Regina v Jalaty [2006] NSWSC 675

New South Wales Supreme Court

CITATION : Regina v Jalaty [2006] NSWSC 675

HEARING DATE(S) : 13/02/06 - 09/03/06 inclusive

JUDGMENT DATE : 30 June 2006

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : SENTENCE IMPOSED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - MURDER - ADMINISTER NOXIOUS THING SO AS TO ENDANGER LIFE - SENTENCE FOLLOWING TRIAL AND CONVICTION

PARTIES : Regina v Margaret Jalaty

FILE NUMBER(S) : SC 2005/1145

COUNSEL : C. Maxwell QC (Crown) P. Lavac with M. Licha (Prisoner)

SOLICITORS : Solicitor Public Prosecutions (Crown) Thurai Rajah Lawyers (Prisoner)

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

MICHAEL GROVE J

Friday 30 June 2006

2005/1145 - REGINA v MARGARET JALATY

SENTENCE

1 HIS HONOUR: Margaret Jalaty, you have been found guilty by a jury of the crimes of murder and maliciously administering a noxious thing so as to endanger life. The victim of both crimes was your daughter who is named in the indictment as Alia Maarbani but who was also frequently called Talia. 2 You are not willing to acknowledge your guilt and have continued to maintain that Talia accessed and ingested the methadone herself or, on the fatal occasion, it may have been given to her by a man named Jason Riggs. Those propositions were advanced at trial and were obviously rejected by the jury who were equally obviously satisfied that your guilt had been proved beyond reasonable doubt on both counts. It is necessary for me to make findings to the same standard, not inconsistent with your guilt for the purpose of sentence. 3 In chronological order, your first crime was administering methadone so as to endanger the child's life. In 1998 you had been involved in a motor car accident in which a vehicle was struck from behind and you suffered injury with consequent symptoms of a high level of back pain. For relief of this pain you were medically treated with pethidine and later with morphine. You became addicted to these narcotics. I accept that your encounter with these drugs emerged out of what might seem to be unusual treatment for the symptoms of which you complained but that it was not a result of your seeking drugs for recreational or illicit purposes. It was in recognition of your addiction that you were eventually placed on a methadone programme. 4 Methadone was made available to you through a pharmacy at which you were registered. You obtained it in two ways. Either you ingested a dose at the pharmacy in an area which was set aside for such purpose or you were given "takeaway" doses in sealed bottles. As a result of the latter procedure you had methadone in your home. I am satisfied that you did not follow the prescribed routine of ingestion and this resulted in your having accumulated quantities of drugs stored in your home. 5 Talia was born on 21 October 1999 and as at August 2003 she was aged about three years and ten months. 6 There were concerns about her development and behaviour and a drug known as catapres or clonodine was prescribed by a doctor at Sydney Children's Hospital, Randwick. Later you took her to see Dr McCahon, a paediatrician at the Children's Hospital, Westmead, where she had been admitted for tests which established that Talia was taking clonodine. I find that, after the tests at Westmead on 29 June 2003 Talia was in accordance with Dr McCahon's medical advice taken off the clonodine. I expressly reject your contradictory evidence that you were obtaining a supply from a doctor in Bankstown. 7 It is not necessary for me to detail the disputes which you claim you had with staff at Westmead Hospital and specifically with Dr McCahon, but I should record that I accept Dr McCahon as a witness of truth, who was obviously very concerned about the welfare of your child. 8 You and Talia kept an appointment with Dr McCahon on 22 August 2003 and I accept her evidence that Talia was neurologically improved when examined on this occasion and that Dr McCahon correctly diagnosed this improvement as resulting from her having ceased taking clonodine. 9 Two days later on 25 August Talia was presented at Bankstown Hospital in cardiac respiratory arrest. She was transferred to Sydney Children's Hospital and successfully treated. A urine sample taken that day was later analysed and proved positive to methadone and its metabolite. 10 You had given the child methadone as you ultimately confessed to police. I do not accept your suggestions that Talia obtained methadone by drinking the residue of a discarded bottle which you had not fully taken yourself. This action of yours gave rise to the count for maliciously administering a noxious thing so as to endanger life. 11 It is convenient to record at this point that I reject your assertions that the interview with Detectives Stamoulis and Karras which commenced at 11.59 am on 15 December 2004 reflected false admissions which you made because of threats by them or some sort of "deal" concerning sentence. 12 After it was established that Talia's condition in August was caused by methadone intoxication or poisoning, Dr Williams at the Randwick Hospital told you that ingestion of methadone by a child like Talia was life threatening. On your own evidence at trial you agreed that you listened very carefully to him when he told you how dangerous methadone was for a child and you added in your testimony that, before Dr Williams told you these things, you knew that even a small amount of methadone would be dangerous and you expressly said "If it was to be given to a child, yes they would die". 13 Although possessed of this knowledge, on 23 November 2003, by which time Talia was aged about four years and two months, you again administered methadone to her. 14 Overnight on this occasion the man, Jason Riggs, was a guest at your flat. A considerable time at trial was occupied in detailing the events surrounding your relationship with him and the events of that night. I will not pause to recite this detail, save to note that the evidence of your emergence wearing the night attire described offered a fairly plain indication of your desires and intentions. It was incumbent on the Crown to negative the possibility that this man may have administered the drug to the child, as indeed the Crown was required to negative the possibility that she ingested it herself. 