New South Wales Supreme Court CITATION : R v Zaro [2007] NSWSC 756 HEARING DATE(S) : 29/06/2007 JUDGMENT DATE : 13 July 2007 JUDGMENT OF : Howie J at 1 DECISION : The offender is sentenced to a non-parole period of 16 years 6 months to date from 18 April 2004 and to expire on 17 October 2020, the date upon which the offender will be eligible for release to parole. There is to be a balance of term of 5 years and 6 months to date from 18 October 2020 and to expire on 17 April 2026. CATCHWORDS : Criminal Law - Sentence - Conviction of murder after trial. LEGISLATION CITED : Crimes Act 1900 - s 23A CASES CITED : R v SY [2003] NSWCCA 291 R v Hearne [2001] NSWCCA 237, 124 A Crim R 438 PARTIES : Regina v Jalal Zaro FILE NUMBER(S) : SC 2005/1289 COUNSEL : A. Robertson - Crown G.D. Wendler/J.A. Dalzell - Offender SOLICITORS : S. Kavanagh - Crown Van Houten, Solicitors - Offender IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J FRIDAY 13 JULY 2007 2005/1289 REGINA v JALAL ZARO REMARKS ON SENTENCE 1 His Honour: On 24 May 2007 a jury convicted the offender of murder. The charge related to the fatal stabbing of an 18 year old man on 17 April 2004. 2 The ultimate issue argued before the jury was whether, at the time of the stabbing, the offender was mentally ill. Although there was a question raised as to whether the offender had the intent for murder because of intoxication by alcohol or drugs, it was ultimately accepted that the offender had acted at least with the intention of inflicting grievous bodily harm upon the deceased. There was also an issue left to the jury as to whether the offender should be found guilty of manslaughter by reason of the defence of substantial impairment but there was little evidence upon which the jury could have been persuaded that he was suffering from an abnormality of mind within s 23A of the Crimes Act once they put to one side the fact that the offender was intoxicated by alcohol or drugs as the section required them to do. 3 It is clear from the verdict that the jury was not satisfied on the balance of probabilities that the offender came within the scope of the defence of mental illness according to the M'Naghten rules. This was notwithstanding the evidence of a psychologist that he did and the quite bizarre nature of the killing and the offender's conduct immediately thereafter. 4 The offender claims to have no recollection of the events on the night of the stabbing. Initially his amnesia was as to the events at the deceased's home shortly before the stabbing but in evidence before the jury he said that he had no recollection of any event from about 2 April 2004 until he arrived in prison on remand. The history of the events surrounding the killing chiefly comes from a young man named Christopher who was present at the time of the stabbing. He gave a detailed account to police the next day. The interview was video recorded and it appears to be a highly reliable account. It was accepted as such by both the Crown and the defence during the trial. 5 At the time of the stabbing the deceased was living with his mother in a suburban home not far from where the offender lived with his family. The offender had just turned 18 years of age. The deceased and the offender had attended the same school together and were close friends. On a number of occasions one had slept at the home of the other, playing computer games or watching movies together. On one occasion the offender retrieved property of the deceased that had been taken by another person. There was no suggestion that there had ever been any unpleasantness between them, let alone enmity. 6 In April 2004 the offender was living with his parents, two elder brothers and a younger brother and sister. He had been involved in a somewhat strained relationship with a 16-year-old girl for a period of about a year. The offender and his girlfriend conversed mainly by telephone for a number of hours nearly every day, and formed a close attachment. The girl's parents did not permit her to have a boyfriend nor to go out at night. Therefore the relationship was kept secret from her parents. The two met chiefly on their way to, or from, school. On occasions when the offender was unable to contact her by telephone, he spoke to one of her friends named Susan, as a go-between to deliver messages from him to her. On 2 April 2004, the occasion of the offender's eighteenth birthday, the girlfriend attended the offender's home and gave him a silver bracelet as a birthday present. The two of them saw this as a very significant event in their relationship. 7 On the evening of 16 April 2004, at about 8.30pm the offender telephoned a friend and they agreed to meet. At approximately 9pm the offender and his older brother, Jamal, picked up the friend and drove to the deceased's home. Jamal left the offender and his friend there before continuing on his way to a nightclub. 8 Shortly after arriving at the deceased's home, the offender, his friend and the deceased walked to a nearby bottle shop. There they purchased a 750ml bottle of vodka and a 4.4 litre cask of white wine. Arrangements had previously been made for the group to meet up with two further friends, Christopher, aged 15, and his cousin Jonathon, aged 14. They did and the five then returned to the deceased's home to consume the alcohol that had been purchased. 