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Supreme Court 17 November 2017

R v Terkmani (No 2)

[2017] NSWSC 1567

Sexual offencesHomicide
CRIME SENTENCE MURDER SENTENCE AGGRAVATED SEXUAL ASSAULT NEED TO AVOID DOUBLE PUNISHMENT

Citation: R v Terkmani (No 2) [2017] NSWSC 1567
Court: Supreme Court of NSW
Date: 17 November 2017
Judge(s): McCallum J

Background

The offender, a 21-year-old man, was found guilty by a jury of the murder and aggravated sexual assault of a 16-year-old victim known to him from the same suburb in south-western Sydney. The offences were committed in a vacant Housing Commission house the offender had been using as his own, while he was on strict conditional bail for serious drug offences. The victim, a diligent young labourer who gave most of his income to his family, was last heard speaking to family members by phone in the hours before his death.

Because the offender maintained his innocence and offered no explanation for the offences, the precise circumstances of what occurred inside the vacant house had to be determined by inference. McCallum J drew on the victim's injuries, the state of the crime scene, and evidence from the trial to establish the factual basis for sentencing.

The judgment addressed several contested factual issues, including whether the offender had supplied the victim with ecstasy found in his post-mortem blood samples. The court was satisfied that the victim consumed ecstasy while with the offender, but was not satisfied beyond reasonable doubt that the offender had supplied it.

  • Whether the murder was so grave as to warrant the maximum penalty of life imprisonment under s 19A of the Crimes Act 1900 (NSW)
  • Whether the aggravated sexual assault warranted the maximum penalty of 20 years imprisonment under s 61J(1) of the Crimes Act 1900 (NSW)
  • How to treat the sexual assault for sentencing purposes where the acts constituting sexual intercourse also contributed to causing the victim's death, so as to avoid double punishment
  • What weight to give the offender's youth in determining whether to impose a life sentence or exercise the discretion to impose a determinate term
  • Whether the offence was committed while on bail, and the treatment of other statutory aggravating factors

Decision

McCallum J identified the murder as one of extreme gravity. The victim was a child, the offending involved serious violence and sexual assault, and the offender was on conditional bail at the time. The court treated the fact of offending while on bail as a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

On the question of maximum penalties, the court applied the test drawn from R v Harris and confirmed in The Queen v Kilic: the maximum is reserved for offences so grave that nothing less will suffice, not merely because the offence is serious. The court considered the authorities on life imprisonment, including R v Miles and R v Merritt, and weighed the offender's youth as a mitigating consideration relevant to the exercise of discretion over whether to impose a determinate rather than a life sentence.

Regarding the aggravated sexual assault charge, the court was alert to the risk of double punishment. Because the acts constituting sexual intercourse were also part of what contributed to the victim's death, the court was required to take care that the same conduct was not punished twice across the two offences. This is a recognised sentencing principle that requires the overall sentence to be constructed so that the total punishment is proportionate and not excessive by reason of overlap.

The court proceeded to impose sentences having regard to the standard non-parole periods (25 years for the murder given the victim was under 18, and 10 years for the aggravated sexual assault), the overall gravity of the offending, the statutory aggravating factors, the offender's youth, and the need to avoid double counting. The judgment also noted the potential operation of the Crimes (High Risk Offenders) Act 2006 (NSW) as a relevant future consideration.

Orders Made

• Conviction for murder of Mahmoud Hrouk
• Conviction for aggravated sexual assault against Mahmoud Hrouk
• Aggregate sentence of imprisonment with non-parole period of 33 years commencing 21 August 2017 and concluding 20 August 2050
• Balance of term of 12 years concluding 20 August 2062
• First date of eligibility for release to parole: 20 August 2050
• Request to offender's legal representatives to advise of the Crimes (High Risk Offenders) Act 2006 and its application to these offences

Key Takeaways

  • The Supreme Court confirmed that the maximum penalty for murder or aggravated sexual assault is reserved for cases where the offending is so grave that no lesser sentence would be appropriate, consistent with The Queen v Kilic and the established Harris test.
  • Where the acts constituting a sexual assault also contributed causally to the victim's death, sentencing for both offences requires careful structuring to avoid punishing the same conduct twice across separate counts.
  • An offender's youth is a recognised mitigating factor relevant to the exercise of the court's discretion whether to impose a determinate sentence rather than life imprisonment, even in cases of extreme gravity.
  • Offending while on conditional bail is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was treated as such here, where the offences were committed in direct breach of bail conditions.
  • Where an offender maintains innocence and offers no account of the offending, factual findings for sentencing purposes must be established by inference from physical evidence and trial testimony, and only to the requisite standard of beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 61J(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), (f), (j), 28(3), 28(4), 54B, 61
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
- R v Miles [2002] NSWCCA 276
- R v Stanford, Vincent [2016] NSWSC 1434
- R v SLD [2002] NSWSC 758
- R v Valera [2000] NSWSC 1220
- SW v R [2013] NSWCCA 103
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14