide by shooting himself, but succeeded only in wounding himself. He called the police, and co-operated with them in their investigation. From the very moment of the shooting, he expressed remorse, which the trial judge accepted as genuine. Nonetheless, a term of imprisonment of 16 years, with a minimum term of 12 was imposed. As can be seen from the foregoing, the nature and circumstances of the killing in this case were less heinous than in the case presently under consideration.

59 The Crown next referred to Regina v Serratore [20 July 2000, unreported] in which Kirby J imposed a sentence of 20 years with a non parole period of 14 years in respect of a murder which was described as “a brutal and awful crime” in which a young woman of considerable promise was murdered because she had decided to break off her relationship with the prisoner. The deceased had been strangled, and the injuries on her body indicated that she had attempted to fight off her attacker. Her body was found by the roadside, but whether the murder had occurred there or elsewhere is not clear from the report. The prisoner denied any association with the death of the deceased, and showed no contrition. The prisoner was only young, being just over 22 years of age at the time of the killing. In imposing the sentence, Kirby J reaffirmed that imposed by Newman J following a first trial, and found, as had Newman J, that there were special circumstances as a result of which the non parole period was reduced below the statutory norm.

60 Whilst there is a number of features in Regina v Serratore that are redolent of the present case, there are also features which are different. In favour of the prisoner in the present case is that premeditation has not been found, as it was in Regina v Serratore. As against that is the age and consequent maturity of the prisoner in the present case, and the extent of the violence done to the deceased for the purpose of killing her. On balance, in my opinion, the present case is at least as serious as Regina v Serratore.

61 The final case referred to by the Crown was Regina v Sellen (NSWCCA 5 December 1991). That case was concerned with the hardship of imprisonment as a consequence of the medical condition of the prisoner. The Court indicated that proper allowance must be made for any significant physical disabilities which would increase the burden of the sentence of imprisonment imposed on a particular prisoner. The Court said:

“If it is shown that imprisonment will cause particular hardship (either because of a pre-existing physical or mental disability of the prisoner or because of the circumstances in which the prisoner must be kept for protection) this is a circumstance to be taken into account in determining the duration of the imprisonment.”

And referred to:

“…serious physical disabilities which will render the period of imprisonment more burdensome for the appellant than for the average prisoner. It is our view that the prisoner’s established poor health constitutes special circumstances within s (2) of the Sentencing Act so as to warrant the additional term we propose to impose …”

62 The Crown also produced a schedule of sentences imposed in a number of cases. Whilst the schedule included those referred to specifically above, they also included a number of other cases which in my opinion are sufficiently different from the instant case not to be of much assistance. Those specifically referred to appear to me to provide some basis for comparability of sentence.

VICTIM IMPACT STATEMENTS

63 Victim impact statements from the widower of the deceased, from her three daughters and from her son were tendered.

64 Mr Elie Diab, the widower of the deceased expressed his grief at the loss of his wife and the loss of the mother of his children. He had known her for 28 years. They had been married for 25 of those years. Together they took decisions about their future and the future of their children. True it is that there were ups and downs in the relationship but as a result of his wife’s death Mr Diab said that he had been left alone with the burden of pain and the problem of raising and supporting the children on his own. Since the loss of his wife he has experienced depression and said “my life is ripped apart”. His depression required daily medication and because of it he needed counselling.

65 Mrs Diab’s eldest daughter Rackel spoke of the immense pain and suffering that she had experienced from the loss of her mother. From her statement it is clear that Mrs Diab was a loving attentive mother who, especially during the turbulent early years of Rackel’s life in Lebanon in the late 1970’s, had been protective, caring and loving. After immigration to Australia the family quickly adopted the Australian way of life. In the house Mrs Diab was described as the peace keeper, mediator and diplomat. Her hard work helped to provide for the family. Ms Diab said that the way in which her mother died “haunts me day in and day out”. As a result of her mother’s death she finds it increasingly difficult to trust people, especially men. Many friendships she has made with members of the opposite sex have suffered as a result. This has led to her having to seek counselling.

66 The son of the deceased, Gilbert Diab, said that in the first period following his mother’s death he experienced a gamut of responses which was both extensive and extreme. His responses included the agony and torment of bereavement, and although these interrupted the normalcy of his life he returned to university and found work. However, his mother’s death caused his enthusiasms and optimism to wane and he felt sad, helpless, confused, depressed and physically fatigued. Arguments at home grew in regularity and intensity, no doubt due to the stress under which all members of the family were placed. Because the anxiety and consequent depression were taking their toll on him both mentally and physically he saw a counsellor and persisted with this for some time. Notwithstanding the counselling he was overcome by a bout of depression and as a consequence prozac was prescribed for him. Because his father was incapacitated, the loss of the income of Mrs Diab from the work which she undertook resulted in her son’s studies and work plans having to be changed so that he could assist in providing for the family. Clearly, his life has been changed by the loss of his mother. Although he has worked hard to minimise the effects of the loss, they are undoubtedly deep-seated and ongoing.

