The Queen v R B [2018] VSC 142 (29 March 2018)

Last Updated: 29 March 2018

AT MELBOURNE

CRIMINAL DIVISION

No. 2017 of 0051

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CRIMINAL LAW – Sentence – Murder – Plea of guilty – Serious violent offender - Victim tortured – Children witnessed offence – Whether motivated by Jihadist or extreme Islamic beliefs – Whether under a drug-induced psychosis at time of offending - Lack of remorse – Poor prospects of rehabilitation – Sentence of life imprisonment – Prosecution submit no non-parole period should be fixed - Considerations – Prisoner sentenced to life imprisonment with a minimum of 30 years – Sentencing Act 1991 (Vic) s 11.

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HIS HONOUR:

1 RB on 20 September 2017 you pleaded guilty to the murder of your wife TZ, a woman aged 27 years, and to whom you were married in 2008. You and she had three children together. The offence of murder was committed in the context of your prolonged and vicious attack on her on 17 June 2016. The killing was committed by you in the family home, in front of the three children who have obviously been traumatised by what they witnessed.

2 In the attack on TZ, you repeatedly and very seriously slashed and cut her face and body. As your children watched you removed her right eye from its socket and flushed it down the toilet. You also removed her left index finger and middle finger from her hand, inserting them in her vagina and anus respectively. TZ, suffered extensive injuries and lacerations to her face and body, and essentially bled to death. You later disposed of your wife’s body by dumping it in the middle of the night, also with your children present.

3 On 1, 6 and 18 December 2017, I heard a prosecution opening address, received victim impact statements, heard expert evidence, submissions on your behalf and also by the prosecutor as to the sentence that should be imposed on you. It is now my responsibility to sentence you for this terrible crime. The maximum penalty for murder is life imprisonment.

Background

4 Before describing the detail of the murder you committed, it is first appropriate to describe some of the background.

5 Your first contact with the deceased woman was in 2008, two months after she began a visit to Australia from Lebanon. A marriage between she and you was arranged and you were married within two weeks of that arrangement. As I have said, your marriage produced three children, who are now aged 8, 6 and 4 years.

6 Your marriage was characterised by your domination of your wife and physical and emotional violence that you inflicted on her and your children. You were, on the evidence, very controlling of her. You totally dominated her; dictating who she could see or have contact with, what clothes she could wear and what domestic work you required her to do.

7 In 2011 you took a second wife, RA, in a ceremony presided over by a local sheik. She and her young son moved into your family home. She was also the target of your domination, emotional abuse and physical assaults.

8 In the case of the deceased woman, your killing of her was the culmination of what is likely to have been months, if not years, of emotional abuse and the infliction of violence on her by you.

Circumstances of the offence

9 As I earlier noted, this offence was committed by you on 17 June 2016. On that day you were at your home at [redacted] with your wife and children. You attacked your wife in front of your three children with a knife; repeatedly slashing, stabbing and cutting her to her face and body. Two of your children RD and RM described you as having ‘slaughtered’ their mother.^[1] RD described you doing this by using a ‘big white knife’ and a ‘black knife’.^[2]

10 Those two children also witnessed you remove their mother’s eye and flush it down the toilet. RD described the removal of the eye, demonstrating in his VARE an action of slashing or cutting the face. RD also described the offender removing TZ’s fingers and placed one finger inside the deceased’s vagina and one in her anus. RD described in detail the numerous injuries to his mother, including to her face, body and genital area. He said, ‘The face – all of it cut – five – one two three four five six seven eight nine ten eleven’.^[3] RD described that there was blood everywhere, and that you later cleaned up the blood. RD described the attack occurring in the lounge room of the house with blood everywhere. He also stated that you later mopped up all of the blood with water. Later examination of the scene by police, revealed blood within the premises and the evidence of clean up and diluted blood.

