Supreme Court New South Wales Medium Neutral Citation: R v Katherine Abdallah (No 6) [2018] NSWSC 729 Hearing dates: 23 March 2018 Date of orders: 22 May 2018 Decision date: 22 May 2018 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: The offender is sentenced to imprisonment comprising a non-parole period of 6 years and 9 months and a balance of term of the sentence of 2 years and 3 months. The total term of imprisonment is 9 years. ADDENDUM – 25 MAY 2018 Pursuant to s 47 of the Crimes (Sentencing Procedure) Act the following amendment is made. The offender was first taken into custody on 10 February 2013. She has served 972 days in custody and has been at liberty for 955 days between that date and this sentencing date. Given those circumstances, it is appropriate that I start her sentence on 23 September 2015. Catchwords: SENTENCE – manslaughter – verdict of guilty after trial - unlawful and dangerous act – single stab causing death – offence captured on CCTV – self-defence rejected by jury – whether remorseful Legislation Cited: Crimes Act 1900 (NSW) s 24 Crimes (Sentencing Procedure) Act 1999 ss 10, 21A Cases Cited: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 R v Lavender (2005) 222 CLR 67; 155 A Crim R 458; [2005] HCA 37 R v Olbrich (1999) 199 CLR 270; 103 A Crim R 149; [1999] HCA 54 Weininger v R (2003) 212 CLR 629; 140 A Crim R 184; [2003] HCA 14 Category: Principal judgment Parties: Regina (Crown) Katherine Abdallah (Offender) Representation: Counsel: J Bowers (Crown) G Stanton (Offender) Solicitors: Director of Public Prosecutions (Crown) Bannisters Lawyers (Offender) File Number(s): 2013/40978 Judgment Introduction 1. On 4 December 2017, following a trial by jury, Katherine Abdallah was convicted of the manslaughter of Suzie Sarkis. Suzie was the offender's younger cousin. This terrible crime has torn the family apart. 2. Suzie's sister Christine and her mother Mary provided victim impact statements that speak of a betrayal that has broken their family. 3. Christine spoke of the horror of her sister dying at the hand of someone she thought was her friend. Christine described how the offender would say, "Suzie is my baby sister. I have no sisters. You girls are my family, I love you". Christine spoke of how the family cannot talk about Suzie's death because of the way it happened. It took away the family's affection, laughter and happiness. 4. Suzie's mother Mary spoke of living in a nightmare, waking up feeling pain and despair with her heart shattering into a million pieces. She describes that the family is living in denial and never speak of how Suzie died because it is too distressing and confronting. She described that as a mother she will never accept or understand how her daughter died – a girl who she described as full of life, soft-hearted, lovable, caring, kind and generous with a beautiful smile, who laughed all the time, was talkative and would chat to anyone. 5. She spoke of losing her sense of trust and that it would almost be more tolerable if the person who killed her child was a stranger. 6. Suzie was only 21 years old and was her baby. 7. No parent ever wants to bury their child, and certainly the agony of losing a child in such a horrific way must be extremely difficult to bear. This Court, and I personally, convey condolences to Suzie's family for the loss of her life and the carnage caused to her family. Facts 1. Suzie Sarkis died on 9 February 2013 as a result of a stab wound to her chest. The stab wound was inflicted by the offender just prior to 6pm in the context of a physical fight between the two of them. The fight occurred in the townhouse occupied by the offender in which Suzie Sarkis was staying. 2. The fight, which proceeded for about 4 to 5 minutes, was almost entirely captured on CCTV footage from cameras that were situated in the living area of the townhouse. 3. The Crown case was that this fight was part of ongoing aggression on the part of offender who was annoyed and upset with Ms Sarkis for having taken her expensive, newly purchased luxury vehicle – a Mercedes C63 AMG – without her permission the night before, driving it at high speed, and damaging the front wheel. This occurred shortly before midnight on 8 February, and police were involved. 4. The following day, Ms Sarkis again took the offender's car without permission as well as the offender's mobile phone, left a note and disappeared. This led to a physical altercation on Crawford Rd at Brighton-le-Sands between the offender and Ms Sarkis which, on the Crown case, was another demonstration of the ongoing anger and aggression by the offender towards Ms Sarkis. 5. There are various sections of CCTV footage that were played to the jury showing activity in the townhouse on 9 February. 