New South Wales Supreme Court CITATION : R v Hamoui [No 4] [2005] NSWSC 279 18/10/04 - 22/10/04 25/10/04 - 29/10/04 1/11/04 - 5/11/04 8/11/04 - 12/11/04 15/11/04 - 19/11/04 HEARING DATE(S) : 22/11/04 - 26/11/94 29/11/04 - 30/11/04 1/12/04 6/12/04 - 10/12/04 13/12/04 - 14/12/04 16/12/04 - 17/12/04 JUDGMENT DATE : 15 April 2005 Common Law Division JURISDICTION : Criminal List JUDGMENT OF : Kirby J DECISION : Sentenced to imprisonment for 11 years commencing on 3/11/2001 and expiring on 2/11/2012, with a non parole period of 8 years. Eligible for release to parole on 2 November 2009. CATCHWORDS : Criminal Practice & Procedure - Jury verdict - not guilty murder - guilty manslaughter - provocation not eliminated - strangulation - victim bound - gratuitous cruelty - sentence towards top range. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Veen v The Queen (No 2) (1988) 164 CLR 465 CASES CITED : The Queen v Previtera (1997) 94 A Crim R 76 Regina PARTIES : Abdul Razzak Hamoui FILE NUMBER(S) : SC 70776/03 T R Bailey (Crown) COUNSEL : M Ierace SC (Acc) Ms R Lewis - DPP (Crown) SOLICITORS : Ms C Taylor - Hardin Law (Acc) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST DAVID KIRBY J Friday 15 April 2005 70776/03 REGINA v ABDUL RAZZAK HAMOUI JUDGMENT [No 4] - REMARKS ON SENTENCE 1 KIRBY J: On the afternoon of Monday 25 June 2001 Julie Haklane spoke to her mother by telephone, telling her that she would see her after work. At 4.10 pm she telephoned her boyfriend, Raymond Bayeh. She told him that she had just finished work. She rang again at 5.03 pm. She told Mr Bayeh that she was on the Windsor Road, ten minutes from her home in Merrylands. She invited him to telephone her at home in 15 minutes time, so that they could make arrangements for the evening. 2 That was the last known communication with Julie Haklane. She failed to arrive home at 5.30 pm. She did not thereafter answer her phone. By 5.40 pm her phone messages went through to voicemail. 3 The parents of Ms Haklane were naturally concerned. They were the more concerned because their daughter was a diabetic. She required insulin. She would ordinarily have an insulin injection each afternoon. The parents therefore went to the police. They related to the police their phone conversations with their daughter that afternoon. They also told the police of a tempestuous and long-standing relationship between their daughter and Abdul Razzak Hamoui. 4 That evening the parents and friends of Julie Haklane went to the home of Mr Hamoui in Guildford. However, he was not at home. He arrived home at approximately 11.00 pm that evening or shortly after. Members of the family sought to confront him with their suspicions. Mr Hamoui refused to speak to them. Indeed, he summoned the police. The police came shortly after midnight on Tuesday 26 June 2001. Mr Hamoui told the police that he had not seen Julie Haklane. He knew nothing of her whereabouts. He complained of the harassment of the Haklane family. He said that he feared to go outside his home. 5 On Thursday 28 June 2001, the body of Julie Haklane was found in her car in Eton Street, Fairfield. The car was parked by the side of the road. Julie Haklane was seated in the passenger seat. She had been strangled. There was evidence from residents that the vehicle had been left in Eton Street on the Monday evening. 6 After a lengthy and persistent investigation, Abdul Razzak Hamoui was arrested on 3 November 2001. He was charged with the murder of Julie Haklane. He pleaded not guilty to that charge. On 17 December 2004, after a lengthy trial, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. It remains for me to pass sentence. To do so, I must first determine the facts relevant to the sentencing discretion in a manner consistent with the jury's verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Hamoui, it is enough that they should be proved on the balance of probabilities. Background. 7 Mr Hamoui was born in Lebanon on 20 April 1974. He came from a Muslim family. His mother and father separated and divorced soon after his birth. In accordance with local custom, he was given into the custody of his father. His father later remarried. The family then emigrated to Australia in approximately 1985. At that time, Mr Hamoui was about 11 years old. 8 In 1996, or thereabouts, Mr Hamoui met Julie Haklane. He was then aged 22 years. She was 19 years old. She came from a Lebanese Christian family. At first they got on well. Ms Haklane said "he treated me like a princess". However, that was to change. Ms Haklane fell pregnant. Her mother, but not her father, became aware of the pregnancy and the subsequent termination. No doubt the family also learned something of Mr Hamoui's background. In 1993, before meeting their daughter, he had committed a number of serious criminal offences for which he had served various gaol sentences. The Haklane family plainly disapproved of Julie's relationship with Mr Hamoui. They sought to bring it to an end by taking her to Lebanon for an extended period. 