Regina v Mencarious [2006] NSWSC 719

New South Wales Supreme Court

CITATION : Regina v Mencarious [2006] NSWSC 719

HEARING DATE(S) : 13/03/06 - 21/03/06 inclusive; 07/07/06

JUDGMENT DATE : 17 July 2006

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : SENTENCE OF IMPRISONMENT IMPOSED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - MURDER - CONVICTION FOLLOWING TRIAL - SENTENCE

PARTIES : Regina v Ashraf Mencarious

FILE NUMBER(S) : SC 2005/1090

COUNSEL : M. Grogan (Crown) J. Klarica (Prisoner)

SOLICITORS : Solicitor, Public Prosecutions (DPP) Marsdens (Prisoner)

LOWER COURT DATE OF DECISION : n/a

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

MICHAEL GROVE J

17 July 2006

2005/1090 - REGINA v ASHRAF MENCARIOUS

SENTENCE

1 HIS HONOUR: Ashraf Mencarious, following your plea of not guilty, you have been convicted of the murder of your wife by verdict of a jury and it is my task to sentence you for that crime. 2 You were born in Egypt on 10 April 1967 but migrated to Australia with your family when you were aged about three or four years. The migration was arranged through the Eastern Coptic Church and the adherence of your family and yourself to this faith has been a matter of some significance. 3 Formal education was undertaken in local schools in the western suburbs of Sydney and you left Holroyd High School in Year 11 to pursue studies in accounting at Granville TAFE. In steady employment for over ten years, you progressed from clerk to costing supervisor and it is obvious that you were a diligent employee. 4 During this period you met a woman whom you married in 1994. That marriage produced two children, a daughter born in 1995 and a son in 1997. You had moved to Queensland and the relationship between yourself and your wife deteriorated and the marriage failed. There have been allegations about your conduct towards your first wife but I am not satisfied of the facts to the necessary standard and I make no adverse finding towards you in those regards. I note that you have not seen these children since late 2001 although I accept that personal contact would be inhibited by the need for interstate travel. 5 You reported to Mr Benad, a psychologist, that you were depressed after the breakdown of this marriage. You apparently ceased employment for a time, as he noted that you resumed employment, and worked for a number of corporations in administrative, financial or accounting roles. 6 I am presented with material which differs in some detail as to how your second marriage came about. Mr Benad records that you spoke to your father about a desire for a committed relationship and your father commented on a woman whom he had met through the church in Egypt, Nevine Youssef. Ms Bond, who prepared the pre sentence report, recorded that you told her that it was your family suggestion that they arrange for you to marry a second time. You told her that you were not completely happy with the idea, but in contemplating your first marriage which was a love marriage which failed, you considered that perhaps an arranged marriage would give you a stable family life. You expressed a desire for this. You told Ms Bond that it was your mother who made first contact with Nevine Youssef's mother through the church in Egypt and that "the families arranged from there on to the wedding". 7 You travelled to Egypt to meet Nevine Youssef. You had been there for fifteen days when you married her on 27 January 2002. You returned to Australia shortly thereafter, apparently on or about 8 February 2002. Your wife's visa needed to be arranged and she did not arrive in Australia until August 2003. 8 Overall the marriage was far from happy. There were a number of incidents, to some of which I will later refer. Except where a third person was present as a witness, I have only your version of events and of course I have no version from your wife. 9 Despite unpromising beginnings and an apparent mistrust of your wife, which you said was consequent upon her stripping the monies from an account which you made available to her, she became pregnant and on 1 July 2004 a son, John, was born. However, you became separated from your wife and eventually she was staying in a women's refuge with the child. Among other things, an apprehended violence order was taken out. Nevertheless, and in breach of the rules of the refuge, your wife continued to have contact with you and you met from time to time. 10 At the core of the reasons that you propose for this second marriage failure is an assertion that Nevine entered it for the purpose of facilitating the migration of her family to Australia, particularly a younger brother to whom she was close. 11 In evidence in the sentencing proceedings, your sister Mrs Sivapragasam asserted that Nevine had admitted to her that she, Nevine, had told your parents that this was the case. I do not accept this evidence or the assertion that your wife entered the marriage as some sort of sham. 12 Far from her family seeking you out as a husband for her in order to enable them to come to this country, on both the versions that you had given to Ms Bond and Mr Benad, it was your family, whether through your father or mother, who sought her out as a wife for you. 13 I would accept that Nevine may have expressed the desire for the company of her family in this land to which she was a stranger, but I am convinced that your assertions on this subject are gross exaggerations. I do not accept your sister as a reliable witness. It is an example of her tendency to unacceptable overstatement that she said you have "always been a wonderful family man and an amazing father" who "absolutely loves, adores and cherishes all three of his children as they do him". At the time of this assertion by your sister, in a document dated 13 April 2006, it was the fact as I have mentioned that you had not seen the children of your first marriage since some time in 2001. 