6. Footage taken between 5.51pm and just before 6.00pm shows the fight in which Suzie was stabbed. This footage proceeds for just under nine minutes. There is no sound on the footage. There is no evidence before the jury, or before me at the sentencing hearing, as to what was said. 7. There are some precise times at which key events occurred which I will refer to later. There was punching, hitting and kicking on the part of both women, during which the offender seemed to have the upper hand at some stages and Ms Sarkis seemed to have the upper hand at others. The physical fighting occupies less than 4 minutes. 8. At 5.59.42pm, the offender ran to the kitchen and took two large kitchen knives from a wooden block, one in each hand. The kitchen knives were 20 and 23 centimetres in length respectively. Ms Sarkis followed the offender to the entry of the kitchen. The CCTV footage shows the offender pushing the knife in her left hand towards Ms Sarkis and immediately after that, the knife in her right hand, on both occasions directing the knife towards the chest or upper body of Ms Sarkis. At this point, Ms Sarkis has her arms by her sides and moves away from the blades directed towards her. There is then what is described by the Crown as a "lunging" at Ms Sarkis a third time at 5.59.53pm, the offender using the knife in her left hand to stab Ms Sarkis in the right upper front chest, causing the fatal injury. 9. The Forensic Pathologist Dr Duflou gave evidence that the knife penetrated to a depth of seven to ten centimetres and punctured the right lung. 10. The charge was manslaughter by unlawful and dangerous act pursuant to s 18(1)(b) of the Crimes Act 1900; that is, a punishable homicide that does not amount to murder. 11. The sole issue at trial was whether the offender had acted in self-defence. 12. Because the jury found the offender guilty, it is clear that the jury rejected self-defence. I am required to sentence the offender on the basis that she had no lawful excuse for stabbing Ms Sarkis. The standard of proof and its relevance in the context of sentencing 1. As the sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been either agreed or have been established beyond reasonable doubt. If however there are circumstances which I propose to take into account in favour of an offender, it is sufficient that they be proved on the balance of probabilities. [1] There are other matters which can be taken into account in sentencing or which form part of the narrative which do not fall into either category. [2] 2. It is a matter for me as a sentencing judge to find the relevant facts consistently with the jury's verdict. [3] Facts 1. In February 2013, the offender lived in a townhouse at Moate Avenue, Brighton-le-Sands. Her younger cousin Suzie was staying with her at that time. Suzie was 21 years old. 2. At 11:10pm on 8 February 2013, police arrived at the townhouse where the offender lived. They told her that her car had been pulled over by police because the driver was speeding. The driver had damaged the wheels and left the scene in the car before police completed their enquiries. 3. There was evidence from the officer that the offender was frustrated and agitated and said words to the effect of, "She's going to be in serious trouble when I get her – you guys will probably get called back". 4. Whilst the Crown case was that the offender remained annoyed and upset with Ms Sarkis about this event, CCTV footage of Ms Sarkis' arrival home late that night after the police call shows Ms Sarkis arriving, stumbling and tired, with physical signs of possibly being intoxicated. The footage is timed at 12.07am. It appears that a discussion takes place between her and the offender but it does not appear on the footage to be one that includes any violence or any angry facial expressions or angry gesticulations. The offender adopts a crouching posture on the floor next to Ms Sarkis during the discussion. After the discussion, Ms Sarkis apparently goes to sleep on the lounge. 5. The following morning at about 9.43am, CCTV footage shows the offender indicating, by her body language and facial expressions, significant hostility towards Ms Sarkis. At about 9.44 am she blocks Ms Sarkis leaving the townhouse. At about 9.49 am the offender is shown to slap Ms Sarkis hard on the face after what seems to be an attempt by Ms Sarkis to take the offender's mobile phone from the couch beside her. 6. At about 9.54am, CCTV footage shows Ms Sarkis on the second floor of the apartment viciously kicking a door to a room in which the offender is located. This includes angrily bashing, kicking and taking running leaps at the door. She left after about 4 minutes of this behaviour. The offender opened the door and went downstairs and the two women returned to the room together. 