15 Necessarily the jury found and I am satisfied beyond reasonable doubt that it was you who gave Talia this methadone also, as you eventually admitted to police. Although I do not accept all of the embroidered assertions which accompany the inculpating admissions that you ultimately made, I accept that you wanted Talia to cease to be a potential source of interruption to your interaction with your guest and, in that sense, you wanted to put her to sleep, as you said at one point in the police interview. However, as you testified, you appreciated the probable fatal consequence of giving methadone to a child of her age but you determined so to do, and did so, regardless of the likelihood of death. 16 As my findings imply, I reject the arguments advanced that it was possible that Jason Riggs had anything to do with the administration of methadone to the child and I also reject the suggestions that he had entered the child's room for some criminal or improper purpose or that he had in fact entered the child's room in the flat. The circumstance that crime scene police obtained a presumptive response to testing a stain on the floor which was positive for semen among other possible substances does not establish anything inculpatory of Mr Riggs. 17 Shortly stated, the critical facts are that in August 2003 you gave methadone to Talia which endangered her life. In November 2003 you again gave her methadone knowing at that time of the likelihood that it would be fatal as, tragically, it was. 18 I turn to deal with other matters including subjective considerations. 19 You were born on 17 September 1972, the youngest of nine children. I accept that the family circumstances were strict and you were generally unhappy. I have read the personal history which you gave to Ms Carney and to Dr Tran and Miss Stapleton of the Probation and Parole Service. It is plain that your life has passed through much tumult. I have no doubt that, as described, your being despatched to Lebanon for the purpose of marriage, culminating in two imposed and virtually sham marriages were painful ordeals leaving understandable scars in your thought processes. 20 After return to Australia you were injured in the motor vehicle accident which led to the narcotic dependency abovementioned. 21 You met Talia's father Michael and by reason of differences in his and your family's religion, your family for the most part, isolated you and you were to a significant extent shunned. Your partner did not want the child but you rejected his proposal to terminate the pregnancy. For many years you had been told that successful childbearing was medically unlikely and in due course Talia was born and it was frequently stated that you regarded her as your "miracle baby". 22 I am conscious that even after conviction you continued to proclaim your love of Talia but this is contradicted by your treatment of her. Despite the paradoxes implicit in your proclamations on the one hand, and your proven conduct in August and November 2003 on the other, I proceed to sentence on the basis of your proven guilt of the crimes charged. 23 I have concluded that in August 2003 you probably gave the methadone to Talia, knowing it was dangerous but intending, perhaps experimentally, to see if it would affect her levels of hyperactivity and/or insomnia. I am satisfied that you were conscious of your wrongdoing and this was subsequently evidenced by your failure to give an honest history to Dr Williams and further, after the detection of the methadone by the urine screen, your false statement to him that you could not provide any explanation as to how it came to be in Talia's body. It is since that attempt at deception that you have advanced the theory that Talia must have retrieved a bottle from a disposal bin which you had not fully emptied. I have already indicated that I reject that suggestion. 24 In November 2003 and beforehand I believe you had become extremely lonely to the point where you had made contact with Jason Riggs through Lava Life, which I understand to be some kind of introduction agency. After being put in touch with each other, you had extremely long telephone conversations and, after some false starts you actually met on the particular evening and this was probably perceived by you as a chance to remedy your feelings of isolation. It is probable, I consider, that your fatal administration of methadone was done to prevent Talia spoiling that perceived chance. 25 I reiterate that these just mentioned conclusions are not matters of which I am satisfied beyond reasonable doubt but I record them in your interests as against the alternative that, absent any explanation, it would be necessary to proceed to sentence simply on the basis that on successive occasions you first gave an innocent child a nearly lethal dose of methadone and thereafter on a second administration, a lethal dose of it, the potential of which probably to kill you were well aware. 26 Even on the basis of the more favourable alternative you bear a considerable weight of culpability. I do not approach sentence on the rather hyperbolic approach suggested by Ms Carney at the end of her report that "the length of time that she spends in prison will be negligible in comparison with the pain and sense of hopelessness she experiences or will experience when she becomes fully cognizant about the loss of her precious daughter" but I do so on the basis that your behaviour should be judged in the light of acute loneliness from which you were suffering. "Loneliness" is an inadequate word and I comprehend within it all the background miseries which had affected your life beforehand. 