11 After murdering your wife, you placed her body in the boot of your Toyota Corolla motor vehicle. You then drove to the grassland next to the Dallas tennis courts. Your three children were also present in the car. RD described sitting in the back of the car with RM and RK sitting in the front of the car. RD describes this occurring at night and, that it was at ‘the time of the moon’.^[4]

12 You had wrapped your wife’s body in a plastic wrap and a doona, and bound her with electrical tape. This wrapping of the deceased’s body was also witnessed and described by the oldest child, RD, who said you put a ‘wrap’ on his mother, ‘round and round’ with a ‘red black sticky thing’.^[5] When you arrived at the area where you wanted to leave your wife’s body, you removed it from the car and dumped it on the ground in open grassland near the Dallas tennis courts. This location is directly opposite the premises at 1 Colac Street, Dallas. I am informed this address is occupied by known associates of the offenders, the Benbrika family.

13 After leaving the deceased’s body near the Dallas tennis courts, you closed the boot of your car and sat on it looking at the body. RD said you seemed to be waiting to see ‘if Mummy got up’.^[6] You then drove to the Barry Road Bakery with your children and at 4.04 am, you purchased pastries for them using an ANZ Visa Debit card in the deceased’s name.

14 You then drove to a service station in Broadmeadows at 4.14 am, where you purchased two apple and raspberry drinks, another soft drink and other items. Again, this purchase was made using the debit card in the deceased’s name. You later used the same Visa Debit card in the deceased’s name in various other transactions.

15 Later on 17 June 2016, at about 1.10pm, the deceased’s body was discovered by a member of the public. Police were contacted, attended and located her body wrapped in a blanket, with electrical tape wrapped around the feet and ankles, above the knees, waist area, the chest, shoulder area and the face. Within the wrapping with the deceased, was a blue beanie, a brown beaded head scarf and two disposable gloves. Her upper body was wrapped in a clear cling wrap type plastic. The deceased was found to be wearing several layers of clothing, which were extensively blood-stained, with several cut marks to the fabric. Police noticed multiple lacerations to the head and face of the deceased but due to the extent of her injuries were unable to identify her gender.

16 Later that day a post mortem was conducted on the body of the deceased woman. The pathologist, Dr Heinrich Bouwer found a large number of injuries upon the deceased’s body, of differing ages. The deceased had numerous sharp force injuries to her face and body, and trauma to her teeth, including multiple fractures.

17 It is unknown whether the injuries were caused by one or several weapons. Dr Bouwer viewed several photographs, depicting a number of weapons that were retrieved from the property of the offender. Those weapons included knives, specifically a white handled knife, cleavers, an axe and a pair of scissors. Dr Bouwer opined that the morphology of the sharp force injuries could have been caused by many of the implements, or other similar implements.

18 Your wife had multiple sharp force injuries on the outside and inside of her genitalia, including a stab wound, and had seminal fluid inside her vagina. Her upper jaw was fractured, with the right cheek bone cut, the skull outer table cut, with fracture amputations of the index and middle fingers of the left hand. The severed fingers were located within the wrapping, and located with the deceased’s body. There was also evidence of blunt force trauma. There were recent rib fractures of the left 4th, 5th and 6th ribs, and bruising in the small bowel mesentery, suggestive of blunt force trauma delivered to the abdominal region.

19 In my opinion, a fair conclusion to be drawn from the evidence of Dr Bouwer is that your act of removing the deceased woman’s right eye occurred prior to her death,^[7] which is in itself a horrifying prospect. As to the severance of her fingers, that also may have been prior to her death or, at the latest, as her death was actually occurring. On this matter Dr Bouwer is less certain.^[8] As to the other injuries, Dr Bouwer found that many of the sharp force injuries on the arms, legs, head and torso ranged from well healed scars to scabbed sharp force injuries and were likely sustained days to weeks prior to death. Some of the sharp force injuries were likely sustained around the time of death, for example the incised injuries on the anterior upper neck, below the jaw, and the pubic region showed no evidence of healing or haemorrhage; which would have indicated they were inflicted prior to death.

20 In summary, the post mortem revealed multiple incised, stab and chopping-type injuries to the face and head of varying ages and stab wounds of various ages over the lower back and legs. The pathologist found the right eye enucleated and found old incised injuries to the legs and arms. There was amputation of the left hand index and middle fingers. There were multiple facial bone fractures. Dr Bouwer concluded that the cause of death was a consequence of multiple sharp force injuries. The mechanism of death is likely to have primarily been one of significant blood loss.