7. Later, at about 1:32pm, Ms Sarkis took the offender's car and mobile phone. She left a note which was in evidence before the jury: I took car to get doc certificate and hit up Amy (prostitute) took ur phone call me from home number I'm so sorry Don't sit and justify [unclear] I'm not like the rest I love you unconditionally I respect you Katherine I really adore you With my whole heart Love Suzie 1. Ms Sarkis was retrieved from a tanning salon by Jack and George Ayash at about 3.17 pm. She had entered the tanning salon at 2.30 pm alone. She had failed to answer more than 20 calls and texts from the offender (using her home line) and from Jack and George Ayash trying to locate her and the vehicle, which was apparently needed for a wedding. 2. Just after 3.30pm there was a physical fight between the offender and Ms Sarkis on Crawford Rd, Brighton-le-Sands with the Ayash brothers present, although not participating. 3. There were a number of independent witnesses to this fight who gave evidence before the jury. I accept that all of these witnesses were doing their best to give a truthful account. I accept that no witness saw the altercation from start to finish. I accept the Crown's submission that the evidence in combination indicated that attention was drawn to the altercation by loud female screaming. The offender, who was a taller bigger woman was seen hitting Ms Sarkis who was described as a smaller younger woman, yelling and hitting her repeatedly. She was heard to say, "It's not my car, it's not my car" and was observed to hold Ms Sarkis on the ground in a headlock saying, "Do you like this? Is this how you like it?" 4. CCTV footage at the townhouse shows that at about 4.12pm, the Ayash brothers, the offender and Ms Sarkis were all back inside the townhouse. A makeshift ice pack was prepared by the offender and one of the Ayash brothers apparently for Ms Sarkis. 5. At about 5.11 pm Ms Sarkis rang her friend Mary Massih and complained to her that she was "getting bashed by Kat and Jack", and that they (Kat and Jack) had "gone halves in a car". She asked Ms Massih if she could come and pick her up. Ms Massih gave evidence that Ms Sarkis was distressed, upset and crying. Ms Massih's recollection, and to an extent her credibility, was subject to challenge in cross-examination. Ms Massih did not collect Ms Sarkis for reasons she explained in her evidence. I accept Ms Massih's evidence as truthful. 5.51pm CCTV footage 1. This footage commenced with the offender laying on the lounge and Ms Sarkis sitting some distance away on a chair at the dining room table. Phone records indicate that the landline (that is the phone that was near Ms Sarkis on the table) was used to make a number of (unanswered) calls to Ms Massih over the next few minutes. The footage shows Ms Sarkis using the phone a couple of times. 2. At 5.51.11pm there are angry gestures by the offender towards Ms Sarkis. The offender then lays down on the lounge again this time with a blanket across her knees and legs. At 5.53.35pm the offender jumps onto the lounge angrily gesticulating and saying things to Suzie. She walks around the room aggressively, then resumes her place on the lounge with the blanket across her as well as tissues that she has taken from the table near Ms Sarkis. There are clearly words spoken and possibly shouted but no physical contact. There may have been verbal abuse but I cannot make a finding that there was. I cannot make a finding about what Ms Sarkis was saying, if anything. It appears that two of them were having an argument, the content of which is not able to be known. The Crown submitted that it was to do with the car. It may be, but I cannot make a finding beyond reasonable doubt that it was about that, or confined to that subject only. 3. At 5.56pm, Ms Sarkis picks up a glass vase on the table and smashes it on the floor and scatters papers that were on the table onto the floor. The offender jumps up from the lounge from where she had been settled. 4. Ms Sarkis walks in the direction that is towards the front door. She has an item under her arm which appears possibly to be a makeup bag. The offender stands in front of her and hits her hard on the face with an angry expression apparently saying something, accompanied by aggressive, angry gestures. 5. At 5.56.55pm, Ms Sarkis then attacks the offender with physical force, punching, hitting and kicking the offender repeatedly, and standing over the offender who is, by this time, lying or crouching on the floor protecting her head with her arms. 6. At 5.58.34pm, Ms Sarkis throws the offender's mobile phone on the floor repeatedly. 7. The offender then fights back, pushing Ms Sarkis back into a chair, getting on top of her, and hitting her repeatedly. This includes hitting her around the head with a four-pack of cans of drink. For short periods during the fighting, the offender and Ms Sarkis go out of frame. 