9 They arrived back at about 9.30pm. The vodka was mixed with lemonade in a 3 litre plastic bottle. The group then sat in the lounge room, drank the vodka and wine, ate a pizza, played computer games and watched television. 10 At approximately 10.00pm the offender went alone into the deceased's bedroom so that he could ring Susan, as he was unable to contact his girlfriend. During the course of the conversation the offender told Susan that he wished his relationship would last forever. Susan replied that the girl's father would never accept him as he was from a different culture. The offender indicated that this did not worry him and he would take care of it. The telephone conversation between the offender and Susan lasted for about 40 minutes. He then returned to the lounge room where he remained until such time as the vodka, wine and pizza had been consumed. 11 At approximately 11pm the deceased, the offender's friend and Christopher returned to the hotel. The offender and Jonathon remained at the house playing computer games. The deceased purchased a second cask of wine and then returned home with Christopher. The offender's friend was feeling unwell and went home. 12 At about 11.30pm the offender's brother, Jamal, returned to the deceased's home where he played computer games and drank half a glass of wine. By this time all the vodka had been drunk. Jamal stayed for ten to fifteen minutes before leaving, saying that he would come back at about 3 am when the nightclub closed. 13 As the group continued to drink, the deceased started to become rowdy, throwing himself around and jumping on and falling over the couch. It appears that the deceased may have ripped the offender's shirt and was answering him back. At about midnight the offender again left the lounge room and went into the deceased's bedroom where he played on the computer and made further phone calls until about 1.30am. 14 When he returned to the lounge room, the offender appeared angry. He told the deceased to "Stop acting stupid" and slapped him a number of times. The deceased said to leave him alone. The offender then placed the deceased in a chokehold for a couple of minutes until Christopher and Jonathan pulled him off. He told them he was only joking and that they were not to worry. The deceased then went and showered. 15 When the deceased returned from the bathroom the offender started to slap him. He pushed the deceased onto a couch in the lounge room and held him down by placing his left knee on his throat. While he was doing this he punched the deceased in the thigh. 16 Christopher and Jonathan intervened and pulled the offender away. He told them to relax as he was joking. The deceased got up from the couch and said to the offender, "What's wrong with you, why are you doing this, I feel like I'm dying, you're killing me". The offender said, "I don't care" and pushed him into an area located behind the lounge room where he struck him to the ground. He then again placed the deceased into a chokehold and started to throttle him. 17 Christopher and Jonathon attempted to pull the offender off but he pushed them away saying "leave me alone or I'll hit youse". They left the house and went into the front garden where Christopher tried unsuccessfully to telephone the offender's brother Jamal. The deceased was calling out for Christopher. 18 Christopher told Jonathon to remain at the front door while he went back into the house. The deceased was lying in a corner of the lounge room behind the front door. He did not appear to be breathing. Christopher said to the offender, "What's wrong with you, what did you do this for?" The offender said, "Who cares, my girlfriend dumped me, I'm sick of life, I want to kill myself". 19 Christopher followed the offender to the kitchen where the offender armed himself with a kitchen knife. Christopher asked him what he was doing. The offender replied that he was going to kill the deceased and then kill himself. Christopher tried unsuccessfully to take the knife away from him, but the offender warned, "Don't make me stab you". Christopher said he was going outside and intended to call the offender's brother. 20 Christopher walked to the front door, passing the deceased who now appeared to be breathing. The offender followed him to the front door and said, "Come here, come inside, I want to show you something". The offender dragged Christopher back inside. He then knelt down beside the deceased and, saying "Watch, this is how life is", stabbed him to the chest. Christopher grabbed Jonathan, pushing him out the front door, and they ran a short distance away from the house. 21 When they were about two houses away, they heard the deceased screaming and pleading for his life. The offender then walked out of the house carrying a knife and the remains of the second cask of wine. He had blood on his arms, one of his hands and the left sleeve of his shirt. Christopher said, "What did you do that for, you have ruined our lives". The offender replied, "I love youse, you know, I'd never do this to youse". 