67 Another daughter, Matilda Diab is only young. Her statement is short but heart wrenching. In it she says, “You wouldn’t believe how much I miss my mummy. If I had one wish it would be to see her face again”. The loss by this child of her mother has meant that sometimes she cries herself to sleep, a readily understandable response by a child for a loving mother who has been killed.

68 Mrs Diab’s youngest child, Michelle, also expresses her sense of loss:

“I lay in bed crying because my mummy is no longer her with us … I will always remember her and pray for her.”

69 The sense of loss and sadness, the psychological consequences and other effects on the family flowing from Mrs Diab’s death are understandable. To an extent they mirror the reactions of ordinary members of the community to a death such as occurred in this case. However, because of the intimate connection between the makers of the statements and Mrs Diab the effects, of her death on them are, as is to be expected, much more profound.

70 I have considered the victim impact statements but conformably with authority (Regina v Previtera (1997) A Crim R 76; Bollen v Regina (1998-99) A Crim R 510) have not made use of them either so as to increase the penalty which should otherwise be imposed, as confirmation that the conclusion to which I have come is the appropriate one or at all.

PROBATION AND PAROLE SERVICE REPORT

71 A report dated 18 September 2001 from the Probation and Parole Service of the Department of Corrective Services reveals that although the prisoner appears, for a substantial period of his life, to have been a man with good ethical values who taught his children the difference between right and wrong and was respected in the community, he underwent a substantial change. This change is mirrored in the evidence. He lost his business. He sold his interest in his house. He began drinking and gambling and as a consequence wasted what had previously been his substance.

72 Despite the offence of which he has been convicted his family is said to remain supportive of him and his son in particular still respects him. The report reveals that the prisoner has suffered from diabetes for approximately 17 years and from high blood pressure and ulcer problems for approximately 12 years. All of these conditions are managed by daily medication. The history give to the reporting officer is one in which the prisoner undoubtedly puts the most favourable light on his behaviour. For example, he alleges that Mrs Diab deliberately stabbed him before he stabbed her and that it was not his intention to hurt her. I have rejected these claims, as the verdict of the jury must have rejected them. He further seeks to place the blame for the events on Mrs Diab by claiming that it was he who sought to break off the relationship and that as a consequence of her refusal to accept his decision in this regard she attacked him. I have also rejected this claim in the findings of fact made for the purpose of determining the sentence to be imposed on the prisoner. The report continues “the offender did not initially accept full responsibility for his offending behaviour but gradually came to acknowledge his role to some degree” (italics added). I do not accept that even today the prisoner has any genuine sense of contrition and it is my firm view that he does not accept the enormity of the crime that he has committed, or his responsibility for such crime.

Arguments advanced on Behalf of the Prisoner

73 Counsel for the accused stressed that the prisoner, who is now aged 49, suffered from medical conditions that would make imprisonment more onerous for him than for the ordinary prisoner. Whilst it was recognised that there would be no need for any special protection for the prisoner it was argued that the medical conditions from which the prisoner suffered constituted special circumstances. Furthermore, it was said that although the sentence to be imposed could not be short, the age and medical condition of the prisoner should be reflected in the minimum term, ie the non parole period.

74 The medical condition of a particular prisoner may result in imprisonment being more onerous for him than for the ordinary prisoner. Such a situation can amount to special circumstances. However, there was no medical or other evidence called to suggest that treatment for the disorders diagnosed in the prisoner would be unavailable in prison. What treatment is required for his diabetes is unclear. The pre-sentence report reveals that his diabetes and his other medical conditions are managed by daily medication. The nature of that medication is not stated. There is no evidence to suggest that the daily medication which he has been taking for many years will be denied him in prison. However, both diabetes and degenerative heart disorders are progressive in their natures and are therefore likely in the future to require more or different medical attention from that which the prisoner has had over the last 12 to 17 years. In these circumstances I am of opinion that his medical condition combined with his age constitutes special circumstances.

75 The second matter relied upon by counsel for the prisoner was that there should not be a finding that the prisoner intended to kill Mrs Diab. In support of this submission reference was made to Regina v Bell (1985) 2 NSWLR 466 at 485. In addition it was argued that although the jury had rejected the defence of provocation I should be satisfied that there was some provocation which should be taken into account as a mitigating factor. I reject this submission. As I have already indicated I am satisfied beyond reasonable doubt that the prisoner killed Mrs Diab, not because he was attacked or because he was provoked by any insulting words or gestures on her part, but because he was not prepared to let any other man have her if he could not have her. The nature and circumstances of the killing are such as to call for a firm message of general deterrence being sent to the community that behaviour of the kind engaged in by the prisoner is unacceptable in our society.