9 Upon returning to Australia, however, Julie Haklane re-established contact with Mr Hamoui. They resumed their relationship. Again she became pregnant. Again the pregnancy was terminated. Indeed, Ms Haklane became pregnant a number of times, terminating the pregnancy each time. She chose not to disclose these matters, or the detail of her relationship with Mr Hamoui, to her family. 10 By 1999, the relationship between Julie Haklane and Mr Hamoui had changed. Mr Hamoui was a competitive kick boxer. On 3 July 1999, Ms Haklane went to the police. She complained that Mr Hamoui had kicked her in the thigh. She had severe bruising to her right thigh. However, she did not wish to press charges. She simply wanted the police to speak to Mr Hamoui, which they did. 11 By the end of 2000, Julie Haklane had broken off her relationship with Mr Hamoui a number of times. She had formed new relationships with other men, which were usually short lived. She even began working as a prostitute or sex worker at various massage parlours in the western suburbs. However, at the same time she continued an intimate relationship with Mr Hamoui. 12 In November 2000, Julie Haklane met Mr Allen Yousif. Mr Yousif met with the approval of her family. However, at the same time as she was seeing Mr Yousif, Julie Haklane was speaking to Mr Hamoui and occasionally seeing him. Mr Hamoui, meanwhile, became increasingly disturbed about her new relationship. 13 On 4 January 2001, Ms Haklane and Mr Hamoui had an argument. Fearing violence, Ms Haklane phoned her mother, so that she would hear their conversation. Her mother then asked her father to go to Mr Hamoui's home in order to sort the matter out. He did so. By the time he got there Julie Haklane had left. There was, nonetheless, a confrontation between Julie Haklane's father and Mr Hamoui, where it was said that threats were made. Mr Hamoui's father was also present. 14 Soon after that confrontation, Mr Hamoui complained to the police that someone had shot at his car. He showed the police the bullet hole through the windscreen of the car. He told the police of a further incident when he was in his car outside Julie Haklane's home. He said that he was threatened by Mr Allen Yousif, who placed a gun in his mouth and warned him to have nothing further to do with Julie Haklane. Mr Yousif denied that allegation. 15 As a consequence of these events, Mr Hamoui, on his own account, became increasingly disturbed. On Monday 21 January 2001, five months before Julie Haklane's death, Ms Haklane went to the police in the early hours of that morning. She made a complaint against Mr Hamoui. She alleged that he had abducted her at gunpoint as she was driving her car. In the course of the abduction, he had threatened to shoot her and to shoot himself. A detailed statement was taken from her by the police, which she signed. 16 The police then obtained a warrant to search the home of Mr Hamoui. A gun was found conforming to the description provided by Ms Haklane. Mr Hamoui was charged, both with the abduction and with the possession of an unauthorised firearm. 17 However, four days later, Ms Haklane again went to the police. She said she wished to alter her statement. She insisted that Mr Hamoui had not threatened her. Rather, he had threatened to kill himself, such was his despair at their separation. She claimed that she had gone to the police to obtain help for him, not intending that he be charged. 18 The charge of abduction was later withdrawn and dismissed. The charge of being in possession of an unauthorised firearm remained. Mr Hamoui was given bail in respect of that charge. 19 By the end of February 2001, the relationship between Julie Haklane and Mr Allen Yousif had come to an end. Ms Haklane and Mr Hamoui resumed their relationship more or less, although in secret. 20 However, in May 2001, Ms Haklane met another man, Mr Raymond Bayeh, at a family wedding. Mr Bayeh came from a Christian family well known to her family. She began seeing Mr Bayeh, encouraged by her family. Soon they formed a relationship which was intimate. At the same time, however, Ms Haklane continued to communicate with and occasionally see Mr Hamoui. Her relationship with Mr Hamoui remained intimate. 21 Mr Hamoui was, understandably, not happy about Julie Haklane's new relationship. He confronted her on 9 June 2001, two weeks before her death. The following day Ms Haklane attended the local police station with a friend. She alleged that she had been assaulted by Mr Hamoui and her phone stolen. Although Mr Hamoui denied these allegations, I have no doubt that he did assault Ms Haklane. Ms Haklane made it clear, however, that she did not wish to press charges. She simply asked the police to retrieve her telephone. 22 Notwithstanding the assault, Julie Haklane again began communicating with Mr Hamoui within a matter of days. She continued to see him. At the same time she continued to see Mr Bayeh. On Saturday 23 June 2001, Mr Hamoui followed Ms Haklane's car. She had told him that she would be babysitting. He plainly doubted her assurance, believing that she would be seeing the other man. A confrontation took place involving Ms Haklane's sister, Naha Erdem. Ms Haklane's continuing relationship with Mr Hamoui was clearly a source of frustration and irritation to the family who wanted her to have nothing to do with him. An argument ensued between Julie Haklane and her sister. 