27 Ms Carney's observation just quoted would seem to ignore entirely the circumstance that your actions killed the child. Whilst I have examined the psychological and psychiatric reports which have been tendered, they are of diminished utility because each expert had to form opinions in the circumstance that you denied any culpability indeed you continue to deny that you ever gave methadone to Talia. 28 Although Ms Carney's report, as well as the reports of Dr Tran and Ms Stapleton are before the Court by consent, it is necessary to examine some of the statements therein with caution. For example, Ms Carney asserts that you told her that your guilt feelings relate to your inability to protect your daughter from danger but this is in effect simply a repetition of your unwillingness to admit guilt and is somewhat inconsistent with Ms Carney's own description of scoring the clinical personality dimensions which, under the title of guilt and resentment, she recorded "this aspect of depression is associated with the belief of having committed an unpardonable act and experiencing the utter worthlessness that follows". 29 A belief of having committed an unpardonable act does not conform with an assertion that guilt is being felt for being unable to protect the child. 30 You have some prior convictions, the pattern of which shows that it was associated with the narcotic addiction, for which addiction I have said you should not be regarded as blameworthy. I do not consider that your prior convictions should have any effect adverse to you in sentence assessment and in particular it should not deprive you of any lenience which might otherwise be afforded to you. 31 You still complain of chronic back pain and to the extent that you so suffer, your custody will be the more onerous than it would be if you were in good health. I take that circumstance into account in your favour. 32 I have indicated my conclusions as to probable motivation and whether I am correct about them or not, there is no reason to consider that you represent a danger to anyone in the future and in that sense I hold that your prospects for rehabilitation are favourable. 33 In the absence of any acknowledgment of guilt I cannot, however, find that you are contrite or in any real sense remorseful. 34 I should deal with some specific submissions by your counsel. I reject the proposition that because Talia was refusing to settle down or sleep on the November night that this amounted to provocative conduct on her part. 35 I note that you have been in protective custody and that the nature of your offences involving a child victim makes it likely that this will extend over a long period and possibly for the whole of your time in custody. I accept your evidence about the restriction of activity, as I accept your explanation of the apparent contradiction in the documents concerning this matter which I raised during the sentence hearing. Custody in protection is likely to be less advantageous than custody in the general prison population and that is again a matter which I take into account as an ameliorating factor in assessment. 36 It is convenient to record at this point your verification of the history in particular that which you gave to Ms Carney, and the acknowledgment by the Crown that there would be no challenge arising from the circumstance that detail given to her does not appear in the pre sentence report by Ms Stapleton and the report of Dr Tran. I act upon the background history as recorded by Ms Carney. 37 I have made some earlier reference to matters of history but the fact that I have not recited everything that appears in Ms Carney's report does not indicate that I do not take into account matters of suffering and constant misfortune which she had recorded which include isolation, rejection, molestation by an adult, rape by schoolboys when you were a schoolgirl and the disastrous marriages in Lebanon, which were apparently arranged by members of your family, who had conceived an idea that the consequences of the rape would diminish your prospects of marriage otherwise. 38 These remarks are principally directed to you in explanation of matters which I have taken into account in sentence assessment. I have tried to avoid what might be seen to be some sort of lecture on matters of law but it is necessary to deal with one such issue by reason of a direct statutory applicability. This relates to the sentence to be imposed for the offence of murder. 39 I should explain to you that an Act of Parliament requires me to first set a non parole period, that is the minimum period in which you must be kept in detention. The Act of Parliament also provides that I am to set what is called the standard non parole period unless I determine otherwise and if I do, I am to record my reasons for so doing, identifying each factor that I have taken into account. 40 The applicable prescribed standard non parole period for murder is imprisonment for twenty years. This is said to represent the non parole period for an offence in the middle of the range of objective seriousness. There is in fact a higher prescribed period for murders involving victims who were when slain exercising particular offices, but it is of no relevance to your circumstances. 41 I have concluded that I should depart from the standard non parole period in your favour. I do not understand the statutory obligation cast on me to identify each factor as requiring the incantation of a litany of such factors and separately weighting them and I can comply with the necessity for identification by a statement of reasons. Sentence assessment, you should understand is fundamentally to be derived from an intuitive synthesis of multiple factors, some of which tend towards lengthening of sentence and others towards reduction. 