R v Taha [2012] NSWSC 903

Supreme Court New South Wales

Medium Neutral Citation: R v Taha [2012] NSWSC 903 Hearing dates: 17, 21, 22, 23, 24, 28, 29, 30 November 2011; 5 April; 20 April, 25 May, 12 July 2012 Decision date: 03 August 2012 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Ferris Taha convicted of the murder of Khalil Bayani. Sentenced to a term of imprisonment, comprising a non parole period of 16 years, commencing 24 January 2009, expiring 23 January 2025, with a balance of term of 6 years, expiring 23 January 2031. Eligible for release on 24 January 2025 Cases Cited: Muldrock v The Queen [2001] HCA 39; Zreika v R [2012] NSWCCA 44 Category: Sentence Parties: Regina - (Crown) Ferris Taha - (Offender) Representation: Counsel M Hobart SC - (Crown) SW Wilkinson - (Offender) Solicitors S Kavanagh Solicitor for Public Prosecutions - (Crown) Rory Pettit - (Offender) File Number(s): 2009/137458

SENTENCE 1On 1 December 2011, the offender was convicted by a jury of the murder of Khalil Bayani. The jury arrived at that verdict after rejecting the possibility that he was acting in self defence. 2The offence carries a maximum penalty of life imprisonment and a standard non parole period of 20 years. 3The circumstances surrounding the offence were not substantially in dispute at trial. 4On the evening of 23 January 2009, Mr Bayani, then aged 22, was in the company of his girlfriend Miss Lodhi at a friend's home in Concord. At about 10:30 pm, Ms Lodhi received a call from the offender's girlfriend, Ms Le Ban, asking if she could be picked up. Ms Le Ban was collected and returned to the house where Mr Bayani and Ms Lodhi were watching DVDs. 5Shortly after midnight, Ms Le Ban spoke to the offender, asking when she could come to his place. The offender told her to stay at her mother's house because his friends were still at his home. The offender also told her that he was drunk. Ms Le Ban decided to stay at Ms Lodhi's home overnight. 6At about 2 am, Mr Bayani was driving to Ms Lodhi's home in Merrylands when Ms Le Ban received a call from the offender asking her where she was. She told him that she was in the car with Ms Lodhi and Mr Bayani. The offender hung up and then made another call, during which he told her that he was going to kill "that little gronk". The offender disputed this statement at trial, although he admitted that he was angry with Ms Le Ban for associating with Ms Lodhi. I accept that the offender did make such a statement. However, I am not prepared to find beyond reasonable doubt that it was evidence of the offender's intention at the time the statement was made or at any later time. Much of the offender's behaviour during these events displays a degree of aggressive posturing, of which this statement is typical. 7The offender then embarked upon a particularly serious course of conduct. He went into his bedroom, armed himself with a loaded firearm and a knife, and went out onto the verandah to wait for the arrival of Mr Bayani. He also armed himself with another knife which was kept on the verandah. He claimed during his evidence at trial that he intended to scare the occupants of the car. The offender's actions however went well beyond brandishing weapons towards Mr Bayani and Ms Lodhi. I am satisfied beyond reasonable doubt that the offender armed himself with the intention of resorting to the use of those weapons if he thought it necessary, given that he had determined to confront Mr Bayani. Tragically, that necessity arose when the offender realised Mr Bayani was not easily intimidated. 8Mr Bayani drove to the offender's premises in Cardigan St Auburn where Ms Le Ban directed him to stop outside a neighbour's house at number 14. The offender was standing by the letter box on the footpath outside his home. The offender walked at a fast pace towards the car, yelling at Ms Le Ban to go inside. Ms Le Ban said that the offender appeared "really angry". Ms Lodhi saw the offender holding a 60 cm long brown object which she believed to be a gun. Ms Le Ban walked to the house as directed. She turned to look at the offender and saw that he had a black handled knife in a green cover in the back of his pants. She recognized the knife as one that she had seen in his possession on prior occasions. 9The offender approached the front passenger door of the car where Ms Lodhi was seated and placed the rifle into the car, pointing it at Mr Bayani. Ms Lodhi saw the offender produce a knife. The offender leaned into the vehicle and made stabbing motions in the direction of Mr Bayani, saying "Why is my girlfriend in your car?" Ms Lodhi said "Calm down, he is my boyfriend. We picked her up because she had no place to go." The offender then made some derogatory racial remark. These events were also disputed by the offender at trial, but I am satisfied beyond reasonable doubt that they occurred, particularly given the offender's inability to remember much of what passed between himself and Mr Bayani. 