22 Christopher and Jonathan then walked away from the deceased's home with the offender following them a few meters behind. At one point, the offender buried the knife in the garden bed of an apartment block. The three continued until they reached the home of a friend of the offender, named Ahmet Nacakli. It was now about 2.30am. 23 There the offender washed the blood from his hands and arms under a tap located at the base of the apartment block. The offender whistled to get the attention of Ahmet who came out onto the balcony of the apartment. The offender said, "Come downstairs, I want to talk to you, it's very important". Christopher and Jonathan then left to go home. 24 Ahmet met the offender in the driveway in front of the apartment block. The offender said to him, "I've killed someone". They spoke together for a period of time and drank the remainder of the second cask of wine. At about 3am the offender phoned Susan and said, "Please call my baby girl and tell her that I stabbed someone". Susan asked who was the someone and he replied, "I stabbed my mate with a knife". 25 While this had been occurring the offender's brother Jamal returned to the deceased's home with three friends. The house was unlocked and the four men entered. There they saw the body of the deceased. One of the men checked to see if there was a pulse, but found none. The four then left the house in Jamal's car. He dropped two of the men off and Romeo stayed in the vehicle. 26 Eventually they drove to Ahmet's apartment where the offender and Ahmet were standing in the street. Jamal left the car and spoke with them. He asked, "Did you guys do it?" The offender denied it. Jamal said, "I know you did it because you guys were there and what's that stain on your shirt?" The offender then appeared to get angry and said to his brother, "Probably I did do it and what do you want now?" Jamal then drove him home. 27 The deceased's mother found the body of her son where he had been stabbed later that morning. The autopsy revealed that the deceased had been stabbed seven times to the chest. Two of the wounds tracked through the heart with a depth of about 15 cms. 28 At about 3.00pm that afternoon the offender telephoned Christopher and asked him if he was all right. He said that everything would be fine if Christopher lied to the police. Later at about 11.00pm that night, Christopher telephoned the offender and asked whether he was going to go to the police as he and Jonathan were "scared shitless." The offender said, "Just lie to the police and we'll get away with it." 29 At approximately 5.00pm the offender's brother, Jamal, went to the police station and informed them that he had information regarding the murder of the deceased. He admitted going to the deceased's residence with three male friends in the early hours of Saturday morning where they discovered the body of the deceased. He then participated in an interview with police telling them certain things that led to the issuing of a search warrant in relation to the offender's home. 30 At 1.30am the next morning the search warrant was executed. The offender was found at the premises and agreed to accompany the police to assist with their inquiries. At approximately 3.00am he participated in an electronically recorded interview with police at the conclusion of which he was arrested and charged with the murder of the deceased. 31 At the time of the police interview the offender claimed to be unaware that the deceased had been killed. He said that his recollection of the events of the night were vague. He could remember certain events, such as the persons who were present at the deceased's home and the events that had occurred up until around the time that the deceased and Christopher returned with the second cask of wine. But he claimed to have no memory of events thereafter. He said that he had no recollection of leaving the deceased's place or how he arrived home. 32 In evidence at the trial the offender admitted using cannabis and ecstasy on a recreational basis and Rohypnol in the period prior to the killing. He kept his drug taking secret from his family. He would also regularly consume alcohol from a bar in the family home. 33 In an account given to Dr Allnutt, a psychiatrist engaged by the defence and who first spoke to the offender on 9 April 2005 the offender said that prior to leaving to go to the deceased's home he smoked about 4 or 5 cones of cannabis and took an ecstasy tablet. He took a second tablet because the first had not produced any effect. At the deceased's home he felt too energised and took a Rohypnol pill to help him relax. He drank both vodka and wine. 34 The offender was born in Baghdad, Iraq on 2 April 1986 where he lived with his family until he was seven years of age. He remained with his family in Baghdad throughout the 1991 Gulf War and was witness to coalition attacks made on that city. In 1993 the offender and his family relocated to Jordan where they lived for a period of approximately six years. The offender's family immigrated to Australia in 1999 when the offender was aged 13 years. After completing several intensive English courses, the offender was enrolled in year 8 at St Albans high school. He left school early in 2004 by which time he was enrolled in year 11. 