23 After the argument, and notwithstanding the pressure of the family, Julie Haklane again communicated with Mr Hamoui. She made arrangements to see him for lunch on Monday 25 June 2001, the day that she disappeared. The Incident. 24 Ms Haklane began a new job on Monday 25 June 2001. The demands of that job meant that she was not able to keep her luncheon arrangement with Mr Hamoui. She nonetheless continued to communicate with him throughout the day by text messages, or by speaking to him on the phone. Ms Haklane also saw and spoke to her new boyfriend, Mr Bayeh, and made arrangements with him. 25 At 4.27 pm on Monday 25 June 2001, Ms Haklane spoke for a minute with Mr Hamoui. Immediately after that conversation Mr Hamoui began to walk from his home in Guildford to the Merrylands Police Station, where he was required to report in answer to his bail. He signed the bail form at 5.10 pm. 26 At about the same time, Julie Haklane also left her place of employment at Seven Hills, driving towards Merrylands. During her journey she repeatedly tried to speak to Mr Hamoui on her mobile phone. Mr Hamoui, however, did not have his mobile phone with him. Her calls went through to voicemail, as did her text messages to him. Her last message at 4.43 pm was, "Where r u?". 27 The jury obviously inferred that Julie Haklane met Mr Hamoui at or about the time he reported to the police station, that is, 5.10 pm. It was unsurprising that they should have done so. They had, as mentioned, spoken to each other at 4.27 pm, before they each set out for Merrylands. Ms Haklane's persistent messages to Mr Hamoui after 4.50 pm make it plain that she was trying to meet up with him. Her last call (made to her new boyfriend) at 5.03 pm was received by equipment within the Holroyd District, which is immediately adjacent to the Merrylands Police Station. Moreover, Ms Haklane had, in the weeks preceding 25 June, often dropped Mr Hamoui at the police station in order that he could report for bail. 28 As mentioned, at 5.40 pm on Monday 25 June, all calls to Ms Haklane's mobile phone were diverted to voicemail. I infer that, between approximately 5.10 pm and 5.40 pm, Mr Hamoui met Ms Haklane and that she was thereafter within his power. When her body was found three days later, it was apparent that she had been strangled. There was significant bruising to her neck. A ligature had not been used. 29 The pathologist who performed the autopsy, Dr Little, observed a number of bruises and abrasions to Ms Haklane's wrists. They were roughly parallel. Dr Little also found a sticky substance on her wrists. The same sticky substance was found on her abdomen near her belly button. Within the car there was black sticky tape. Dr Little thought that the pattern of bruising and the sticky substance were consistent with Ms Haklane's hands having been bound, either in front or behind. Both the Crown and Counsel for Mr Hamoui, when addressing the jury, approached the matter upon that basis. Obviously, if she were bound, it was before she was strangled. There would be no point in binding her wrists after she had been strangled. 30 Mr Hamoui did not give evidence during the trial. Nor did he give evidence on sentence. He was, however, interviewed by the police on a number of occasions before his arrest. On each occasion he said that he was innocent. He had not strangled Julie Haklane. He knew nothing of her fate. When asked to account for his movements between 5.10 pm on the afternoon of Monday 25 June 2001 and approximately 11.00 pm when he said he got home, Mr Hamoui said that he went to the Merrylands Oval. The Merrylands Oval is a sports complex a short distance from the police station. He said that he sat in the park for perhaps four or five hours contemplating his life. He then walked home. 31 The Crown suggested, and the jury obviously accepted, that Mr Hamoui's account was a lie told with a consciousness of guilt. It was mid winter. It would certainly be odd to sit in a park at that time for four or five hours. Moreover, Mr Hamoui, in his answers to the police, stated and restated that he had only seen one or two people in the park, walking their dogs. He said the park was illuminated only by lights on the footpath. In fact, on the evening of Monday 25 June 2001, the park was crowded. It was used by a number of football and soccer teams who trained under floodlights. 32 The charge Mr Hamoui faced was murder. In order to be convicted of murder, the jury had to be satisfied beyond reasonable doubt that the Crown had eliminated provocation. Here, the jury, by its verdict, was not so satisfied. It is not possible to say which particular aspect of provocation the Crown had not eliminated beyond reasonable doubt. 33 The Crown has invited me to find that, because Mr Hamoui knew about Julie Haklane's new boyfriend and because she was bound before she was strangled, the claim for provocation is "diminished". Mr Ierace SC, for Mr Hamoui, submitted that such a submission inevitably involved speculation about matters which were essentially unknowable on the evidence. 