10Ms Lodhi heard Mr Bayani say "Calm down, there are girls around. If you need to talk to me, we will do it somewhere else." The offender replied "I don't care, I'll shank you and your Mrs." Mr Bayani then got out of the driver's seat of the car and told the offender to put the gun down. The offender raised the gun and fired it into the air. Two neighbours heard noises consistent with gunshot at around 2:45 am. 11The offender's case at trial was that he fired the shot as a warning to Mr Bayani, who was at that time advancing towards him. The offender's evidence was that he was "freaking out" because he had not expected Mr Bayani, who was a much bigger man, to leave the car. I accept his evidence on this aspect of the matter. Given Mr Bayani's training as a security guard, it is probable that Mr Bayani was preoccupied with disarming the offender, and that he was prepared to physically engage with the offender in order to do so. 12The offender and Mr Bayani each traded blows to the head. Ms Lodhi tried to separate them without success. As they fought, the offender and Mr Bayani moved further along the path way towards the driveway of the offender's premises at number 12 Cardigan St. At this point Ms Lodhi saw Mr Bayani punching the offender. Another resident of the street also saw "the bigger man" pursuing the "smaller man" for some short distance, before both men returned the way they had come, this time with the offender in pursuit of Mr Bayani, making stabbing motions towards Mr Bayani's rib area. 13I am satisfied beyond reasonable doubt that this was the point in time when the offender, realising that the tables had turned and that he had picked a fight with a much more capable opponent, resolved to use one or both of the knives with the intention to inflict at least serious harm, rather than beat a hasty retreat. Mr Bayani stumbled backwards and fell to the roadway. He sustained a stab wound to the chest that penetrated the heart. There were four other relatively superficial wounds to the left side of the chest wall. 14The offender immediately ran towards the house, telling Ms Le Ban "I think I killed him". Ms Le Ban saw a cut to the offender's left forearm. The offender told her to tell the police that he was defending himself. 15When the police arrived shortly after 3 am, they approached the offender who was sitting on the footpath outside his home. In response to a police enquiry, the offender said "I hurt him. He had a knife, I had a knife. He came at me and wouldn't leave me alone so I stabbed him. Is he going to be okay?" This was a false statement, it being accepted at trial that Mr Bayani was unarmed. 16The offender was arrested, cautioned and taken into custody. The offender submitted to an interview solely on the basis that he would discuss his level of intoxication with the police. He declined to answer any other questions on legal advice. In the course of that interview the offender claimed that he had consumed a quantity of vodka over a period of one to two hours between 12 and 2 am that morning. It is clear from the jury's verdict that, whatever the offender's consumption of alcohol and cannabis, it was not considered sufficient to raise a doubt about the offender's intention to inflict at least serious bodily harm upon Mr Bayani. I accept that the offender was intoxicated to some degree, but it did no more than provide him with "dutch courage" in his confrontation with Mr Bayani. There was no suggestion in the evidence at trial that the offender's speech was slurred or that his motor skills were affected in any way throughout the events leading up to the murder. 17The objective gravity of the offence is in my view of a significant order. The offender's jealousy and possessiveness of his girlfriend triggered a sustained and grossly excessive display of anger towards her and two people, of whom he knew little, who were doing the offender's girlfriend a kindness in driving her to the offender's home. The offender took the conscious decision to arm himself with a loaded rifle and two knives, well before the arrival of the occupants of Mr Bayani's car. This was a premeditated and planned assault by the offender upon a total stranger, who was attempting to disarm the offender for the safety of others. 18As I have already noted, the evidence at trial and the jury's verdict support the finding that the offender first formed the intention to seriously injure Mr Bayani very shortly before the fatal wound was inflicted. That finding does not greatly assist the offender, in circumstances where his utterances and his conduct from the outset were inflammatory and flagrantly aggressive. 19There is much about the offender's general level of aggression that seems to defy explanation. Indeed, in an attempt to explain how a young man of 20 years of age with no prior criminal history could commit such an offence, the offender's case on sentence consisted of evidence from his mother and psychological evidence that sought to draw some link between the offender's cognitive abilities and his offending. 