14 Contrary to your proposition, to the extent that there was any desire to have the marriage succeed, I am satisfied that it emanated from your wife. On the fatal night when you had arranged to spend it together at the hotel in Rosehill, Ms Zrno testified and I accept that she had observed that your wife was "excited and couldn't wait" and was "getting dressed up" for the anticipated dinner and reunion. 15 Some evidence was given concerning what was described as Nevine flirting towards you even in the unlikely circumstances of court proceedings. That would seem to me to be more consistent with her trying to attract you than to repel or otherwise mistreat you. 16 Nevine had come to reside in the refuge after an extraordinary event which occurred along the Putty Road near Windsor. Apparently, the purpose of the excursion was to visit the Coptic Monastery in the area but you did not arrive there and, whatever provoked it, you abandoned her and left her on foot in bushland and along a relatively remote rural roadway. 17 Fortunately Detective Inspector Shoebridge, an off duty officer returning from a private camping trip, found her on the roadway. He observed her shaking and crying and in a high level of distress. By getting her to speak to a female officer at Windsor Police Station and confirm his identity, he was able to persuade her to accompany him to the police station where she met Acting Inspector Wendy Izzard who, amongst other things, contacted you by telephone. 18 I regard the content of this telephone call as more revealing of your general attitude to your wife than the protestations of affection and the like which you have made, and your claims that it was you who was making an effort for the marriage to succeed. 19 Inspector Izzard said to you "This is Inspector Izzard from Windsor Police. Is that Mr Mencarious?" You replied "Yes". She said "I have your wife at the police station very upset. She's complained that you kicked her out of the car in the Kurrajong area and left her there". Your response was "She needs to understand her place here and respect me. I am on my way home and I don't want her to come back". Inspector Izzard then said "Wait just a minute, it's not your place to say whether or not your wife returns home. If she makes a complaint to the police about your treatment of her you may find you will be looking for somewhere else to live". You then rejoined "We live with my parents and we don't want her here". Inspector Izzard then said "Well, it would be in your best interest if you attend the Windsor Police Station and give your version of events". You then said "I can't get there, I have a baby". I am satisfied that you did not regard your marriage as a partnership and you considered Nevine a subordinate who was subject to your dictate. 20 Of course, at this time the baby John was only a few months of age. 21 As I have said, irrespective of what later happened, what you said to Inspector Izzard was convincingly demonstrative of the attitude that you exhibited towards your wife. 22 I move now to the night of Nevine's death. At the hotel, you engaged in sexual intimacy with each other. As I have said, I have only your version of what occurred after that. I am sceptical of your testimony generally and I note that, both during your evidence at trial and after conviction in the sentencing hearing, you frequently paused, and apparently deliberated for lengthy periods, before answering and the impression which was conveyed to me was that you were contriving your answers rather than responding candidly. 23 Your version is that Nevine again raised the question of her family's migration to Australia and that you then realized that she was not seeking genuine reconciliation. I do not find this credible, and even assuming it to be so, your subsequent behaviour cannot possibly be justified. I observe that there is evidence of your purchase of liquor in that afternoon, other than the bottle of bourbon which you later wielded as a weapon, and that the post mortem sample later analysed detected no alcohol in Nevine's blood. The probability was that you were disinhibited to an extent by your consumption of liquor but, whatever triggered your attack, you struck your wife severe blows to the head with the bottle. Your explanation is that you did this to force her to release a bite hold on your finger. No doubt at some stage of a struggle, Nevine did bite your finger but the seriousness of this can be gauged by the extent of treatment which consisted of application of antiseptic and a bandaid. 24 Of more critical significance to my mind is the fact that Nevine did not die as a result of the savage beating which you inflicted upon her with the bottle. She died of asphyxiation. To the extent that it was suggested, albeit somewhat faintly, that this may have occurred when you had your hand over her mouth and nose because your finger was in her mouth, I reject the suggestion. 