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31
Supreme Court 5 December 2014

R v Halloun

[2014] NSWSC 1705

Homicide
CRIME SENTENCE MURDER OFFENDER FOUND GUILTY AFTER A TRIAL NO INTENTION TO KILL NO REMORSE

Citation: R v Halloun [2014] NSWSC 1705
Court: Supreme Court of New South Wales
Date: 5 December 2014
Judge(s): McCallum J

Background

The offender, a concreting contractor, had been engaged by a medical practitioner to concrete a driveway at the family home in Sydney. A dispute arose over payment during the course of the works, and the offender was under significant financial pressure at the time. The offender knew, from prior dealings, that large sums of cash were kept at the house.

On 15 June 2012, the offender attended the property ostensibly to continue the works. After the doctor and his daughter had left for work, the offender gained entry to the home by feigning illness and asking to use the toilet. He was alone in the house with the doctor's wife, Mrs Shahnaz Qidwai. He attacked and killed her.

The offender was found guilty by a jury of murder. McCallum J then proceeded to determine the appropriate sentence, including resolving disputed facts relevant to the offender's culpability and personal circumstances.

  • What was the appropriate factual basis for sentencing, including the offender's intent at the time of the killing?
  • What weight should be given to the absence of remorse and the offender's conduct in attempting to deflect blame?
  • How should the vulnerability of the deceased and the circumstances of the attack be reflected in the sentence?
  • Whether the offender's experience of extra-curial punishment (threats and assaults in custody, and the resulting need for protective custody) constituted a special circumstance warranting a departure from the standard ratio between the non-parole period and balance of term?

Decision

McCallum J found that while the offender had the requisite intent for murder at the time of the killing, the evidence did not establish an intention to kill. The attack occurred in the context of what appeared to be a robbery gone wrong. The offender believed large sums of cash were kept at the house and had created a pretext to gain entry.

Her Honour identified several factors significantly aggravating the offence. The deceased was a vulnerable woman attacked in her own home. The offender had abused her trust and that of her family, exploiting a longstanding connection between the families. The offender showed no remorse and, throughout the proceedings, sought to deflect responsibility.

On the question of extra-curial punishment, the court accepted evidence that the offender had been subjected to serious threats and assaults in custody, and that Corrective Services had accepted his fears as rational, placing him in protective custody. Her Honour held, consistent with the Court of Criminal Appeal's guidance in RWB v R, that protective custody is not automatically a mitigating factor. However, on the particular facts, the court was persuaded that the offender's constant and oppressive fear made his imprisonment more onerous than for many in the general population.

This did not reduce the overall length of the sentence, but the court accepted it as a special circumstance justifying a slight adjustment to the statutory ratio between the non-parole period and the balance of term. The court imposed a total sentence of 24 years, with a non-parole period of 17 years, reflecting a somewhat longer balance of term than the standard ratio would produce.

Orders Made

  • The offender was convicted of the murder of Shahnaz Qidwai.
  • Sentenced to imprisonment with a non-parole period of 17 years, commencing 15 August 2012 and concluding 14 August 2029.
  • Balance of term of 7 years, concluding 14 August 2036.
  • Eligible for release on parole on 14 August 2029.

Key Takeaways

  • A finding of murder does not require proof of an intention to kill; the Supreme Court sentenced on the basis that the offender had the requisite intent for murder without a specific intention to kill, which remained relevant to the overall assessment of culpability.
  • Attacking a vulnerable person in their own home, after abusing a position of trust to gain entry, constitutes a serious aggravating feature in the sentencing calculus for murder.
  • Under the principles affirmed in RWB v R, the fact that a prisoner serves a sentence in protective custody is not automatically mitigating, but cogent evidence of constant and oppressive fear arising from extra-curial punishment can constitute a special circumstance warranting adjustment of the non-parole period to balance of term ratio.
  • Where special circumstances are found, the adjustment affects the ratio between the non-parole period and balance of term rather than the overall head sentence, consistent with s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Absence of remorse and active attempts to deflect blame throughout proceedings are factors that weigh against the offender at sentence, even where no finding of specific intent to kill is made.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Montero v R [2013] NSWCCA 214
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Hines (No 3) [2014] NSWSC 1273
- RWB v R; R v RWB [2010] NSWCCA 147; (2010) 202 A Crim R 209