R v A1 (No. 6)

[2019] NSWSC 1581

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v A1 (No. 6) [2019] NSWSC 1581
Hearing dates:	4 October 2019
Date of orders:	15 November 2019
Decision date:	15 November 2019
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	The Offender is convicted and sentenced to imprisonment for a term of 32 years comprising a non-parole period of 23 years commencing on 7 October 2016 and expiring on 6 October 2039, with a balance of term of nine years commencing on 7 October 2039 and expiring on 6 October 2048. The earliest date upon which the Offender will be eligible for release on parole is 7 October 2039.
Catchwords:	CRIMINAL LAW – SENTENCE – MURDER – offender found guilty following trial by jury – victim shot six times in the head and once in chest – victim and offender’s wife involved in a relationship – where offender’s motive related to his outrage at the relationship between the victim and the offender’s wife and his sense of cultural dishonour – planned offence committed with intent to kill – whether offender provoked by victim attracting operation of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999 – characterisation as an “honour killing” unhelpful to offender – no “honour” in murder – offence fell markedly above mid-range of objective seriousness – general and specific deterrence important factors on sentence – absence of remorse – consideration of totality arising from accumulation of sentence on pre-existing sentence – limited finding of special circumstances – offender sentenced to imprisonment for 32 years with a non-parole period of 23 years.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hamidzadeh v R (2013) 1 NZLR 369; [2012] NZCA 550 Imbornone v R [2017] NSWCCA 144 R v A1 (No. 1) [2019] NSWSC 611 R v Ali [2011] EWCA Crim 1011 R v Campbell [2016] QCA 42 R v Freeman [2015] VSC 506 R v Andrew Iskandar; R v Nita Iskandar (No. 4) [2012] NSWSC 149 R v Hazairin Iskandar [2012] NSWSC 1324 Andrew Iskandar v R [2013] NSWCCA 235 R v Khan (1996) 86 A Crim R 552 R v Khan [2016] 1 Cr App R (S) 47; [2015] EWCA Crim 1816 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 R v Rajab and Ors [2017] NSWSC 975 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v White (Court of Criminal Appeal, 23 June 1998, unreported) Tepania v R [2018] NSWCCA 247 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Tyne v Tasmania (2005) 15 Tas R 221; [2005] TASSC 119 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Texts Cited:	---
Category:	Sentence
Parties:	Regina (Crown) A1 (Offender)
Representation:	Counsel: Mr RA Herps (Crown) Mr K Chapple SC (Offender)   Solicitors: Director of Public Prosecutions (Crown) Allied Lawyers (Offender)
File Number(s):	2015/296084
Publication restriction:	---

REMARKS ON SENTENCE

1. JOHNSON J: The Offender, A1, appears for sentence for the crime of murder following trial by jury at which a verdict of guilty was returned on 10 July 2019.

2. The Offender is not named in these sentencing remarks nor are the victim, the Offender’s wife and daughter and the Offender’s brothers given orders made on 22 May 2019 under the Court Suppression and Non-publication Orders Act 2010 for reasons explained in R v A1 (No. 1) [2019] NSWSC 611. For present purposes, it is sufficient to refer to these persons as the Offender, the Offender’s wife, the victim, the Offender’s daughter and the Offender’s brothers without resort to the pseudonyms set out in R v A1 (No. 1).

3. The maximum penalty for murder is imprisonment for life: s.19A(1) Crimes Act 1900. The offence of murder carries a standard non-parole period of 20 years: s.54A Crimes (Sentencing Procedure) Act 1999.

Facts of the Offence

Applicable Principles

4. It is the responsibility of the Court to determine the facts on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[5]. In finding facts for the purpose of sentence, the primary constraint upon the Court is that the view of the facts to be adopted for the purpose of sentencing must be consistent with the verdict of the jury. Some of those facts will have emerged in evidence at the trial, others may only emerge at the sentencing hearing. Findings of fact made against the Offender on sentence must be arrived at beyond reasonable doubt: Cheung v The Queen at [14]-[15].

5. On the other hand, if there are matters which the Offender seeks to rely upon to reduce his penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28].

6. A sentencing Judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform an offender’s moral culpability. However, it may not be possible for the Judge to ascertain everything which is relevant, especially where an offender (as here) chooses not to give evidence at trial or on sentence: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Further, not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. There are matters of human behaviour that lie between those extremes: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22]. The Court may be unpersuaded of matters urged in mitigation or aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at [24].