35 There are nine children in his family and he is the seventh eldest. He has no prior criminal record. He had a close relationship with his parents and siblings. He worked on occasions as a painter with a brother. There is nothing in his upbringing or relationship with his parents that appears of significance. There was some suggestion that the offender was suffering from post-traumatic stress disorder as a result of what he had witnessed in Baghdad. There is little to support that diagnosis. It is not one that was made by either of the psychiatrists that examined the offender. In any event it is of little significance. I doubt that his use of drugs had anything to do with his early life experiences. On his own evidence his use of ecstasy was for recreational purposes. There is no suggestion otherwise that he was suffering the effects of any personality disorder prior to the commission of the offence. 36 Of the three professionals who examined the offender, Dr Wong obtained the most reliable information from him. Although the offender appeared to be a poor historian particularly in giving evidence, Dr Wong was surprisingly successful in obtaining information from the offender. The jury clearly rejected the diagnosis of Associate Professor Woods and I was unimpressed by much of his evidence and opinions. Neither Dr Allnutt nor Dr Wong was able to diagnose any significant mental disorder in the offender either on the night of the stabbing or subsequently. Although Dr Allnutt expressed the view that the offender was vulnerable to psychosis, I do not understand how I should apply such a finding where, on his view, the offender did not suffer from a psychosis at the time of the stabbing or otherwise. 37 I appreciate that, notwithstanding the rejection of the defence of mental illness, it is still open to a sentencing judge to take into account any mental disorder from which the offender suffered at the time of the offence or at the date of sentence. However, I am not satisfied that the offender suffered from any mental abnormality at either date. It may be the case that the psychological test showed the offender to be below average intelligence but I doubt the reliability of them in relation to a person of the offender's upbringing and culture. But in any event I do not see the significance of his intellectual abilities in sentencing him for a brutal murder where he clearly intended to kill the deceased. I also accept that he was immature and this may have some impact on his reaction to the problems in his relationship with his girlfriend. In evidence she described him as over-reacting to situations and I believe this is a significant description of his personality for a consideration of what occurred on the night of the stabbing. 38 I doubt that the offender has no recollection of the events leading up to and including the stabbing. I accept that a person could as a result of the horrific nature of an event experience amnesia in relation to it. I also of course accept that a person might not have any recollection of what he did while heavily under the influence of alcohol and drugs. The difficulty in the present case is that before being arrested the offender twice told Christopher that they should lie to the police about the events. I can only infer that he knew at those times what had occurred. But it does not seem to me to matter whether he does recall or does not. To some degree the purported lack of memory did not assist his case. 39 I am prepared to accept that the offender was intoxicated by both alcohol and drugs. I believe that it was the effect of those substances upon him that principally caused him to act as he did. As I have indicated, I believe that he has some personality problems, one of which being immaturity. I think that he affected a certain persona with his close friends, particularly the deceased, of being a "fixer" and a "heavy". On a number of occasions the offender has referred to the assistance and protection he had afforded the deceased. He was a very well built young man who apparently when under the influence of alcohol used to like to show off his physique and strength. The deceased was of slight build. I believe that on this night the offender over-reacted to a concern about his relationship with his girlfriend. There is scant evidence about the phone calls he had made immediately before the violence occurred, but they brought about a change in his behaviour and he later indicated a belief that the relationship was over. 40 I believe that in his emotional turmoil and disappointment over what he perceived to be the end of his relationship, the offender became angry towards the deceased who did not show him or his personal problems sufficient respect. There is evidence in the report of Dr Wong that the offender was volatile and angered easily. There was mention by Christopher of the deceased being "silly" and "acting dumb" no doubt from the effects of alcohol. The offender told the deceased to stop acting stupid and that he was "embarrassing and stuff like that". He then started hitting him. He also described the deceased as talking back to the offender and comments "he had never answered back in his life to no one". Christopher said that this enraged the offender even more. The offender told Dr Wong that he was angered that the deceased grabbed him by the shirt near the neck. As a result of what the offender saw as provocative conduct by the deceased, he put a chokehold on the deceased clearly intending to hurt him. Thereafter I believe the offender used the deceased to vent his anger and frustration over the relationship no doubt fuelled by the effects of alcohol and drugs. I also believe there was a touch of histrionics about his action typical of the offender's over-reaction in bringing Christopher back to watch the killing and his statement, "This is how life is" and his threat to kill himself after killing the deceased. 