8. At 5.59.42pm, the offender runs away from Ms Sarkis, in a direction that is away from the front door of the townhouse and past the opening to the stairs which goes down to the garage. She enters the kitchen which opens onto the living area and picks up two large knives. Ms Sarkis moves towards the kitchen entrance and stands in front of the offender with her arms by her sides. This takes place in the space of about five seconds. 9. The Crown has described this position as "unarmed with both hands down by her sides, taking a couple of steps towards the offender". Counsel for the offender describes the position of Ms Sarkis as "taking a fighter's pose". I accept both descriptions can correctly describe what is shown on the footage at that point. 10. At 5.59.47 to 48 seconds, the offender is shown quickly pushing the knife in her left hand and then one in her right hand toward the upper body of Ms Sarkis. 11. At 5.59.53pm, she pushes the knife in her left hand thrusting forward again using her shoulder with her arm quickly fully extended, stabbing Ms Sarkis in the right front upper chest. She walks away from Ms Sarkis and resumes her seat on the lounge. Ms Sarkis stumbles and then falls to the ground. 12. The absence of sound on the CCTV footage means that the jury did not have the benefit of the content of any words spoken during this four minutes of physical fighting (if there were any words spoken). There is thus no clarity as to whether Ms Sarkis was attempting to leave the premises before this final fight, or some other discussion was taking place. 13. There is no doubt that the offender escalated the fight by moving to the kitchen, arming herself with not one, but two large knives. The offender could see that Ms Sarkis was unarmed. The offender was physically bigger than Ms Sarkis, although I have no evidence before me that assesses the respective strength of the two women. In the space of 5 to 6 seconds, the offender had pushed the two knives towards the upper body of Ms Sarkis three times, with the third making contact with Ms Sarkis' chest to a depth described by the forensic pathologist as seven to ten centimetres. 14. Self-defence was run hard at trial. The defence address to the jury articulated an interpretation of this footage supportive of the offender having acted in self-defence. 15. The jury must have rejected that analysis in the verdict they gave, because implicit in their verdict is a conclusion that the Crown had proven beyond reasonable doubt that the offender was not acting in self-defence. 16. The offender called 000. A compilation of the audio of the calls to emergency services and the CCTV footage shows the offender, obviously panicked, hysterically screaming and sobbing. When the operator asked what happened, the offender hung up. The operator called back straight away and what followed was the offender telling a series of lies as to what had occurred, saying that there had been a "bit of an accident" and giving a false statement that Ms Sarkis had been stabbed with a glass vase. The offender also misled the operator by confirming that she was helping Ms Sarkis, checking her breathing and other tasks but the footage shows that at the time the offender was saying these things, she was actually washing the knives and carefully spraying them with cleaning fluid and wiping them and replacing them in the knife block. Interspersed with these activities, she is shown to some extent to be attending to Ms Sarkis. 17. The offender told lies to Mr Armitage, the first ambulance officer to arrive on the scene, and also to police officers both at the scene and later at St George Police Station. The offender lied about what had happened, inventing a story that a friend of Ms Sarkis called Amy had fought with Ms Sarkis. She also lied about there being no CCTV in the premises. This was untrue as the CCTV had been fitted in the premises on about 29 January 2013. It was only after police found the footage and this was drawn to the offender's attention that she altered her version of events and said that she had acted in self-defence. Sentencing for manslaughter and the basis for the verdict 1. The maximum penalty is of considerable importance as a yardstick in sentencing. [4] The maximum term of imprisonment for manslaughter is 25 years. [5] There is no standard non-parole period. 2. It is well recognised that manslaughter can be committed in a wide variety of circumstances affecting culpability. Consequently, there is a substantial range in the sentences imposed for this offence. [6] 3. As stated by Adamson J: [7] The starting point for sentencing in such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he or she must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part. Particular regard must be had to the features referred to above relevant to the seriousness of the offence as well as any mitigating circumstances. Seriousness of the offending conduct 1. I have taken some care to outline the background to and facts of the offending and what was shown on the CCTV footage that was played to the jury in order to address the issue of the seriousness of the offending conduct. That footage showed a volatile relationship between the offender and Ms Sarkis which, on occasion, involved aggression on the part of both of them. 2. Evidence regarding the altercation on Crawford Road demonstrated a relationship where the offender was prepared to use physical violence to chastise, control and show her displeasure with Ms Sarkis' behaviour. 