25 I am satisfied beyond reasonable doubt that, after the attack with the bottle you applied something to Nevine's mouth and nose and thereby killed her by asphyxiation. I am conscious of the absence of precise evidence demonstrating what the implement was and that the evidence does not establish that it was the pillow which was found in the room, but that absence of precise identification of what you used does not create any doubt in my mind about it being your act which caused the death by asphyxiation. I am further satisfied in all the circumstances that at the time you caused the death, it was your intention to kill your wife. 26 I am fortified in reaching the latter conclusion somewhat by your subsequent conduct. You were familiar with the hotel, having stayed there some nine or ten previous occasions, although this was the first occasion that Nevine had been there. You left the hotel after killing her, avoiding those areas where you might have been filmed by security cameras which were installed. You did not seek to contact reception in order to summon an ambulance nor did you do anything yourself about summoning assistance although in addition to a hotel phone you had a mobile phone with you. 27 In fact you used it and telephoned a taxi. After some delay however, you got your own car and drove yourself to a police station. You may also have spoken to your father before you entered the police station where you said, somewhat disingenuously, to the constable on duty that you thought you had done something horrible to your wife. It is a trivial matter but offers an indication of a self-centred importance that you insisted upon speaking to an inspector. 28 This was arranged and you spoke to Inspector Krawczyck and gave him the same sort of information that you had given to the constable except that you added that you thought you had killed your wife because you hit her a few times over the head with a bottle of bourbon. 29 By the time you told Inspector Krawczyck these things, I conclude that you had considered your situation and realized that it was inevitable that you would be affixed with responsibility for hitting her with the bottle, which could easily be demonstrated, and that you were deliberately concealing the subsequent activity by which you had ensured her death by suffocation. 30 Parliament has decreed that an offence of murder which is in the middle of the range of objective seriousness for such offence should have imposed a standard non parole period of imprisonment for twenty years. It is therefore a matter to which I must turn to determine whether your offence is in the middle of that range. 31 It can be contemplated that a range of seriousness for murder might locate a killing done in the heat of a moment's passion towards a lower end whilst something such as cold blooded killing for material gain might be located at an upper end. 32 I do not assess your offence at the lower end of the notion of range. Whilst I would accept that your multiple strikings of your wife with the bottle occurred during an explosion of passion, whether provoked by the comparatively minor bite on your finger or her raising the subject of her family or anything else, your subsequent act of killing her by asphyxiation falls well outside the category of lower objective seriousness. 33 Your act was deliberate and separate from the attack with the bottle and, as I have found, it was intentionally fatal. 34 I would assess your offence to lie at least within the middle of the range of objective seriousness for an offence of murder. 35 It is not inevitable that upon such a finding the standard non parole period must be applied if there are reasons to depart from it, and I turn to consider subjective matters raised on your behalf. In an appropriate case, such matters may operate to result in departure in favour of an offender from imposition of the standard non parole period. 36 You have no prior convictions. I have examined the testimonial letters which have been tendered on your behalf. I have no reason to think that the various authors are other than well meaning but the utility of their expressions is somewhat diminished by the absence of any acknowledgement of the detail of your crime which not only involved a savage attack, but a subsequent and intentional killing. One author referred to a "sad accident" and others, in differing ways, expressed levels of disbelief. Of course it can be said to be out of character for you to commit the crime, as I accept that your life to date has been free of conviction for any offence whatever, but I would be inclined to give greater weight to the proposition that your crime was out of character if I were persuaded that you were remorseful for what you had done. 37 I am not so persuaded. At the sentencing hearing you expressed sorrow and regret but were extremely reluctant to specify just what it was that your sorrow and regret was for. I consider that you are a self centred person and have sought to manipulate the facts and circumstances as far as you were able in order to disguise the extent of your culpability. You are not to be additionally punished by reason of that conclusion but it is a circumstance to be weighed when I consider whether this is an appropriate case in which to ameliorate the imposition of the standard non parole period. 