21 A registered specialist forensic odontologist also conducted an examination on the deceased woman. The damage she observed to her teeth was, in her opinion, most likely caused by multiple blunt force blows to the front, left and right hand sides of the mouth and chin with an object of some weight. A severe amount of force would be required to inflict this type of damage to the teeth, resulting in complete or partial crown fracture of the tooth structure. It is likely that the overlying sharp force wounds and fracturing of the teeth occurred at the same time.

22 On 4 July 2016 police attended at your home at [redacted] in relation to a welfare check of the three children. You were present and police observed all three of your children with recent injuries. You were arrested in relation to the assaults on your children. Your clothing was taken. You were interviewed both in relation to both the assaults on your children and the death of your wife. You exercised your right and made no comment to the allegations in relation to the children or your wife’s death. A buccal swab was taken from you as well as fingerprints and footprints.

23 Due to the nature and extent of the injuries the deceased sustained, she remained unidentified until 6 July 2016. On that date a DNA comparison was done with your children. For a time, the injuries you inflicted on her prevented even her gender from being identified as I have already noted.

24 As far as your children were concerned, your son RD had bruising across his entire face including his ears, cheeks, nose, the area around his eyes, lips and mouth. ‘Crusted blood was observed around his nostrils in association with peri-orbital and nasal bridge bruising’.^[9] The injuries are believed to be the result of blunt force trauma and likely to have been suffered during an assault. He also had bruising on his arms, suggestive of defensive wounds that might have been sustained if he had put his arms up to protect his head during the assault. He was also mildly to moderately dehydrated, and was iron deficient and microcytic anaemic. During his VARE interview, RD indicated that his injuries were the result of you assaulting him with a green milk crate.

25 Your son RM had extensive facial bruising including around the left eye, below the right eye, extensive bruising to the left cheek, nose, jaw and ears. There was crusted blood around his ears. He had swelling on the left side of his face indicating his injuries were suffered recently prior to police intervention. Whilst at the Royal Children’s Hospital, RM indicated his injuries were the result of you assaulting him.

26 Your daughter RK had burns to her left foot, likely to have been the result of direct contact between the skin and a hot object. She also had a bruise on her forehead, and a number of abrasions to her right eyebrow, left wrist, and left forearm. It is unknown if these bruises and abrasions were the result of accidental or inflicted trauma. She also had chronic skin inflammation in the nappy region, likely to be the result of having been left with urine or faeces in her nappy for a prolonged period.

27 Your three children were placed in the care of staff from the Department of Health and Human Services.

28 In another interview on 6 July 2016 you discussed your religious backgrounds with a police officer. You claimed that your country is at war with Australia. You seemed to go on to refuse to acknowledge that you had done anything wrong.

The Crime Scene

29 When police attended your premises at [redacted] on 4 July 2016, they observed the premises sparsely furnished with just a milk crate in the lounge room and mattresses in the bedrooms. The mattresses were urine soaked and filthy. There were smashed windows throughout the premises, scribble on the walls, bare floor boards, and shutters on the outside of the windows screwed down. They also observed a bungalow at the rear of the premises that appeared to have a door affixed to the outside which was required to be forced open. This was not the state of the house when previously inspected by the owner of the premises approximately six months prior to this incident.

30 Police observed visible blood in numerous places in various areas of the premises and watered down blood in others.

31 When you were arrested, you had a pipe in your possession which appeared to be used for the purpose of consuming methyl amphetamine. There was also a lighter and there was a white crystalline substance found at the premises as well. There is other evidence to indicate that you used that drug from time to time as your counsel submitted.

32 Police took your Toyota Corolla vehicle and examined it. That examination revealed that the boot liner had been removed from the vehicle, and there was evidence of blood within the boot area. Also located within the vehicle, under the driver seat, was a large white handled knife.

33 In the course of her submissions, the prosecutor argued that you had extremist Islamic beliefs, exhibiting some alliance to Jihad and Syria, and followed Sharia Law. You admitted to slicing the deceased’s hand in the past when you gave her the Sharia book and she did not want to follow it. An issue raised during the plea on your behalf was whether those beliefs are a primary explanation for you committing this terrible murder. I will return to that issue shortly.