Findings of Fact

7. The following findings of fact with respect to the offence are based upon evidence adduced at the trial, the great bulk of which was not challenged. The Crown case against the Offender was essentially a circumstantial one based upon many pieces of evidence. A chronology was provided to the jury before closing addresses of counsel to assist the jury to follow the addresses and my summing up which followed the addresses. The chronology had been settled with the agreement of counsel for the Crown and counsel for the Offender at trial. I have utilised the chronology, and the evidence summarised in the chronology, for the purpose of the following findings of fact.

8. The Offender, who was born overseas, came to Australia in the 1990s and, at the time of the offence in April 2015, was living with his wife and children at an address in south-western Sydney. The Offender conducted a trucking business at that time.

9. Prior to 2015, the Offender made arrangements for the victim to come to Australia for the purpose of marrying the Offender’s daughter. The victim (then aged 23 years) came to Australia in mid-January 2015 and commenced to reside with the Offender (then aged 46 years), the Offender’s wife and children. By that time, the Offender’s daughter was seriously ill.

10. On 21 February 2015, an altercation occurred at the Offender’s home which involved the Offender, the victim and the Offender’s daughter. On the evening of 21 February 2015, the victim attended a police station and complained that he had been injured by the Offender and the Offender’s daughter. Police attended the Offender’s home and spoke to those concerned, and the parties provided conflicting versions of the altercation. Police sought an apprehended violence order against the victim with the Offender and the Offender’s daughter being named as persons in need of protection. Soon after, however, that application was withdrawn.

11. On or soon after 21 February 2015, the victim moved out of the Offender’s home and was staying with other relatives in western Sydney. The Offender’s wife provided support and assistance to the victim from this time, including help in finding him accommodation.

12. By late February 2015, the victim was living at an address in south-western Sydney which had been located with the assistance of the Offender’s wife. She would visit the victim at that house from time to time. The evidence revealed that, by that time, there were signs of affection between the Offender’s wife and the victim.

13. The victim was residing at this house in south-western Sydney at the time of his murder on 23 April 2015.

14. The victim obtained employment in different capacities in March and April 2015 and was largely self-sufficient. He was not reliant upon the Offender in any material respect.

15. As will be seen, the evidence revealed, and the jury found (as do I), that the Offender took steps from late March 2015 to locate the victim and his place of residence. I am satisfied that the Offender was taking these steps because of a grievance which he had with the victim arising from the Offender’s perception of the closeness of the relationship between the Offender’s wife and the victim.

16. On 30 March 2015, the Offender purchased a number of tracking devices. I am satisfied that the Offender intended to use one or more of these devices for the purpose of tracking the movements of his wife in her vehicle in the context of likely contact between her and the victim. This step by the Offender pointed to an increasing level of attention on his part towards locating the whereabouts of the victim and to ascertain what contact was taking place between the victim and the Offender’s wife.

17. On the evening of 1 April 2015, whilst driving in south-western Sydney, the victim observed the Offender and another person in a motor vehicle which appeared to be following the victim. The victim was apprehensive and made a “000” call on his mobile phone and drove to a nearby police station. The victim stated in the “000” call, and informed police when he attended the police station, that he was being followed by the Offender. The driver of the vehicle containing the Offender was called by the Crown at the trial. I am satisfied by reference to the totality of evidence on this aspect, including the “000” call, police records and the evidence of the other driver, that the Offender was demonstrating an obsessive interest in the whereabouts of the victim, with this causing significant concern and distress to the victim, such that he made the “000” call and sought the assistance of police in response to the Offender’s actions.

18. Technical evidence adduced at the trial demonstrated that, on 14 or 15 April 2015, the Offender made electronic searches on his telephone for the address at which the victim was then residing. I am satisfied that, by this time, the Offender had found out the victim’s address and was taking further steps to identify its precise location.

19. On 15 April 2015, the victim made application at a Local Court for an apprehended violence order with respect to the Offender. The evidence at the trial revealed that the Registrar at the Local Court was sufficiently concerned about the matter that an urgent return date for the application was fixed for 17 April 2015. Unfortunately, the victim’s application was not served on the Offender in time and the application lapsed, and did not proceed on 17 April 2015.