20Before turning to that evidence, I should observe that the question whether such matters may bear upon the assessment of the objective seriousness of an offence is yet to be resolved : Muldrock v The Queen [2001] HCA 39 ; Zreika v R [2012] NSWCCA 44. It is not necessary that I resolve that controversy. The offender's cognitive function is part of his subjective circumstances. It may reduce his moral culpability for the offence, it may reduce the role of general and/or specific deterrence in the sentencing exercise and it may render his term of imprisonment more onerous. Whether it does any or all of those things depends upon the nature and severity of the alleged condition. The point is that, provided that it is factored into the sentencing exercise, it allows for the imposition of a sentence that is commensurate with both objective and subjective circumstances. 21A report under the hand of Dr Susan Pulman became Exhibit 1 on sentence. Dr Pulman also gave evidence and was cross-examined by the Crown. Dr Pulman's report came about following a recommendation from Dr Allnutt, a forensic psychiatrist, that the applicant undergo neuropsychological assessment. Dr Allnutt was of the view that there was a possibility that the applicant had previously suffered a brain injury that affected his cognitive functioning at the time of his offending. Dr Pulman reviewed two reports by Dr Allnutt, prepared in December 2010 and March 2012 respectively for the purposes of the interview and testing procedures. Other psychological and psychiatric reports were also made available to Dr Pulman dating back to 2006, 2007, 2008 and 2009. None of these reports were in evidence for the purposes of sentence. 22The alleged brain injury was said to have arisen from one or both of two events in the offender's life. The offender and his mother reported a fight at a public swimming pool when the offender was 12 years of age. He was hit in the head and taken to Westmead Hospital for review. It is said that he suffered a concussion and was released after a period of observation. His mother's evidence was that his behaviour and academic performance declined following this event. The second occasion occurred in 2006 when the offender was 17 years of age. He became caught up in a fight at a rugby league game and was taken to Auburn hospital. He sustained a cut and bruising over his left eye and required four stitches. The offender did not apparently lose consciousness and was released from hospital after 24 hours. The offender's mother also reported apparent changes in his behaviour following this event. 23The offender was reviewed by a doctor on two occasions after the latter assault in 2006. Neurological examination was normal. A brain scan was also reported as normal. An EEG was reported as within normal limits. The cognitive deficits that were detected indicated organic brain damage which "very likely arose from the alleged assault in 2006." The second medical review concluded that the offender "sustained cerebral contusional injuries resulting in impairments of memory and concentration" as a result of the alleged assault in 2006. It was also considered possible that the offender had a pre-injury history of learning and attention deficits and that his memory impairment was likely to have increased as a result of the alleged assault. 24The offender lived in Lebanon between the ages of four and seven years where the standard of education was less than satisfactory. On his return to Australia he was placed in a remedial class. A psychological assessment conducted in December 2006 concluded that the offender was average in intelligence, although his non-verbal intellectual abilities indicated a level of "borderline intellectual handicap". The offender also demonstrated impairment of short-term memory, psychomotor slowness, visual spatial orientation disorder and impairment of planning ability with complex visual material and lack of clarity of thought. These cognitive deficits were also thought to indicate organic brain damage, most likely arising out of the alleged assault in 2006. 25In April 2008, the offender was examined by a psychiatrist. On this occasion, the psychiatrist rejected the suggestion that the offender's intellectual deficits were the result of brain damage from either of the earlier alleged assaults. The offender was said to be constitutionally intellectually impaired, although not mentally retarded. The offender's degree of social withdrawal (a form of social phobia) was "probably partly fostered by the family and partly as a response to the two assaults". The psychiatrist rejected the earlier opinions on the basis that they had not thoroughly evaluated the offender's pre-morbid intellectual difficulties. 26A further assessment by a forensic psychologist in April 2009 concluded that the offender's intelligence was consistent with the "mentally retarded range". However, no objective cognitive or intellectual testing was carried out. The offender was said to have "an acquired cognitive disability ........ resulting from an injury causing organic brain damage". 27Dr Allnutt's reports concluded that the offender displayed symptoms of anxiety consistent with a social phobia, a previous history of depression and a substance abuse disorder (cannabis). The offender presented with a reasonable capacity for insight and judgement. To the extent that there was some evidence to support a form of brain damage, Dr Allnutt was not able to conclusively state that such damage caused difficulties with cognitive functioning, behaviour and/or mood changes. 