Victim Impact Statements

34 On the hearing of your plea, nine Victim Impact Statements were produced including those of TN, sister of the deceased, TH, mother of the deceased, AT, brother-in-law of the deceased, TM, uncle of the deceased and RF, sister-in-law of the deceased. Eamonn McCarthy produced a statement on behalf of your children RD, RM and RK.

35 None of the victims wanted their statements read in Court but I have read them in private. Out of respect for their privacy, I will simply observe that they confirm your brutal and violent actions have had a dramatic impact on them and the consequences will affect them for the rest of their lives. I have taken those statements into account in determining the sentence I should impose on you.

Plea of guilty, remorse and rehabilitation

36 As I said at the commencement of these reasons you were arraigned in this Court on 20 September 2017 and pleaded guilty. That followed a partially contested committal hearing, mainly aimed at the issue of whether you had a defence of mental impairment. It became clear that you did not and your offer to plead guilty was made on 1 September 2017. That plea was accepted by the prosecution on a conditional basis.

37 There is an obvious utilitarian benefit in you pleading guilty. A trial has not had to occur and the trauma associated with that for members of your wife’s family has been avoided, as well as the public cost connected with such a trial.

38 However there is no sign that you feel any remorse for what you have done. The prosecutor was right to submit that if you were, at the time of murdering your wife, under the influence of a psychosis induced by drugs, one might have expected some expressions of remorse since. As I understand it, that has not occurred.

39 As far as your prospects for rehabilitation are concerned, given your claimed lack of memory of the event, your lack of remorse for what you did and unwillingness to undergo treatment for mental health issues it is hard to identify anything positive about your future rehabilitation. In my opinion those prospects are very low.

Personal Circumstances

40 You were born on 9 August 1981 in Melbourne; at the time of the offence you were aged 34 years and are now aged 36. Your mother is from Greece and your father was from Lebanon. You are one of six children and grew up in the [redacted] area. You also have five older half siblings.

41 Your education ended at year 11 at [redacted]. During that education there were behavioural problems. You struggled with literacy and social contact. During your teenage years your parents separated and for a time you lived in Sydney with your uncle.

42 Employment has not been regular for you and for some time you had been on a disability pension.

43 You faced trial in this Court for what was known as the ‘Benbrika’ matter and were acquitted but you had spent two and half years in custody between 2005 and 2008.

44 As I have already described, you married the deceased woman not long after your release.

45 Your father died in June 2016, not long before this incident occurred.

Mental state at the time of the offence

46 In contention between the prosecutor and your counsel, Mr Johns SC, was whether this offence was the product of a drug induced psychosis or whether it was purely the result of your extreme Islamic beliefs. In my opinion, achieving any certainty as to the primary motivation for your conduct is a difficult process.

47 You do appear to have some psychiatric history going back to 2003. Following that, from time to time you were treated with anti-psychotic medication. Between 2005-2008, when you were in custody, there were diagnoses of depression, bi-polar disorder and schizophrenia. In 2012 a consultant psychiatrist reported that you claimed to have anger, paranoia and auditory hallucinations.^[10] However in 2015 you were observed to be psychologically stable without hallucinations or mood changes. It is put that in the first half of 2016 your mental state deteriorated and you were behaving erratically.

48 It was argued on your behalf by Mr Johns that, at the time of you murdering your wife, you were psychotic and that psychosis was induced or caused by the fact that you had consumed methyl amphetamine. Thus it is argued that your moral culpability or responsibility for what you have done was reduced. In the plea hearing before me the onus was on you to establish that as being more probable than not. As I have already said, and as your counsel relied on, signs of your use of methyl amphetamine were found at the premises.

49 On 8 May 2017 you were assessed over a video-link by forensic psychiatrist Dr Leon Turnbull for between half an hour and an hour.^[11] You gave him some detail of your psychiatric history and drug use. Your description of your drug use to Dr Turnbull was imprecise. Importantly, you told Dr Turnbull that for more than seven years you had actively avoided mental health services. Dr Turnbull observed from the material he examined that there was a change in your functioning in the lead up to the offence.