41 I have no doubt that this behaviour was out of character and a result of alcohol, drugs and emotional turmoil. I do not believe that the offender is generally aggressive at least not with his friends. I do not accept that his use of drugs and alcohol was a matter of mitigation apart from indicating that it is relevant to consider his prospects of rehabilitation and to explain his behaviour. Although defence counsel put to me that I should treat his use of drugs as self-medication, I do not accept that such a submission significantly assists the offender: see R v SY [2003] NSWCCA 291. However, it is not an aggravating factor in that there is no evidence that the offender had ever before acted violently as a result of his ingestion of drugs and alcohol. 42 The Crown accepted that this was not a killing in the worst case of murder. It was not planned, it was not for gain and was committed while the offender's ordinary capacity for self control was disturbed by alcohol, drugs and the situation where he believed that his relationship with his girlfriend had come to an end. The Crown also pointed to the young age of the offender and his previous good record. 43 This is a case where the standard non-parole period provisions apply. The standard non-parole period is imprisonment for 20 years. There are a number of decisions of the Court of Criminal Appeal setting out the manner in which a sentencing court is to approach the standard non-parole provisions and I have attempted to comply with them. In my opinion the murder was above mid-range seriousness. This is notwithstanding the submission by the Crown that it was mid-range. The deceased was lying on the floor unable to defend himself after having been repeatedly assaulted by the offender. The offender had seriously tried to throttle the deceased at one stage having his foot on his throat. The attacks continued notwithstanding that the deceased had taken himself away to have a shower and the efforts of the other two youths to have the offender desist. Finally when the deceased was in no position to defend himself the offender obtained a knife for the express purpose of killing him and threatened Christopher against interfering. He then struck the deceased a number of blows with the knife. 44 Although there is a bizarre quality about the killing and the offender's conduct thereafter I am unable to see that this was because of some mental disorder except that caused by the ingestion of alcohol and drugs. In mitigation is principally the fact that prior to the killing the offender was a young man of generally good character and not prone to acts of serious violence. This was notwithstanding his disturbed background by reason of growing up in a war-affected area and his time as a refugee. He appeared to have overcome those setbacks. I also accept that he is contrite for the killing. He initially had difficulties coming to grips with what he had done once he had sobered sufficiently to come back to his senses. He has considerable difficulty expressing himself at least in English. The defence was conducted openly and by assisting the Crown in taking few objections to evidence and facilitated the course of the trial. 45 The major factor in reducing the non-parole period is his youth. He had only recently turned 18 years but was immature for his age especially in his relationship with his girlfriend and in the persona he liked to adopt amongst his male friends. I think that in the period leading up to the killing he may have become less reliant on his family and particularly his brother but was finding his own friends. I do not believe that this had anything at all to do with mental illness or the breakdown of his personality as Associate Professor Woods suggested. Rather he was simply establishing himself as many persons of his age do but this involved both alcohol and drug use. He was obsessed with his relationship with his girlfriend and was overly suspicious and jealous. Again I do not believe this was some symptom of a disordered mental state but was the sort of behaviour that might be expected in an immature young man forced to conduct the relationship at a distance and generally in secret. 46 The youth of an offender is always an important consideration notwithstanding the seriousness of the offending: see R v Hearne [2001] NSWCCA 237; 124 A Crim R 438. Of course the weight to be given to the factors that are derived from the youth of the offender will vary depending upon the nature of the crime and the circumstances in which it is committed. It has been said that less weight can be given to youth where the offender acts as an adult. A deliberate murder of a person unable to defend himself is hard to describe as the act of an adult rather than the act of an immature youth. I am satisfied that even though this was in some ways a wicked crime the basis of it was the immaturity of the offender in dealing with his personal relations when he was disinhibited by the effects of alcohol and drugs. 