20. A large number of text messages which passed between the Offender, the victim and the Offender’s wife were tendered in evidence at the trial (Exhibits CB and CC). These messages covered a period between 14 and 23 April 2015. It is not necessary to set out the terms of text messages sent between these persons. It is sufficient to observe that the Offender’s strongly worded text messages (some of which had highly sexual content) revealed his firm belief that the victim and the Offender’s wife were engaged in a sexual relationship with the Offender expressing a level of outrage at this state of affairs. On occasions, the Offender’s text messages expressed strong feelings of dishonour which he felt arising from this state of affairs.

21. Some examples of these text messages convey the tone and content of the Offender’s thought processes. On 15 April 2015, the Offender said in a text to his wife “I cannot take it any more and I fear I will get carried away” (Exhibit CB, page 6). Twice on 17 April 2015, the Offender referred to “honour” in text messages to his wife and the victim (Exhibit CB, pages 17, 22). On 22 April 2015, the Offender said in a further text to his wife “… I am devastated and stepped over and I shall regain my dignity” (Exhibit CB, page 62).

22. On 23 April 2015, the Offender exchanged text messages with his wife concerning the location of the keys to a family vehicle which the Offender regularly used. Earlier that evening, the Offender’s wife had left their home in another family vehicle to meet with the victim. She had taken with her the keys to the family vehicle ordinarily used by the Offender. Text messages passing between them made clear that the Offender wished to get hold of those keys that evening, however he did not obtain the keys as his wife did not return to the house.

23. In a text message sent to his wife at 8.28 pm, the Offender stated that he would come out “in the truck”. The Offender owned an Isuzu truck at that time which he used in his trucking business.

24. I am satisfied that the Offender’s wife and the victim rendezvoused at a location in south-western Sydney that evening.

25. On the evening of 23 April 2015, text messages were sent by the Offender to his wife and the victim expressing his strong belief and disapproval that there was a sexual relationship between the victim and the Offender’s wife. At 8.59 pm, the Offender’s text message to his wife included the words “God will punish you” (Exhibit CB, page 65). Other messages used stronger language.

26. I am satisfied that the Offender set out on a journey from his home at about 10.15 pm on 23 April 2015 bound for the victim’s residential address, several kilometres away. The Offender was driving his Isuzu truck. The Crown adduced detailed evidence at the trial of CCTV footage from a variety of locations over a number of suburbs which lay between the Offender’s home and the victim’s address. The evidence provided strong support for the movement of an Isuzu truck, which I am satisfied that the jury accepted was the Offender’s truck, at times which demonstrated a journey being undertaken from the Offender’s address to the victim’s address and then back to the Offender’s address.

27. I am satisfied that the Offender drove to the vicinity of the victim’s residential address and parked his Isuzu truck in a siding some distance up the road. The Offender then walked down to the victim’s residential address where he stood in darkness next to a tree which disguised his presence in the front yard of the premises. At this time, the Offender was armed with a .22 calibre handgun which he intended to use to kill the victim.

28. Between 11.38 pm and 11.45 pm, the victim made a telephone call from his vehicle to the Offender’s wife after he had left her to return to his home.

29. At about 11.45 pm, the victim drove his vehicle and parked it in the front yard of the premises where he lived. As the victim entered the front door of the premises, the Offender moved forward and shot the victim six times in the head and once in the right side of the chest. The medical evidence indicated that each of these injuries was capable of being fatal on its own.

30. The Offender’s level of anger was reflected in the number of shots fired and their location. As the Crown submitted to the jury, this was a case of “overkill”, demonstrating a very clear intention to kill and the depth of feeling motivating the Offender in this brutal and homicidal attack.

31. I am satisfied that the Offender’s motive for killing the victim related to his outrage at the relationship which had developed (and continued) between the victim and the Offender’s wife, and the sense of dishonour which the Offender felt in that respect for cultural reasons. Forensic evidence adduced at the trial confirmed the existence of a sexual relationship between the victim and the Offender’s wife.

32. Evidence was given at the trial by Professor Karl Roberts, of the School of Social Sciences and Psychology at Western Sydney University, concerning honour-based violence in certain cultural contexts. The evidence of Professor Roberts was unchallenged and supported a conclusion that the Offender felt dishonoured by the actions of the victim, in a manner which operated upon his mind beyond the effect of infidelity which might occur in other circumstances not involving cultural considerations.

33. The Offender then returned to his Isuzu truck which was parked in the siding up the road before setting out on the return journey to his own home. When walking up the footpath towards the location where the Isuzu truck was parked, the Offender left a footprint which was detected soon after by police. On the totality of the evidence at trial, I am satisfied this footprint was consistent with the shoes which the Offender was wearing that day as depicted in CCTV footage taken at different locations which was presented to the jury. This was a further aspect of the Crown’s multi-facetted circumstantial case.