34 Inevitably, a detailed reconstruction of what probably happened does involve speculation. Nonetheless, a number of observations can be made. First, it is plain that at some point before her death Ms Haklane was bound and helpless. I infer that she was already in a weakened state, having not had insulin, and that this was something well known to Mr Hamoui. Secondly, Mr Hamoui was both jealous and volatile. I infer that, whilst Ms Haklane was helpless, he strangled her, probably as a result of loss of self control. Thirdly, in the nature of things, manual strangulation involves the application of force to the victim's throat for a significant period. I would infer an intention to kill. Fourthly, I am urged by the Crown to find that binding Ms Haklane in the manner described amounted to gratuitous cruelty. I believe it appropriate to so characterise Mr Hamoui's actions. One can only imagine the terror felt by Ms Haklane as these events unfolded. Finally, it is said on behalf of Mr Hamoui, that Ms Haklane suffered from a heart defect which severely occluded one of her arteries, such that death was likely to have been more rapid than it might otherwise have been. Whilst that may be so, strangulation, as a means of death, is inevitably much slower than other forms of killing. There can be no doubt that the victim suffered, whatever the state of her arteries. 35 Let me move from the crime committed by Mr Hamoui to his subjective circumstances. Subjective Circumstances of Mr Hamoui. 36 Mr Hamoui was 27 years old when this crime was committed. He is now almost 31 years. 37 His early years were troubled. As mentioned, his mother and father separated and divorced when he was a few weeks old. He was brought up by his stepmother. He was abused, both emotionally and physically by her. He believed, until about the time of his arrival in Australia, that his stepmother was, in fact, his mother. 38 Once in Australia, Mr Hamoui attended local schools. He described himself as an average student. He obtained the School Certificate. Having left school, he worked for a fencing contractor for about a year. Thereafter, he worked occasionally. Part of his difficulty, in terms of employment, was an association with "drugs" and what he described to psychologists as "a bad crowd". He experimented with various drugs, although he said he did not become addicted to any of them. 39 In March 1993, having been convicted of malicious damage, he was placed upon a recognizance to be of good behaviour for two years. In December 1993, during the currency of that bond, Mr Hamoui was convicted of armed robbery. He was sentenced to four and a half years imprisonment with a minimum term of 18 months. Having been released to parole on 30 November 1994, Mr Hamoui's response to supervision by the Parole Service was poor. He committed further offences. On 28 August 1995, he was sentenced to periodic detention for five months in respect of the charge of assault and three months in respect of violent disorder. He was, at the same time, placed upon a one year bond for carrying a cutting weapon. 40 On 9 October 1995, Mr Hamoui was again brought before the Parramatta Local Court. He was charged with malicious damage. He was sentenced to two months imprisonment. The orders for periodic detention were converted to orders for full time imprisonment. On 12 October 1995, the Offenders' Review Board revoked his parole, backdating the revocation to 8 May 1995. 41 Mr Hamoui was then released on 1 May 1996. According to the Parole Service his compliance with supervision on this occasion improved. However, he was convicted of a series of driving offences (driving whilst disqualified and driving an uninsured vehicle) which were dealt with and which have no particular relevance to the present matter. 42 On 26 July 2001, Mr Hamoui was sentenced to three months imprisonment for the unauthorised possession of a firearm. This was the charge brought by the police after they searched Mr Hamoui's home, following the complaint of abduction by Julie Haklane on 24 January 2001. It will be remembered that, at the time he strangled Julie Haklane, Mr Hamoui was on bail for the firearms offence. That is a circumstance of aggravation. 43 Although Mr Hamoui's record included serious offences involving violence, that record was not, in terms of s21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, an aggravating factor (cf Veen v The Queen (No 2) (1988) 164 CLR 465). Nonetheless, Mr Hamoui, by reason of his record, cannot expect the leniency which may otherwise be extended if there were no such record. Prospects of Rehabilitation. 44 Mr Hamoui has been in custody since his arrest on 3 November 2001. It is clear that he has used his time well. He has worked whilst in gaol. He has learned to cook and is known within the gaol as "the Chef". 