42 A submission by your counsel initially contending that in any case murder as a result of reckless indifference to human life is lower in the scale of seriousness than murder by intention to kill or do grievous bodily harm was modified to contend that, in this particular case, a lower proportion of blameworthiness should be found. The issue is important and as I have said I need to assess whether, other considerations apart, the murder committed by you lies in the middle of the range of objective seriousness for such offence. 43 In a written outline of submissions the Deputy Senior Crown Prosecutor has fairly stated that "often in this kind of case the offender would be convicted of manslaughter". In general terms, the statement implies a recognition of the practical difficulty of proving that an alleged offender knew of the probability of death of the victim, as distinct from knowing of danger or likely serious injury which is insufficient to prove murder but would sustain manslaughter. In this case, the Crown had evidence of what you had been told by Dr Williams in August and information that you would have accessed during your own treatment with methadone from the pharmacy and elsewhere. Even so, a verdict of manslaughter would not have been, if that had been the extent of the evidence, surprising. However, you unequivocally testified as your relevant knowledge of the likelihood of death if methadone were given to a child and the real central issue for determination at trial was whether it had simply been proved that you were the one who had given the child the drug. As the Crown Prosecutor continued in his outline, if the jury were satisfied that you were the one who gave the methadone, a verdict of guilty of murder was almost inevitable, but he added "in such a situation it might be argued that to apply the standard non parole period would be too harsh". 44 The objective facts on the count of murder are that you gave this lethal substance to a child knowing that her death would probably result. I would assess that to lie within the middle of the range of objective seriousness for such offence. In so saying I bear in mind that culpability for murder can range from killing in the heat of a moment's passion which could lie towards the lower extreme and cold blooded contract killing which could lie towards an upper extreme. As a matter of objective assessment your crime lies at neither extreme and I have categorized it as stated. 45 Nevertheless, before applying the standard non parole period it is open to take other matters, including subjective matters, into account. I have adverted to your probable motive and, without seeking to over dramatise the situation, I consider that your actions were provoked by a desperate attempt to seize an opportunity of forming some relationship with the man whom you had contacted through the introduction agency. Given the history of your isolation, disastrous arranged marriages, abandonment by Talia's father, shunning by most of your family, abuse which you had suffered in the past, continued suffering of accident induced pain, addiction arising from prescription of narcotics, and perceptions of a likely lonely future, I consider you had become vulnerable to succumbing to performing what Ms Carney accurately described as "an unpardonable act". 46 The matters which I have mentioned would combine in what I would call elements of motive and mental state and that combination leads me to conclude that this is not an appropriate case to implement the standard non parole period. 47 I do not overlook the independent seriousness of the offence of administering the methadone so as to endanger life which was committed some months before the murder. The Crown Prosecutor did not submit that cumulation was necessary but in the event that the sentences were to be served concurrently, he correctly contended that the totality principle would require reflection in the encompassing term of sentence. 48 After setting first the non parole period the Act of Parliament that I have mentioned specifies that the balance of term is not to exceed one third of the non parole period unless there are special circumstances for so doing. Although there are matters which are capable of being so categorized, I have come to the conclusion that in this case it is appropriate to adhere to the statutory formula. I am not obliged to give reasons for adhering to it, but I state that in my assessment the interests applicable to you will be appropriately met by the sentences which I now impose. 49 While in your particular circumstances it has been necessary to elaborate to an extent on matters that can be taken into account in mitigation and to observe your continuing denial of responsibility, you must be punished for your actions which first endangered and then killed a defenceless child who was entitled to look to you as her primary source of protection. Children are among the most vulnerable members of society and the life of every one of them is precious and the community would rightly expect that someone such as you, who has criminally taken such a life, receive just and necessarily significant punishment. Your own actions condemn you and the sentence which I impose must be adequate to denounce your actions as well as fulfilling other applicable principles of sentence assessment. 50 Margaret Jalaty, for the murder of Alia Maarbani, you are sentenced to imprisonment consisting of a non parole period of fifteen years to commence on 15 December 2004 and expire on 14 December 2019, with a balance term of five years commencing on 15 December 2019. 51 For maliciously administering a noxious thing to Alia Maarbani, so as to endanger her life, you are sentenced to imprisonment for five years commencing on 15 December 2004 and expiring on 14 December 2009. 52 Those sentences will be served concurrently. 53 I set no non parole period in respect of the latter sentence as it will be fully subsumed within the non parole period of the former sentence. 54 The earliest date of eligibility for consideration of release to parole is specified as 14 December 2019. **********