50 Dr Turnbull concluded that you experienced recurrent episodes of drug-induced psychoses. You told Dr Turnbull that you believed your wife was ‘some form of threatening creature’ and that you were under ‘the instruction of a deity to end her life’.^[12] Dr Turnbull concluded, with some qualification, that at the time of this offence you were in a drug-induced psychotic state. Of that conclusion, he said he was ‘fairly confident’.^[13]

51 Dr Turnbull gave evidence during the plea hearing. In evidence, he said that was his opinion on balance.^[14] Dr Turnbull acknowledged that he was not in a position to know accurately how much of the drug you used.^[15]

52 He seemed to suggest that your beliefs were either psychotic or extreme faith based beliefs. He also referred to a pattern of cause and effect suggesting that your consumption of ‘ice’ from time to time led to psychosis. He also said that, in his view, not only a psychosis from the use of ice explained your offending but so also did your beliefs in extreme Islam.

53 His evidence indicated, as other evidence does, that for seven years prior to this offence, you had ceased any contact with mental health treatment. He did accept that your extreme religious beliefs played some role in your offending, feeding into your psychosis and the content of your thinking.^[16] He agreed that in your police interview you did not display signs of psychosis. He also accepted that, if you were not psychotic, then your motivation was ‘informed’ by your beliefs.^[17]

54 Dr Turnbull’s opinion is not unreasonable but I consider there is merit in the prosecution submission that a video-link assessment of you for an hour or less is likely to be inadequate for a thorough assessment in the circumstances of this case. Particularly, the conclusion Dr Turnbull reached as to your mental state at the time you committed this offence and that your actions were the product of a drug-induced psychosis. Dr Turnbull acknowledged the limitations on this process during his evidence,^[18] and he did not consider that you had given him a confident and accurate history of your drug use, yet his opinion was substantially dependent on what you told him.^[19]

Previous Criminal History

55 Your criminal history began in 1999 with offences of theft and criminal damage offences. The result was a community based order for 12 months. Subsequent offences of theft in 2000 resulted in a suspended sentence. In 2002 offences of intentionally causing injury, theft and associated offences were concluded with an intensive corrections order. Later in 2002 serious driving offences led to 3 months imprisonment. In 2003 further dishonesty offences led to imprisonment that was partially suspended and theft of a vehicle which also led to imprisonment. In 2004 in relation to offences of intentionally causing injury, theft and failing to comply with an intensive correction order you served further imprisonment. In 2006 you were convicted of affray and some driving offences, for which you were sentenced to an effective 3 months imprisonment. More driving offences followed in 2007 and in 2012 there was a minor street offence for which you were fined.

56 Your record, whilst not relatively serious, demonstrates that you have little regard for the law and that for more than a decade you committed offences despite being offered opportunities for change.

Conclusion

57 In a case as violent as this, the Court and community will look for some reason which might explain your appalling conduct. However, the primary motivation remains unclear to me.

58 One of the more contentious issues on your plea was the question of whether you murdered your wife because of some form of commitment to radical Islamic Jihad. Separate and apart from your interest in radical Islam, was your act of removing your wife’s right eye whilst in the course of murdering her. Dr Adrian Gully, an Arabic interpreter, translator and specialist in Islamic culture had stated that Muslim tradition holds that the anti-Christ has one eye that is bulging and often that the right eye is missing or that the Dajjal is blind in the right eye.^[20] Your son RD described you saying that the deceased looked like the Dajjal with her eye missing.

59 The prosecutor argued that the link between extreme Islam and your wife’s murder was established in part by the link between the Dajjal narrative and your son’s reference to it. Your counsel argued that I should reject such a conclusion. Certainly, if I were to reach that conclusion I would have to be satisfied beyond reasonable doubt that radical ideals were the primary cause of your conduct.

60 There could be little doubt on the material that you leaned towards extremist Jihadi thinking. The question is, whether your views on those matters explain your conduct and amount to a motive for it.

61 In my opinion, this terrible act was a culmination of your very poor treatment of your wife and children for some considerable time before you committed this offence of murder. There was nothing sudden and spontaneous about this killing. You had treated your family with violent contempt.

62 Your counsel submitted that the domestic violence you imposed on your wife was a feature but not a significant aggravating feature of your offending. It is hard to accept that submission. The murder of your wife was the culmination of a long history of domestic violence, coupled with your violent propensity.