3. It was a significant escalation of events for the offender to move to the kitchen and collect two long, sharp knives in the context of a heightened and physically violent argument. She used those knives by pushing them towards Ms Sarkis in a way that threatened, dominated, and ultimately fatally wounded her. 4. I regard the offending as very serious, however I bear in mind the heightened circumstances and what seems to have been an impulsive act in resorting to accessing the knives. This stemmed more from a lack of self-control rather than any planning. The three jabs took place within 5 to 6 seconds. It is significant that Ms Sarkis followed the offender to the opening of the kitchen and was in the process of taking two steps forward towards the offender. It was not a case of the offender chasing Ms Sarkis with the knives. It is more complex than that. Ms Sarkis could have left the unit. She stayed and followed the offender to the kitchen and faced her. I emphasise that in providing that description, the jury found that the Crown had proven beyond reasonable doubt that the offender was not acting in self-defence. I am simply stating what is shown on the footage so that the circumstances of the offending is clear. 5. Having said that, it is clear on the footage that the offender directed the knives towards the chest area of Ms Sarkis. The third lunge that made contact with Ms Sarkis must have had significant force behind it given the penetrating wound to the depth of seven to ten centimetres. Aggravating features 1. As submitted by the Crown, that a weapon was used in the commission of the offence is a matter of aggravation. [8] 2. The offender was on a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act at the time, and this too is a matter of aggravation. [9] She also has a criminal record including two convictions for traffic offences. However, the Crown submitted that I should, for the purposes of formulating the sentence, treat the offender as having no significant record of prior convictions. [10] I accept that submission. 3. I am entitled pursuant to s 21A(2)(g) to take into account as an aggravating factor that the injury, emotional harm, loss or damage caused by the offence was substantial. I am of the view that I should take that into account in this case given, in particular, the victim impact statements from Mary and Christine Sarkis, Suzie's mother and sister. Mitigating factors 1. As stated in paragraph [57], I have taken into account that the offence was not part of a planned or organised criminal activity. I am not able to take into account that there was any provocation within the meaning of s 21A(3)(c) as there was no evidence before me on that issue and the assertions in the letter of the offender about that remain untested because she did not give evidence. 2. It is difficult to make a conclusion regarding prospects of rehabilitation. The Crown submitted that there is a lack of remorse and lack of insight shown by the offender because in her letter provided to the Court dated 20 March 2018, 4 months after the jury's verdict, she states "I have never been able to accept that my killing Suzie was criminal because I knew I acted in self-defence". The Crown submits that this failure to accept responsibility for her criminal actions is relevant to specific deterrence. 3. The offender does go on to say in her letter that this does not mean that she is not "wholeheartedly sorry every single day for taking the actions that I did for causing Suzie's death". She states that there is nothing she regrets more in her life. 4. This letter shows that the offender still has some internal conflict about her responsibility for her actions and does not indicate full acceptance of responsibility for her crime. However, I do accept that the offender is remorseful and sorry that she caused Ms Sarkis' death, and is sorry for the irreparable damage it has caused to Suzie's family. Subjective circumstances 1. The offender was born in 1981. She was 31 ½ at the time of offending, and is now almost 37 years old. 2. She has no significant record of prior convictions as conceded by the Crown. She has not behaved flawlessly in custody. There are a number of offences in custody including possess drug as recently as February 2018, possessing tobacco on three occasions, a number of unlawfully use phone, a couple of give false/misleading information, and one count of obstructing a corrections officer. 