38 In the course of submissions on your behalf, counsel referred to the specification of possible aggravating and mitigating factors which are tabulated in the sentencing statute. The use of the table as a sort of check list is unnecessary and indeed has been disapproved but in this case, in any event, the Crown Prosecutor did not submit that any aggravating factor as therein specified needed to be taken into account in addition to the criminality manifest in the facts, circumstances and elements of the crime of murder which you committed. 39 It is submitted on your behalf that you were provoked by the revelation (on your version) that your wife's real aim was to arrange her family's migration and by her biting your finger. Neither of these matters assume significance sufficient in my view in the context of your deliberate killing to mitigate a sentence otherwise assessed. 40 It was also argued that biting your finger gave rise to a mitigatory element of duress. This is a somewhat unconventional appeal to duress as a factor, however for the reasons just given concerning provocation, I would not ameliorate sentence on this account. This is not a case of relevant duress. 41 I have already noted my finding of the absence of genuine remorse and that absence renders it difficult to prophesy rehabilitation. Your conduct in gaol has been satisfactory but your capacity for sudden violence, which followed closely upon an intimacy which I infer was not so violent, and your unwillingness to reveal what you did to cause asphyxiation after the attack with the bottle, leaves me unable to make a positive finding of likely rehabilitation. 42 Next it was submitted that you should have consideration for your assistance to law enforcement authorities. The assistance is said to be your surrender to the police which, on any view, was delayed for some time after the fatal events in the hotel room. As I have already discussed, your assistance did not extend to a complete revelation of facts which must be within your knowledge and in particular revelation of exactly how asphyxiation was achieved. 43 You have, as a result of application, been confined in protective custody. This can be terminated as a result of your own application. Whilst it is notorious that prisoners convicted of certain offences, especially those involving child victims, are in great danger in the general prison population, the killing of a spouse is not in any category bearing such notoriety. I do not regard your current circumstance of being in protective custody as a matter of any great weight. 44 Mr Benad reported that you have suffered depression since your wife's death. I note that he did not say that you suffered because of your wife's death. He opined that depression was associated with incarceration and he suspected that this would worsen with a lengthy period of imprisonment. I do not regard these opinions as matters which should result in a reduction of a sentence otherwise assessed. 45 I have concluded that this is not an appropriate case in which to depart from the standard non parole period. 46 I have also given consideration to assessment of a total term of imprisonment. My conclusion is that such a term as reflects the statutory non parole period and a balance term calculated in accordance with the statutory formula is appropriate to all the circumstances of your crime and your commission of it. 47 Pursuant to the statute I am first to set the non parole period and then a balance term which is not to exceed one third of the non parole period unless there are special circumstances. It was acknowledged by the Crown Prosecutor that there were matters capable to amounting to such special circumstances but it was submitted that departure from the statutory proportion was not, in this case, justified. My conclusion coincides with that of the Crown submission on this aspect. 48 I should, for completeness, record that I have given attention to matters which were also explored at the trial and sentencing hearings, including assertions that Nevine threatened to harm the unborn child, and that after his birth you would be deprived of his company, that there had been reportings to police including that one made by you concerning Nevine's alleged threats and behaviour, contretemps at the times of access visitation and your explanation for withdrawing your wife's visa sponsorship and your contention that she took out the AVO so as to inhibit deportation. 49 These and some of the events to which I have earlier referred disclose unsavoury aspects of marital squabbles but they should not divert attention from the fundamental issue of your culpability for effectively rendering your wife defenceless by attacking her with the bottle and then deliberately killing her. 50 On 5 May last a victim impact statement on behalf of Nevine's family made by her brother and read to the court in English translation was read by Mr Guirgis. The content is a graphic description of the effects of your crime on that family. As required by statute I record an acknowledgement of receipt of that statement. 51 Ashraf Mencarious, for the murder of Nevine Youssef you are sentenced to imprisonment consisting of a non parole period of twenty years commencing on 15 December 2004 and expiring on 14 December 2024 with a balance term of six years and eight months commencing on 15 December 2024. 52 The earliest date of eligibility for parole is specified as 14 December 2024. **********