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Supreme Court 8 May 2015

R v Abdallah

[2015] NSWSC 531

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCING DEFENCE AGGRAVATED BY USE OF KNIFE

Citation: R v Abdallah [2015] NSWSC 531
Court: Supreme Court of New South Wales
Date: 8 May 2015
Judge(s): Adamson J

Background

The offender, a senior project manager in her early thirties, lived in a Brighton-Le-Sands townhouse with the deceased, a younger distant relative aged 21. The two women had a close but volatile relationship, and both used cocaine. On 9 February 2013, following a day of escalating conflict that included a street altercation, the offender fatally stabbed the deceased with a kitchen knife inside the townhouse.

The entire sequence of events inside the townhouse was captured by CCTV cameras the offender herself had installed. The footage provided the principal factual basis for the sentencing proceedings, though it recorded no sound.

Following a jury trial, the offender was convicted on 23 February 2015 of manslaughter by excessive self-defence. The matter came before Adamson J for sentencing.

  • What factual findings could be made adversely to the offender at sentence, and to what standard of proof?
  • What weight, if any, should be given to a claimed pre-existing anxiety disorder as a mitigating mental condition?
  • Whether the use of a knife constituted an aggravating factor under the sentencing legislation.
  • What sentence was appropriate for manslaughter by excessive self-defence, accounting for all aggravating and mitigating factors?
  • Whether special circumstances existed justifying a departure from the statutory ratio between head sentence and non-parole period.

Decision

Factual findings at sentence: Adamson J applied the standard from The Queen v Olbrich (1999) 199 CLR 270: facts adverse to the offender must be established beyond reasonable doubt, while facts relied upon in the offender's favour need only be proved on the balance of probabilities. The court made detailed factual findings based substantially on the CCTV footage, which captured the lead-up to and immediate aftermath of the stabbing.

The anxiety disorder claim: The offender sought to rely on a diagnosed pre-existing anxiety disorder as a mitigating mental condition. Adamson J rejected this submission. The diagnosis rested heavily on the offender's own accounts given to treating practitioners, and the court found her evidence to be unreliable. Because the psychiatric and psychological histories were founded on those unreliable self-reports, the court was not satisfied that any qualifying mental condition had been established on the balance of probabilities.

Aggravating factors: The use of a kitchen knife was treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as the offence involved the use of a weapon. The court also took into account the harm caused to the deceased's immediate family as harm to the broader community, in accordance with s 28(4) of the same Act.

Sentence: Adamson J imposed a total term of 11 years' imprisonment, with a non-parole period of 8 years and 3 months, commencing 8 December 2014. The court was not satisfied that special circumstances existed to justify departing from the statutory ratio for the parole period, noting that the standard parole period would be sufficient for supervision and rehabilitation within the community.

Orders Made

  • The offender was convicted of the manslaughter of Suzie Sarkis.
  • Sentenced to 11 years' imprisonment, commencing 8 December 2014.
  • Non-parole period of 8 years and 3 months.
  • Earliest eligible parole date: 8 March 2023.

Key Takeaways

  • At sentence for manslaughter, facts adverse to an offender must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities, following The Queen v Olbrich (1999) 199 CLR 270.
  • A claimed psychiatric condition that rests substantially on an offender's own unreliable self-reporting will not be accepted as a mitigating mental condition, even where a formal diagnosis has been recorded by treating practitioners.
  • The use of a knife in committing the offence constituted an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the harmful impact of a killing on the deceased's immediate family is a legitimate consideration in determining the appropriate punishment, framed as harm to the broader community.
  • No special circumstances were found to justify departing from the statutory non-parole ratio, the court concluding that a standard parole period would be adequate to supervise the offender's rehabilitation following her history of substance abuse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(c), 21A(2)(c), 21A(2)(j), 28(4), 44

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v Isaacs (1997) 41 NSWLR 374
- R v Silva [2015] NSWSC 148
- The Queen v Lavender [2005] HCA 37; 222 CLR 67
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270