Regina v Khouzame [1999] NSWSC 979

New South Wales Supreme Court CITATION : Regina v Khouzame [1999] NSWSC 979 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 70021/98 HEARING DATE(S) : 02/08/99 - 12/08/99 JUDGMENT DATE : 24 September 1999

PARTIES : Regina v Adonis Khouzame JUDGMENT OF : Michael Grove J at 1

COUNSEL : D. Frearson (Crown) P. Young (Prisoner) SOLICITORS : DPP (Crown) Brenda Duchen (Prisoner) CATCHWORDS : Criminal Law - Sentence - Manslaughter and Assault Occasioning Actual Bodily Harm ACTS CITED : Sentencing Act 1989 DECISION : Refer to pars 28, 29, 30

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

MICHAEL GROVE J

Friday 24 September 1999

70021/98 - REGINA v ADONIS KHOUZAME

SENTENCE

1 HIS HONOUR : On 11 August 1999 Adonis (Eddie) Khouzame was found not guilty of murder but guilty of manslaughter of Caglar Vurangunes and guilty of assaulting Gokhan Kumru occasioning him actual bodily harm. 2 It is necessary to find facts consistent with those verdicts of the jury for the purpose of sentence. I am aware of course that the evidence contained a variety of versions and details of events and the following refers to matters about which I am satisfied to the requisite criminal standard of proof. 3 In the late afternoon of Sunday 9 November 1997 three teenaged boys, the victims whose names I have mentioned and Erdinc (Eddie) Tustas arrived in North Street Guildford in a motor car owned by Gokhan Kumru's mother. The boys were of Turkish ethnicity. At least one of them was acquainted with Sarah Dawson, a girl who lived in a house in that street. The exact order of comings and goings is confused but some social exchange took place between the boys and Sarah Dawson as well as with other girls who were passing in the street, Ruby Raad and Lisa McCoy. At some stage the prisoner's sister Ashty Khouzame was in the vicinity. I should state that I do not accept Ashty Khouzame as a witness of truth. Whilst the motive of the boys for their presence was undoubtedly flirtatious, I find that nothing was said or done by any of them towards any girl which could reasonably be regarded as offensive or provocative. I note that to a large extent Eddie Tustas remained aloof. 4 Ruby Raad resided in the house next door to the prisoner and his family. Although just under sixteen years of age, she was engaged to be married. Her ten year old brother Mohammed took some objection to his sister's conversing with the visiting males. He threatened to tell her fiance. Truthfully he could tell that person no more than that his sister was part of a group of boys and girls chatting with each other in a public street in daylight hours. However, the boy Mohammed entered upon the prisoner's premises and began calling out loudly and his behaviour attracted the prisoner to the front balcony of the upper storey of the house. 5 Verbal abuse came to be exchanged between the prisoner on the balcony and the visitors who remained outside of the premises in the street. The prisoner testified that in part of the exchange he offered the mild reproof "can you leave my sister and cousin alone and leave". I do not accept that the prisoner made such a genteel request but even in that version of his there is implication that his state of mind included a desire for the visitors to egress from the area. I prefer as more credible the recounting of Gokhan Kumru who testified: "He looked down towards me and he said, 'Get the fuck out of here', this and that, and I answered back to him and I said, 'What's your problem mate?' and he said, 'I'll show you my problem', and he come down." 6 The prisoner did not claim that there had been any preceding complaint from any one of the girls nor that he had observed any one of the visiting boys misconduct himself nor had he seen them do anything which would cause apprehension that they were about to misconduct themselves. I am satisfied that no one of the girls had told him that any attention being paid to her was unwelcome. Ruby Raad was not the prisoner's cousin nor does the evidence suggest that her fiance was a member of his family. The prisoner and Ruby Raad shared a Lebanese ethnicity. 7 I am satisfied that the prisoner perceived that the boys were not going to depart immediately and that he formed an intention to drive them away. He descended to the front door where he stripped off his upper garment. This was not a peacemaking gesture. The prisoner armed himself with a piece of wood which apparently had been used as a garden stake. I am satisfied that the items admitted into evidence are the component parts of that piece of wood. The label of garden stake should not give any false impression about the substantial nature of the implement which the prisoner chose to wield. 8 With this implement the prisoner struck Caglar Vurangunes a blow to the head, the force of which brought him to his knees and caused the damage which set in train ultimate fatality. 9 A number of the prisoner's male relatives emerged from the house in close order behind him. His brother Joseph attacked Gokhan Kumru and the prisoner (and possibly others) joined in. That victim sustained injuries including a bloodied and swollen face and bruising on the arm and back. The victims made their way to the car which was driven away. Joseph Khouzame had by then acquired the wood and struck the departing car a blow which broke it into pieces. The foregoing are basic relevant facts. The evidence of course contained a host of peripheral details many of which were the subject of contradiction. It is not necessary to resolve inessential disputes. 