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Supreme Court 29 January 2002

Regina v Khalouf

[2002] NSWSC 19

Homicide
MURDER STABBING MULTIPLE WOUNDS VERY SERIOUS CASE HIGH CATEGORY OF BLAMEWORTHINESS NOT WORST CASE CATEGORY

Citation: Regina v Khalouf [2002] NSWSC 19
Court: Supreme Court of New South Wales
Date: 29 January 2002
Judge(s): O'Keefe J

Background

The prisoner was tried and convicted by a jury of the murder of a woman with whom he had been engaged in an illicit relationship, at a hotel in Bass Hill, New South Wales, on or about 18 February 2000. The victim was stabbed multiple times. Evidence from a neighbouring guest established that a prolonged and loud argument had occurred in the room before the victim's voice fell silent.

The relationship had been characterised by infatuation on the part of the prisoner. The Crown's case was that the victim had sought to end the liaison, and that the prisoner had killed her out of anger, resentment, vengeance, and a sense of deprivation arising from that rejection.

At the sentencing hearing, the defence called no evidence. The prisoner had not given evidence at trial, and the pre-sentence report notwithstanding, the court found itself satisfied that the prisoner had demonstrated no genuine contrition or remorse.

  • What was the appropriate head sentence and non-parole period for a murder conviction involving multiple stab wounds and no remorse?
  • Did "special circumstances" exist within the meaning of the sentencing legislation, justifying a departure from the standard statutory ratio between the head sentence and the non-parole period?
  • What weight should be given to the prisoner's age, progressive medical condition, and absence of prior criminal history?
  • How should the sentencing court treat the absence of remorse as an aggravating factor?
  • What was the applicable standard of proof for disputed facts at sentence?

Decision

O'Keefe J confirmed that disputed facts adverse to a prisoner at sentencing must be established beyond reasonable doubt, while facts favourable to the prisoner need only be established on the balance of probabilities. This followed the Victorian Court of Criminal Appeal's analysis in Regina v Storey, which New South Wales law had adopted. His Honour applied this standard throughout the sentencing exercise.

The court characterised the murder as falling within a "very serious" category of culpability, but expressly declined to place it in the worst category of such crimes. The motivating factors, including anger, resentment, vengeance, and a sense of deprivation following the breakdown of an illicit relationship, all pointed to a high level of blameworthiness. The absence of any demonstrated remorse or contrition before the court was treated as a significant feature warranting a substantial sentence. General deterrence was also identified as an important sentencing consideration.

The court accepted that special circumstances existed, arising from the prisoner's age and a progressive medical condition. These factors justified reducing the non-parole period below the standard statutory proportion. His Honour also noted that the prisoner was unlikely to reoffend and that courses in anger management available during imprisonment could assist with rehabilitation.

The prisoner's clean criminal history was acknowledged but, in the court's assessment, did not warrant any reduction in penalty given the gravity of the offending.

Orders Made

  • The prisoner was sentenced to imprisonment for 20 years, commencing 18 February 2000 and expiring 17 February 2020.
  • The non-parole period was fixed to expire on 17 August 2013, with the prisoner becoming eligible for parole on 18 August 2013.

Key Takeaways

  • The Supreme Court placed this murder in a "very serious" category of blameworthiness, but expressly declined to classify it as a worst-case murder, reflecting the need for careful calibration within the spectrum of homicide offending.
  • At sentencing, facts adverse to an offender must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities, consistent with Regina v Storey and affirmed in New South Wales by Regina v Isaacs.
  • An absence of genuine remorse or contrition is a meaningful sentencing consideration, and the court was willing to look beyond the content of a pre-sentence report in forming its own assessment of the prisoner's state of mind.
  • Special circumstances within the sentencing legislation were established here by the combination of the prisoner's age and a progressive medical condition, justifying a reduced non-parole period relative to the head sentence.
  • A clean prior criminal record, while relevant to antecedents, did not operate to reduce the sentence in a case of this gravity.

Legislation and Cases Referenced

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

Cases
- Regina v Previtera (1997) A Crim R 76
- 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
- Bollen v Regina (1998-99) A Crim R 510
- Regina v Ho Jun Heo (Allen J, 21 May 1993, unreported)
- Regina v Twala (CCA, 4 November 1994, unreported)
- Regina v Nixon (CCA, 31 October 1995, unreported)
- Regina v Cheung (CCA, 11 December 1995)
- Regina v Leonard [1999] NSWSC 510
- Regina v Bell (1985) 2 NSWLR 466
- Regina v Serratore (20 July 2000, unreported)
- Regina v Sellen (NSWCCA, 5 December 1991, unreported)