76 The third matter raised in mitigation was that the killing was not premeditated. I have already dealt with the facts underlying this submission. Although I am not satisfied beyond reasonable doubt that the killing was premeditated in the sense that preparations were made for it during the course of the afternoon, I am certainly not satisfied on the balance of probabilities that it was not premeditated. Indeed, as I have already determined I think it is probable that it was. In these circumstances premeditation can not be and is not used adversely to the prisoner, but on the other hand lack of premeditation is not to be used in his favour.

77 It was next submitted that by virtue of his age alone, namely 49, imprisonment may be more onerous for the prisoner. Although the age of the prisoner is a matter to which the court is to have regard I do not think that this prisoner can properly be described as elderly. Furthermore, there is no evidence to suggest that imprisonment for a man aged 49 is any more adverse than to a man 10 years younger than that. There is certainly nothing in the evidence to suggest that imprisonment would have a grossly adverse effect on the prisoner or his health. As a consequence, although I have regard to the age of the prisoner, I do not consider it to be a factor which should be used to reduce an otherwise appropriate sentence.

78 Counsel for the prisoner then referred to the various cases to which reference was made by the Crown and to which I have averted above. He submitted that if the Court were to find that the prisoner stabbed Mrs Diab with the intention of killing her then the various cases to which reference has been made would indicate that the killing in the instant case should be treated as less serious a crime than those referred to in such cases.

79 I have already dealt with the cases in some detail. None of them is the same as the present case. In some of them eg. Regina v Nixon, Regina v Cheung the prisoner pleaded guilty. As a consequence a not insignificant discount on the sentence was appropriate. In some, sincere remorse and contrition were expressed; eg. Regina v Ho Jun Heo, Regina v Leonard. In one, Regina v Twala, the fact that the killing was not in the worst category and was influenced by a mental disturbance of the prisoner resulted in a life sentence being reduced to imprisonment for twenty years on appeal. Nonetheless, it was submitted that the sentence to be imposed upon the prisoner should be less than the sentences imposed on the prisoners in the cases referred to by the Crown. As I have already indicated those cases are not directly applicable but are helpful to indicate that the crime of the prisoner in the instant case is a very serious one, to contrast his lack of contrition with the contrition that was apparent in a number of those other cases and to provide some basis for comparability of sentence.

80 An examination of the facts, the decided cases and the other relevant factors adverted to above, indicates that a term of imprisonment of 20 years would be appropriate in the instant case.

81 The final submission made on behalf of the prisoner was that he was unlikely to re-offend and that as a consequence the statutory relationship between the sentence imposed and the non parole period should be altered in favour of the prisoner.

82 As I have already said the murder committed by the prisoner falls within the category of very serious, but not within the worst category of such crimes. Moreover, I am satisfied that it is unlikely that the prisoner will commit a further murder after his release. Furthermore, the prisoner, as part of his rehabilitation, will have an opportunity to undertake courses in anger management and other like courses which should help him to control his actions in the future. Accordingly, I think that there is some substance in this final submission and combined with the medical condition of the prisoner suggests that a departure from the statutory ratio provided between the sentence and the non-parole period would be appropriate.

83 Although not specifically averted to by counsel for the prisoner in his address the prisoner is entitled to have the Court consider his antecedents. He has none that are adverse. However, in a case such as the present that should not in my opinion result in the imposition of lesser penalty.

SUMMARY

84 The actions of the prisoner in killing Mrs Diab were very serious. A life has been taken. The prisoner has not demonstrated before the Court any contrition or remorse. Notwithstanding the pre-sentence report, I am satisfied that the prisoner is not remorseful. Although his age combined with his medical condition constitutes special circumstances, the nature of the crime and the circumstances in which it was committed call for a sentence which is substantial, constitutes a significant retribution and makes it clear to others that actions of the kind engaged in by the prisoner are unacceptable in our community and will give rise to heavy penalties if engaged in.

85 In the instant case I am of opinion that the appropriate sentence for the prisoner is imprisonment for 20 years but that in view of the special circumstances the non-parole period should be reduced to 13 1/2 years. The sentence should commence on the date on which the prisoner was taken into custody namely 18 February 2000.

SENTENCE

86 Ali Khalouf, you have been found guilty be a jury of your peers of having murdered Rebecca Diab at Bass Hill on or about 18 February 2000. I sentence you to imprisonment for 20 years in respect of that crime, such sentence to commence on 18 February 2000 and to expire on 17 February 2020.

87 In view of the special circumstances that exist in this case I fix the non-parole period to conclude on 17 August 2013. You will become eligible for parole on 18 August 2013.

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Last Modified: 02/18/2003