10 Another brother of the prisoner, Brian Khouzame tried to restrain his brothers. Shortly after the departure of the car he, the prisoner together with other male members of his family approached Mrs Dawson and her daughter Sarah who were near their home further down the street. Mrs Dawson testified "they just all came marching up to me, a whole group of men and I was very frightened." Brian Khouzame addressed Sarah Dawson including the words "Don't bring any fucking Turks into the street". This circumstance is not an element in any crime for which the prisoner stands to be punished but his undissenting presence whilst his brother made this statement does nothing to contradict the conclusion that I have reached that he had formed an intention to drive the visiting youths away from the street. Save the rantings of a ten year old boy the prisoner had been given no cause to form such an intention. 11 At trial the prisoner claimed that he feared attack from the youths and that he had armed himself with the wooden piece and fanned it in front of him in self defence. He claimed that the victim sustained injury to his head when he intruded himself into the arc in which the waving wood travelled. I do not accept that anything of the sort happened nor that the blow was preceded by mutual pushing and shoving between the prisoner and the victim. 12 At the sentence hearing it was argued that I should find that the prisoner struck only a single blow rather than accept testimony of some witnesses who spoke of multiple blows being struck by the prisoner. As I have found, the blow struck by the prisoner brought the youth to his knees and I infer that the prisoner was well aware that he was thereafter at no real risk of retaliation from him. For the purposes of sentence I accept that it is only proved beyond reasonable doubt that the prisoner struck one blow to Caglar Vurangunes but it was a blow which is adequately described by common parlance as a "king hit". 13 I record that I also reject the prisoner's version that his contact with Gokhan Kumru was initiated by the latter placing him in a head lock. 14 The jury's verdict demonstrated that they were not satisfied that the prisoner intended to do grievous bodily harm to Caglar Vurangunes and I approach the issue of sentence on the basis that the killing was the consequence of an unlawful and dangerous act by the prisoner, namely the battery with the wood piece. I do not ignore the post mortem measurement which suggested the greater than average vulnerability of the victim to a blow to the head but this was not a case of a moderate blow causing unexpectedly grave damage, the violence in this instance was a full bodied blow with a substantial weapon. 15 I turn to some subjective matters. The prisoner was aged nineteen at the time of these offences. I have read the report of the psychologist Ms Duffy concerning Mrs Vurangunes which was tendered as a victim impact statement. I have considered it as required by Pt 6A of the Criminal Procedure Act and I do not find it appropriate to use its content to affect the determination of punishment. 16 The prisoner has no prior convictions. He comes from a close and supportive family. He obviously impressed the probation officer who prepared the pre-sentence report as well as a psychologist Ms Robilliard. Her interpretation of test results was also favourable although if, as she assessed, his typical mood states demonstrate "warmth, tenderness, non competitiveness and avoidance of tension and conflict" she offers little assistance for analysis of the violent pre-emptive strike which he undertook on Sunday 9 November 1997. 17 This brings me to a matter which has troubled me, namely whether the prisoner has come to accept responsibility for what he has done and whether he is remorseful and contrite. Of course, he is not obliged so to be but it has been put that I should find these matters in his favour and reflect them in mitigation of sentence. 18 I have rejected, as necessarily did the jury, the prisoner's claim of self defence but it is a useful guide to the reality of his recognition of responsibility to observe some matters concerning that claim. I raised the issue with counsel who asked me to accept as I do, that many of the letters of support tendered at the sentencing hearing had been obtained at the behest of family members when the issues of trial had not been determined. Even so, Ms Robilliard, for example, saw the prisoner at Parklea on 9th of this month and she reported (inter alia) "he said it was the first fight he had had in his life and he was 'frightened and scared… I did not know what to do'. In his own mind Adonis believes he acted in self defence, however, he entertains profound remorse over the victim's death. He said he regularly prays for the victim and the victim's family as well as his own." 19 I have found there was no fight antecedent to the prisoner's arming himself with the piece of wood and the fact was that he struck an essentially defenceless victim. Although the prisoner has stated to Ms Robilliard that he entertains remorse over the victim's death, his persistent claim of acting in self defence contradicts the proposition that he has recognized his responsibility for the death. 