3. The most significant of these is the possession of a drug in February 2018. This is against a background of significant drug use issues in the past referred to in the offender's letter of apology, and a number of the character references. A report of Ms Jobberns, a counsellor who the offender consulted between November 2013 and March 2014 also refers to the offender's struggled with drug use. 4. There was a pre-sentence report prepared in 2015. This provides some family background and social circumstances. The offender was then and is now single with no dependents. She was, it is said, reared in a traditional Lebanese family and has two younger brothers. She is estranged from her brother Charbel. 5. When she was 21, her brother Charbel sustained life threatening injuries in a motor vehicle accident and had a very long time in hospital and has needed care and assistance. There is a suggestion this caused conflict and significant distress within the family. It appears that the offender's own drug use also caused family issues. 6. The pre-sentence report refers to benzodiazepine and cocaine abuse, which required admissions for treatment. There seems to be a conflict about the offender's history as discussions with the offender's brother, psychologist and psychiatrist for the purpose of the preparation of the pre-sentence report spoke of abuse of prescription medication, cocaine, cannabis and amphetamines from late adolescence, whereas the offender vigorously denied having used any drug other than benzodiazepine prior to 2010. 7. The pre-sentence report also referred to methamphetamine use after release on bail in June 2013 and relapse into use of this drug in 2014. There is a mention of a gambling addiction. There is again some conflict in histories between what the offender told the author of the pre-sentence report and what family, the psychologist and psychiatrists indicated about this issue. 8. All of these matters combine to make it difficult to reach any clear conclusion about the offender's prospects of rehabilitation. 9. There are letters from the offender's parents discussing the terrible effect of the killing of Suzie by the offender on their own family. A reference from her father indicated that after her release in February 2017, the offender worked hard for him for no remuneration. Her brother Kamil also spoke of the negative effects upon the family and the fear of reprisal and threats that had happened to the family after the offender was granted bail before the first trial. Time in custody 1. The offender has served 2 years and 8 months (that is 972 days), comprising time in custody bail refused, and as part of the sentence imposed upon her following the first trial. 2. There is nothing before me that would justify a finding pursuant to s 44 of the Crimes (Sentencing Procedure) Act adjusting the non-parole period to take into account special circumstances. Whilst it is clear that the offender would benefit from supervision and support upon her release from custody, I consider that no adjustment is required from the usual proportions to take that into account. Sentence 1. Katherine Abdallah, for the manslaughter of Suzie Sarkis, you are convicted. You are sentenced to a term of imprisonment comprising a non-parole period of 6 years and 9 months with a balance of term of the sentence of 2 years and 3 months. The total term of imprisonment is one of 9 years. 2. The sentence will date from 10 February 2013 but will take into account various periods when not in custody. You will become eligible to be released on parole after the non-parole period expires on 22 June 2022. The sentence of 9 years will expire on 22 September 2024. Addendum – 25 may 2018 1. Pursuant to s 47 of the Crimes (Sentencing Procedure) Act the following amendment is made. The offender was first taken into custody on 10 February 2013. She has served 972 days in custody and has been at liberty for 955 days between that date and this sentencing date. Given those circumstances, it is appropriate that I start her sentence on 23 September 2015. ********** Endnotes 1. R v Olbrich (1999) 199 CLR 270; 103 A Crim R 149; [1999] HCA 54 at [27]. 2. Weininger v R (2003) 212 CLR 629; 212 CLR 629; [2003] HCA 14 at [19]-[24]. 3. R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587. 4. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. 5. Crimes Act 1900 (NSW) s 24. 6. R v Lavender (2005) 222 CLR 67; 155 A Crim R 458; [2005] HCA 37 at [22]. 7. R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 at [44]. 8. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(c). 9. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(j). 10. Crimes (Sentencing Procedure) Act 1999 (NSW) 21A(3)(e). Amendments 25 May 2018 - Case title: Changed "(No 2)" to "(No 6)". Added addendum as paragraph [79]. 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