47 The Crown does not suggest that the offender presents any danger to the community. As I have already noted, he has no record for any offences at all, let alone crimes of violence. The fact that he does not in my view suffer from any significant mental disorder tends to favour his prospects of rehabilitation. In evidence he said that he was no longer seeking psychiatric assistances either by counselling or medication. In my view he is quite at liberty to take that stance without affecting his likelihood of re-offending. Matters such as rehabilitation and re-offending are perhaps less significant when dealing with a serious case of murder because the sentence must be so long simply to reflect aspects of denunciation and retribution in the taking of a human life. But as far as I can tell his prospects are as good as they might be when he is considering a lengthy period in gaol and release in middle life. Presumably he will mature in gaol simply by aging in such an environment. 48 He has been putting his time in custody to some use by his involvement in courses and religious studies. He of course has the support of his family both close and extended. No doubt they will attempt to keep in touch with him and permit him to be in touch with the outside world throughout his long period of imprisonment. At present he has no real plans for his time in prison but that is understandable. He is still coming to grips with the offence and has no clear idea of why he acted as he did. 49 The family of the deceased are of course still having difficulty coping with his death. It must be particularly difficult to do so when the deceased is a young man killed in such a violent and senseless way. I readily understand it must have been horrific to hear in detail from an eyewitness the manner of his death at the hands of a person who had been his friend and welcomed in his home. I can understand feelings of criticism of persons who were either present at the death or shortly thereafter. But the truth is that the deceased was beyond any help and was dead almost immediately after the stabbing. The young man Christopher has obviously been seriously affected by what he witnessed and was a quite pitiful character in his refusal to now recall those events. He was right when he told the offender that he had ruined his life. 50 The sentencing of a murderer such as the offender can never settle the score as it were. One often hears complaints that the sentence did not represent the value of the life of the deceased. But it never can. How does one value the life of a young man in the eyes of his family and friends? Retribution is only one of the many aspects of punishment even though it is a very significant one when the court is dealing with an offence where a human life has been taken. The Court understands and sympathises with the loss occasioned to the deceased's friends and family. But it cannot hope to replicate that in the punishment it inflicts on another young man and does not attempt to do so. I cannot impose a longer sentence because of the effect on others of the death of the deceased. 51 I can only ask those who grieve for the deceased to understand that the Court does not set out to destroy another young life in retaliation for what he has done even though it was a heartless, wicked and selfish act. I am conscious that however long the offender spends in prison he will still be able eventually to grow old in the community amongst his family and friends, an experience denied by him to the deceased. The Court can only endeavour to ensure that when he is released he can repay some of his debt by being then a worthwhile member of the community. 52 The factors relevant in sentencing a young man are usually given greater weight in setting the non-parole period. This is not to say that they are irrelevant in determining the whole sentence, but the Court can be more flexible when considering the period that the offender has to serve in order to prove he ought to be released back into the community. I have departed from the standard non-parole period because I have given considerable weight to the youth of the offender. There is nothing in the present case that disentitles him to the greatest allowance that can be made for his subjective factors notwithstanding that the objective circumstances of the offence was more than mid-range. To the contrary he is entitled to considerable allowance for the fact that other than for this offending he appears to have overcome his earlier difficulties and adapted well into this society. 53 There are matters that might amount to special circumstances. But the overall sentence in this case must be of such a length that the statutory relationship between the non-parole period and the balance of term will be adequate to address any needs he may have for counselling or assistance on release. I indicate that I have taken into account his youth in reducing the standard non-parole period notwithstanding the seriousness of the murder. 54 Mr Zaro, you are sentenced to a non-parole period of 16 years 6 months to date from 18 April 2004 and to expire on 17 October 2020, the date upon which you will be eligible for release to parole. There is to be a balance of term of 5 years and 6 months to date from 18 October 2020 and to expire on 17 April 2026. ********** 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.