63 It is also likely that you were affected by the consequences of having used methyl amphetamine but I am not persuaded that, at the time you committed this offence, you were suffering from a drug-induced psychosis, nor that drugs are the complete explanation. Your counsel relied on a claimed drug-induced psychosis as lessening your moral culpability but I am not prepared to accept that conclusion. Whilst Dr Turnbull’s somewhat equivocal conclusion is possible, in my opinion, it is not established as being a probable explanation for your terrible conduct.

64 Likewise, and as Dr Turnbull accepted, your radical Islamic views in all likelihood had some link to the explanation for what you did. Whether it was the primary motivating factor for your offending, as the prosecutor has argued, I am likewise not able to be satisfied about. To sentence you on that basis, as I have already said, I would have to be satisfied beyond reasonable doubt and I am not so persuaded. I would not have thought your conduct in murdering your very compliant wife could easily be classified as an act of Jihad. It is difficult to see how even you might think that any radical Islamic cause was being advanced by what you did.

65 What I am sure of, is that your conduct was grotesquely violent. Your crime was horrific. What you did was disgusting and made so much worse, to the extent that is possible, by involving your children as witnesses. The very thought that a child could describe their father as ‘slaughter[ing]’ their mother is almost beyond belief. When the police put to you the effect of your children seeing such things, your remorseless response was that ‘if they’ve gone through hell they’ll grow up to be strong’.^[21]

66 Your instructions to your counsel are that you have no memory of murdering your wife. Even if that were true, which I do not accept for a moment, you have displayed no regret or remorse for something you accept you have done.

67 I have outlined your offending and I will not repeat it except to say that the community would be utterly disgusted by what you did. It is obvious that punishment, general and specific deterrence, denunciation and protection of the community are important sentencing considerations in this case. The nature and gravity of your conduct is in the most serious category and a very significant sentence is justified particularly given the aggravating factors including; the manner in which you murdered your wife, brutalising her body, dumping her body and doing all of it in the presence of your children. It is hard to forecast the extent of the impact of this crime on their lives as they grow and develop but it will be significant and adverse.

68 The prosecutor argued that I should sentence you to life imprisonment and decline to fix a non-parole period. On the other hand, your counsel submitted that I should fix a numerical head sentence and also fix a non-parole period. As to the first part of that submission, in my opinion and despite your plea of guilty, the sentence I regard as appropriate to be imposed on you for this offence is life imprisonment. Therefore on the charge of murder you will be sentenced to be imprisoned for life.

69 The next question concerns the fixing of a minimum term to be served before you would become eligible for release on parole. Section 11 of the Sentencing Act 1991 requires me to fix a non-parole period unless I consider that the nature of the offence, or your past history, makes doing so inappropriate.

70 On this issue, I must take into account your age and the consequence of someone of your age being consigned to custody for the rest of your life. In addition, your guilty plea in this matter was at an early stage in the proceedings, though there is no sign of any remorse. Also, your prior convictions, whilst serious, are not such as to compel a conclusion that, after a plea of guilty, you should not have a minimum term fixed.

71 Given the gravity of your offending however, the non-parole period to be fixed must be substantial. I have concluded that I should fix a period of 30 years to be served by you before you become eligible to apply for release on parole.

72 I declare pursuant to s 6AAA of the Sentencing Act 1991 that had you not pleaded guilty to this charge I would not have fixed a minimum term.

73 I also declare that your pre-sentence detention is 634 days, including this day, and I direct that period be entered in the records of the Court as time already served.

74 I have already made the forfeiture and disposal orders sought by the prosecution and not opposed on your behalf.

^[1] Depositions 372-373; 301.

^[2] Ibid 301.

^[3] Ibid 309.

^[4] Ibid 316.

^[5] Ibid 347.

^[6] Ibid 345.

^[7] Ibid 140; Committal Transcript 1 March 2017, 4-5.

^[8] Committal Transcript 1 March 2017, 9.

^[9] Depositions 196.

^[10] Ibid 1219.

^[11] Transcript at page 55.

^[12] Dr Turnbull’s Report 8 May 2017, 6.

^[13] Ibid.

^[14] Transcript at page 60.

^[15] Ibid 63.

^[16] Ibid 60.

^[17] Ibid 72.

^[18] Ibid 73.

^[19] Ibid 62.

^[20] Depositions 287.

^[21] Depositions 2223.