45 He came to the notice of the Staff Officer of the MRRC at Silverwater, Mr Ian Gregory, some two years ago as the delegate representing Lebanese prisoners. Mr Hamoui has returned to his Muslim faith, making an informal study of aspects of that religion. He is looked upon by others within the gaol as a religious leader. He has, on occasions, led other Muslim inmates in prayer. He is highly regarded by Mr Gregory and prison staff. He is well mannered and well behaved. Unlike many other inmates, he is always neat in appearance and his cell always tidy. However, Mr Hamoui lost the position of Delegate through a breach of prison discipline which involved the unauthorised possession of a mobile phone. 46 Mr Hamoui said to the psychologist who interviewed him that he now condemns his own promiscuous sexual behaviour during the time of his relationship with Julie Haklane, and his drug taking and alcohol consumption. 47 Since March 2004 Mr Hamoui has formed a relationship with another woman. She is aged 22 years. She is the sister of another inmate. She visits Mr Hamoui regularly and speaks to him almost every day on the telephone. She has introduced her parents to him. She is engaged to him. She has provided him with religious books and describes Mr Hamoui as being "at peace". 48 Counsel for Mr Hamoui, upon the basis of this material, has urged a finding that Mr Hamoui's prospects of rehabilitation are good. Mr Hamoui has affirmed to the psychologists that, upon his release, he intends to find work, possibly connected with his renewed Muslim faith. 49 I do not doubt that, insofar as Mr Hamoui has embraced the Muslim faith, and especially the morality which underpins that faith, that this is a positive development. His commitment to that faith, and that morality, must be examined however in the context of other matters which bear upon his prospects of rehabilitation. First, Mr Hamoui maintains his innocence in the face of what must be regarded as a strong Crown case. There is no acknowledgement of responsibility. There is no contrition. 50 Secondly, it is plain that Mr Hamoui has a history which includes serious criminal offences, many involving violence. 51 Thirdly, on any view, Mr Hamoui's behaviour in the weeks and months before Julie Haklane's death can only be described as "disturbed". On his own account, he was contemplating ending his own life in January 2001 by shooting himself. Since that time he has been taking antidepressant medication prescribed by his doctors. 52 Fourthly, a psychologist, Ms Robilliard, carried out a number of tests. She made findings which suggest caution in predicting Mr Hamoui's future. She said this: "Razzak's performance on the personality test administered evidenced a markedly paranoid disposition. Depression and anxiety also features and elements of passive/aggressive behaviour. From the information he gave it appeared Razzak has had problems with depression over the past several years as in the months leading up to the offence he reports being on antidepressant medication which has been continued in custody. As noted in the introduction to this report, at our meeting he did not appear to be mood disordered and his emotional expressions were appropriate to themes of our discussion." 53 Weighing these matters, one cannot say that the prospects of rehabilitation are good. At this point there are both positive and negative features. Whilst there are reasons for hope, one must be guarded about the future. 54 I have not been urged to find special circumstances. I see no particular basis for such a finding. The sentence I have in mind will provide for adequate supervision, after a small adjustment to the statutory ratio. Such sentence should date from 3 November 2001, when Mr Hamoui entered custody. 55 Manslaughter involves the taking of another life. It is obviously a most serious crime. The life taken was that of a young woman, 24 years old. She was much loved. She had an extraordinary vitality and energy. Her loss, and the horror concerning the circumstances of her loss, has devastated her family. Her brother read to the court a Victims' Impact Statement which documented the profound effect of Julie Haklane's death upon members of her family. The statement described with great poignancy the torment and anguish of each member of the family and especially her parents, who continue to suffer and will suffer for the rest of their days. I must, of course, deal with such material in a manner consistent with The Queen v Previtera (1997) 94 A Crim R 76 at 85. 56 The maximum penalty for manslaughter is 25 years imprisonment. The circumstances in which manslaughter may be committed, however, vary enormously. The sentencing range is correspondingly large. I have examined the sentences imposed in a variety of cases for the insight they collectively provide into the sentencing range (cf Sentencing Homicides in New South Wales 1994-2001, p24ff and Table 9 p31). I am conscious of the fact that the sentence I believe appropriate is at the upper end of the range. However this was, in my view, a cruel, brutal and awful crime. 57 Abdul Razzak Hamoui, I sentence you to imprisonment for 11 years commencing on 3 November 2001 and expiring on 2 November 2012, with a non parole period of 8 years. You will be eligible for release to parole on 2 November 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.