Citation: Regina v Khouzame [1999] NSWSC 979
Court: Supreme Court of New South Wales
Date: 24 September 1999
Judge(s): Michael Grove J
Background
In the late afternoon of 9 November 1997, three Turkish-Australian teenage boys arrived in a suburban Guildford street and engaged in casual conversation with local girls. A ten-year-old neighbour took exception and entered the prisoner's premises, drawing the prisoner's attention to the group outside. Verbal exchanges followed between the prisoner, then on an upper balcony, and the boys below.
The prisoner descended, removed his shirt, and armed himself with a substantial piece of wood that had been used as a garden stake. He struck one of the boys, Caglar Vurangunes, a forceful blow to the head. That blow brought the victim to his knees and set in train a fatal outcome. The prisoner's brother joined in an assault on another of the boys, Gokhan Kumru, who sustained facial and body injuries.
The prisoner was charged with murder and with assault occasioning actual bodily harm. The jury returned verdicts of not guilty of murder but guilty of manslaughter, and guilty of the assault charge.
Legal Issues
- What facts, consistent with the jury's verdicts, should be found for the purpose of sentencing?
- Whether the killing resulted from an intentional unlawful and dangerous act or arose in circumstances of self-defence, as the prisoner claimed
- Where on the spectrum of culpability the prisoner's manslaughter fell, and what sentence was appropriate
- Whether special circumstances existed to justify extending the additional term (parole period) beyond the one-third limit prescribed by the Sentencing Act 1989
- Whether a sentence of periodic detention was appropriate in the circumstances
Decision
Grove J rejected the prisoner's account that he had acted in self-defence, waving the wood to protect himself and that the victim walked into its arc. The court was satisfied that the prisoner formed a clear intention to drive the visiting youths from the street, armed himself deliberately, and delivered what was properly described as a "king hit." No provocation by the boys had been established, and nothing any of the girls had said or done warranted the confrontation.
For sentencing purposes, the court accepted that only one blow to Vurangunes was proved beyond reasonable doubt. However, the court emphasised that this was a full-bodied blow with a substantial weapon, not a moderate contact that happened to produce an unexpectedly grave result. The victim's post-mortem-identified vulnerability to head injury did not alter that characterisation.
Grove J assessed the manslaughter as falling neither at the least culpable nor the most culpable end of the wide spectrum the offence encompasses. The court declined to impose periodic detention, which had been submitted by defence counsel as appropriate.
The court found special circumstances justifying an additional term beyond the one-third limit. The prisoner was young, being committed to custody for the first time, and an extended period of supervised parole was considered desirable to assist his reintegration with the support of an independent officer from the Probation and Parole Service.
Orders Made
- For manslaughter: five years penal servitude, comprising a minimum term of three years commencing 3 July 1999 and expiring 2 July 2002, plus an additional term of two years commencing 3 July 2002
- For assault occasioning actual bodily harm: a fixed term of three months penal servitude commencing 3 July 1999 and expiring 2 October 1999, to be served concurrently with part of the minimum term for manslaughter
- Eligible for parole on 2 July 2002
Key Takeaways
- A manslaughter conviction arising from an unlawful and dangerous act does not require proof of intent to cause grievous bodily harm; the jury's rejection of murder was consistent with the court proceeding on the basis of a deliberate armed battery.
- Where a victim has particular physical vulnerability, that factor does not reduce the gravity of a serious, forceful blow with a substantial weapon; the court distinguished such a case from one involving an unexpectedly grave consequence flowing from moderate force.
- Special circumstances under the Sentencing Act 1989 were established by the combination of the prisoner's youth and the fact that this was his first period of custody, justifying a parole period exceeding the standard one-third ratio of minimum term.
- A finding that only one blow was proved beyond reasonable doubt did not minimise culpability where that single blow was delivered with full force using an improvised weapon.
- The Supreme Court rejected periodic detention as an appropriate sentencing option for a manslaughter of this character, notwithstanding the prisoner's lack of prior convictions and positive pre-sentence assessments.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW)
- Crimes Act (NSW), s 24 (maximum penalty for manslaughter)
- Criminal Procedure Act (NSW), Pt 6A (victim impact statements)
Cases cited: None referenced in the provided text.