20 Accepting that some of the testimonials were prepared before verdict, it must also be observed that some bear dates subsequent to it. None of the authors of the letters comprising Exhibit 2 revealed any detailed knowledge of the prisoner's act. I do not propose to analyse all twenty three letters and two extracted samples will suffice for demonstration. Mr El-Adhami knew that the prisoner had been convicted of manslaughter but asserted that he did not believe that the prisoner was "capable of such an act". The finding of the jury was otherwise. This is a letter dated September 14th. Mr Jad Pavkovic whom I assume to be a relation of the prisoner's fiancee Angela Pavkovic stated that he (the prisoner) "does not deserve to be held in prison for a crime he did not commit". This letter is dated September 4th. The content of the letters does not persuade me that the prisoner has profound remorse for the victim's death as opined by the psychologist. It is of interest to note that Mrs Tuma a witness called at the sentence hearing understood and still thought that "from what (she had) heard it was an act of self defence". She had apparently been at a court hearing in 1998 when self defence was an issue being raised but she said the prisoner called her from remand two weeks before giving evidence. He did not take the opportunity then to alter her understanding. 21 I accept the assertions in the various letters comprising the exhibit mentioned that, these crimes apart, the prisoner is a person of good character. They have not persuaded me that he is contrite for his offences and I have concluded that he clings to the myth that his action was justified in whole or in part by some need for self defence. The consequence of that finding is not, of course to increase sentence but I do not make the finding invited by counsel that the prisoner has genuine remorse and contrition so as to attract particular leniency. 22 As I have said, the prisoner's prior good character is supported by these referees together with the opinions of the probation and parole officer and the psychologist Ms Robilliard. The combination promotes a finding which I make that the prisoner is so far as I can predict, unlikely to re-offend. In terms of the question of rehabilitation there should be a determination favourable to the prisoner. The need for sentence to reflect personal deterrence is therefore of a low order. 23 The issue of general deterrence cannot be ignored. The prisoner did not speak the offensive words to Mrs Dawson that I have quoted and although he was present and in company at the time of their utterance, I do not attribute to him the specific motive which those words suggest but it was nevertheless his intention to make the visitors quit the area. Whatever was the inspiration for the confrontation outside the prisoner's house, his use of a significant implement to assault an unarmed youth must meet with observable condemnation. The community would expect that such an assault leading to death would attract an appropriate degree of punishment. 24 During submissions it was said that of all crimes manslaughter could be said to have the broadest spectrum of culpability ranging from what might be described as just beyond accident to just short of murder. That situation can be said to be recognized by s24 of the Crimes Act which specifies a maximum penalty of twenty five years penal servitude for manslaughter with a proviso that a judge in an appropriate case for which nominal punishment is deemed sufficient may discharge a jury from giving any verdict. In my assessment the prisoner's crime of manslaughter lies at neither extreme. I do not overlook the victim's particular vulnerability but it is repeated that the killing was in stark terms the result of an armed attack by the prisoner. 25 I do not accede to the submission of counsel that a sentence to be served by way of periodic detention would be appropriate. 26 The Sentencing Act requires that the additional term component of a sentence not exceed one third of the minimum term unless there are special circumstances. I consider that there are such circumstances which justify extension of the additional term component during which the prisoner will potentially be at conditional liberty on parole. He is still a comparatively young man being committed to custody on a first occasion. After his release it is desirable that he have objective assistance over a significant period from a person independent of his close knit family to guide him in accepting the reason for his incarceration and re-entering the community with a mature and appropriate attitude. An officer of the Probation and Parole Service would fulfil that role. 27 The prisoner was in custody for 38 days after being charged and before being bailed. He was returned to custody after the jury's verdict. I will backdate the sentences to take account of these circumstances. 28 Adonis Khouzame for the manslaughter of Caglar Vurangunes, you are sentenced to penal servitude for five years, such sentence to consist of a minimum term of three years commencing on 3 July 1999 and to expire on 2 July 2002, together with an additional term of two years to commence on 3 July 2002. 29 For assault occasioning actual bodily harm upon Gokhan Kumru you are sentenced to a fixed term of penal servitude for three months commencing on 3 July 1999 and to expire on 2 October 1999. That fixed term is imposed as it is to be served concurrently with part of the minimum term component of the sentence just imposed for manslaughter. 30 You will be eligible for parole on 2 July 2002. **********