28Dr Pulman ultimately concluded that the offender's intellectual and cognitive functioning was below average. His verbal abilities fell within the borderline range although his non-verbal abilities were significantly and unusually higher, ranging from borderline/low average to average. His reading skills were particularly poor, consistent with his learning difficulties and disrupted early education. The offender's level of engagement in the testing administered by Dr Pulman fluctuated throughout the assessment. Dr Pulman's results differed markedly to those obtained in December 2006. Dr Pulman was unable to provide any explanation for this variation. 29Relevantly, Dr Pulman concluded that all of the reports provided to her, together with the results she obtained, suggested a below-average premorbid intellectual functioning and learning disorder. These deficits have been present throughout the offender's life and are not linked to the alleged assaults in 2001 and 2006. Dr Pulman considered that there was "at best, evidence to suggest a head injury of mild severity." The offender's neuropsychological profile was not entirely consistent with a head injury and, even if such deficits arose out of the assaults, they would have been short-term and would have resolved partially or completely by the end of 2007. Dr Pulman was unable to draw any connection between the offender's intellectual functioning and his offending. 30Taking all of these matters into account, I am of the view that the preponderance of the evidence establishes that the offender functions at a borderline to mild level of intelligence, unconnected with any assaults upon him, and that he has more than likely functioned at such a level for most of his life. There is no sound basis for a conclusion that his moral culpability for the offence is thereby reduced. His non verbal skills, including his conceptual reasoning and problem solving skills, were not, at the relevant time, so compromised that he could have failed to appreciate the consequences of mounting an assault upon another young man whilst armed with a number of potentially deadly weapons. 31The offender reports having a "short fuse" and experiences difficulty controlling his emotions. That much is evident from his behaviour on the night in question. Those particular character traits cannot in any way excuse or mitigate his offending ; they are, unfortunately, reasonably common attributes of violent offenders, particularly immature young men such as this offender. 32The prevalence of the cavalier resort to the use of weapons by young men, in order to resolve conflicts, even of a trivial nature, calls for some emphasis to be given to general deterrence. I am satisfied that specific deterrence plays an insignificant role. I expect the offender's years in custody will afford him the opportunity to modify his behaviour and develop his capacity to respond appropriately to external stressors. He has gone some way towards developing those insights into his behaviour. 33There is no evidence to indicate that the offender's term of imprisonment will be more harsh by reason of his level of intellectual functioning. No doubt, a lengthy custodial sentence weighs more heavily on youthful offenders than on mature men. The fact that this is the first time the offender has fallen foul of the law, and the necessity that he serve much of his early adult life behind bars, bear upon the relationship between the non parole period and the head sentence. I accept that his prospects of rehabilitation are sound. This factor, together with his youth, justifies a finding of special circumstances. 34The offender, presently 23 years of age, has the support of his three older siblings and his parents. The family appears close-knit, indeed to the point where the offender has been cosseted and indulged to a certain extent by his mother and other members of the family. The disruptions to his early education, consisting of several changes of schools (including the period spent in Lebanon) did not prevent the offender completing his secondary schooling up to year 10. However, the offender's high school years were characterised by poor behaviour and poor academic performance. The offender attended a welding course through TAFE for one year where he reportedly failed the theory but excelled in the practice components of the course. He has never undertaken employment and was in receipt of Centrelink payments leading up to his arrest. 35Taking all of these matters into account, I propose sentencing the offender as follows :- 36Ferris Taha, you are convicted of the murder of Khalil Bayani. I sentence you to a term of imprisonment, comprising a non parole period of 16 years, commencing 24 January 2009, expiring 23 January 2025, with a balance of term of 6 years, expiring 23 January 2031. You are eligible for release on 24 January 2025. 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. Decision last updated: 15 August 2012