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Supreme Court 29 January 2002

Regina v Khalouf

[2002] NSWSC 1271

Assault & violenceHomicide
CRIMINAL LAW MURDER KILLING OF FEMALE BY 49 YEAR OLD MALE STABBING MULTIPLE WOUNDS TO CHEST AREA INFATUATION

Citation: Regina v Khalouf [2002] NSWSC 1271
Court: Supreme Court of New South Wales
Date: 29 January 2002
Judge(s): O'Keefe J

Background

The prisoner, a 49-year-old man, stood trial for the murder of a woman with whom he had been involved in a liaison. The killing occurred late at night on 17 February 2000 in a hotel room at Bass Hill, Sydney. A neighbour in the adjoining room heard prolonged and loud argument before the woman's voice ceased around 11.45 pm.

The victim died from multiple stab wounds to the chest area. The prisoner remained in the room after her death and was subsequently taken into custody on 18 February 2000. A jury returned a verdict of guilty on 10 August 2001 after a trial that had been delayed by procedural and legal representation matters.

The sentencing hearing took place on 15 November 2001. The Crown tendered a pre-sentence report and several victim impact statements. Defence counsel called no evidence from the prisoner or on his behalf.

  • What facts relevant to sentencing were established to the requisite standard of proof?
  • How serious was the murder within the spectrum of culpability for that offence?
  • What weight should be given to the absence of remorse, lack of premeditation, the prisoner's age, his medical condition, and his clean antecedent history?
  • Were there special circumstances justifying a departure from the standard statutory ratio between the head sentence and the non-parole period?
  • What role should general deterrence and victim impact play in fixing the sentence?

Decision

O'Keefe J applied the standard of proof framework confirmed in Regina v Storey (1997): facts adverse to the prisoner must be established beyond reasonable doubt, while facts in his favour need only be proved on the balance of probabilities. The court found that the killing arose from anger and resentment connected to an infatuation with the deceased, but made no finding of premeditation.

Despite the absence of premeditation, O'Keefe J placed the murder in the high category of seriousness. The prisoner had shown no remorse before the court, and although the pre-sentence report suggested otherwise, the sentencing judge was not satisfied that genuine contrition existed. The clean antecedent history was noted but was not treated as warranting a reduction in penalty given the gravity of the offence.

The prisoner's age (49 at the time of offending) was not treated as a mitigating factor. However, his age combined with a medical condition was found to constitute special circumstances, justifying a reduction in the non-parole period below the standard statutory ratio. The court also accepted that the prisoner was unlikely to reoffend after release and could benefit from anger management programmes while in custody.

General deterrence was identified as a significant sentencing consideration. The court emphasised that the community required a clear signal that conduct of this kind attracts substantial penalties.

Orders Made

  • Imprisonment for 20 years, commencing 18 February 2000 and expiring 17 February 2020
  • Special circumstances found
  • Non-parole period fixed to conclude on 17 August 2013, with eligibility for parole from 18 August 2013

Key Takeaways

  • A murder arising from anger and resentment in an intimate context, without premeditation but with multiple stab wounds, can still fall within the high range of culpability for that offence.
  • The Supreme Court confirmed that age alone does not automatically reduce a sentence; in this case, age was only relevant when considered alongside the prisoner's medical condition as a basis for special circumstances.
  • Where a sentencing court makes its own assessment of remorse, it is not bound by conclusions in a pre-sentence report; O'Keefe J found the prisoner was not genuinely remorseful despite the report suggesting otherwise.
  • Special circumstances can justify a reduced non-parole period relative to the head sentence, but such a finding does not reduce the overall sentence where the seriousness of the offence demands a heavy penalty.
  • Under the Storey standard, confirmed as applicable in New South Wales by Regina v Isaacs, disputed facts adverse to a prisoner must be established beyond reasonable doubt at sentencing, while facts favourable to the prisoner need only satisfy the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 23, 24

Cases
- 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
- Regina v Serratore [2000] NSWSC 696
- 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