34. The person who shared the residential premises with the victim was present in a different part of the house at the time of the murder. He heard the shots being fired but did not see the shooter. He made a “000” call promptly, with police attending the scene soon after, thereby allowing scientific and forensic investigations to be undertaken without delay, including the discovery of the nearby footprint and tyre prints in the siding up the road where I am satisfied that the Offender had parked his Isuzu truck.

35. After the murder, the Offender drove the Isuzu truck back to his home. I am satisfied that it was the Offender’s Isuzu truck which was visible on CCTV footage taken at different locations on the way. The Offender returned to his home after 12.00 am on 24 April 2015. At 1.03 am, the Offender drove in his family sedan to a local service station where he purchased a packet of cigarettes. This event was captured on CCTV footage at the service station. The likely explanation for the Offender’s visit to the service station at this time (wearing his pyjamas and dressing gown) was to provide a form of alibi in the event that he was investigated for the murder, a scenario which very soon came to pass.

36. Once police attended the scene of the murder and identified the victim, it did not take long for police to learn of the link between the victim and the Offender because of police records of the events concerning the victim and the Offender on 21 February 2015 and 1 April 2015 and the victim’s application for an apprehended violence order on 15 April 2015.

37. As a result, police visited the Offender’s residence and, at about 5.45 am on 24 April 2015, the Offender accompanied the police voluntarily to a police station where an electronically recorded interview took place. In that interview, which was in evidence before the jury at the trial, the Offender denied having killed the victim. He told police that he was at the service station late the previous evening at the time when it was said the murder had occurred. I am satisfied that the Offender well knew at the time he said this to the police that it was false, in circumstances where the murder and his visit to the service station had occurred just a few hours prior to the interview itself. A number of answers given by the Offender to police in this interview supported the view that he had felt a sense of dishonour because of the relationship between his wife and the victim. The Offender demonstrated a level of agitation and strong emotions during the interview, which provide some insight into his personality in the context of a police interview about the murder of the victim. At the conclusion of the interview, the Offender was released without charge.

7. In the weeks that followed, police continued their investigation including forensic and scientific testing of shoe prints and other items located in the vicinity of the murder.

8. On 26 May 2015, police executed a search warrant at the Offender’s home. An examination of a computer at the house identified Google map entries with GPS co-ordinates for the victim’s residential address. I am satisfied that this was evidence of the Offender’s steps to locate the victim’s home. Police took the Offender’s Isuzu truck that day for examination.

9. After 26 May 2015, investigations continued with respect to various items and substances located at and near the crime scene. Detailed enquiries were made by police with Isuzu Australia concerning Isuzu trucks and identification of the truck depicted in the CCTV footage on the evening of 23 April 2015 obtained by police from various locations on the route between the Offender’s home and the victim’s residential address.

10. On 9 October 2015, police arrested the Offender and a further electronically recorded interview was undertaken with him. The Offender denied any involvement in the murder of the victim. The Offender was charged with murder at that time and has remained in custody since that date.

11. The .22 calibre firearm used as the murder weapon on 23 April 2015 has never been located.

The Offender’s Subjective Circumstances

43. The Offender was 46 years of age at the time of the offence and is now 51 years old.

The Offender’s Criminal History

44. The Offender has a criminal history. On 16 December 2008, the Offender was sentenced in the Parramatta Local Court for offences of assault occasioning actual bodily harm and stalk or intimidate with intent to cause fear of physical or mental harm and was fined a total of $1,500.00. The facts of those offences were placed before the Court and revealed that, on 24 October 2008, an incident occurred between the Offender and one of his brothers in which the Offender said “I’m going to kill you, I’m going to kill your kids, and your ex-wife if the police arrest me for one day”. The Offender assaulted his brother with his fists whilst making further threats towards him.

45. In addition, the Offender was convicted for offences which occurred after the murder on 23 April 2015. On 11 December 2015, he appeared at the Liverpool Local Court for offences of possessing a shortened firearm and possessing an unauthorised prohibited firearm together with offences of possession of ammunition without a licence and not keeping a firearm safely. A total effective sentence of imprisonment for 12 months was imposed commencing on 7 October 2015 and expiring on 6 October 2016.

46. I have mentioned (at [39]) that police executed a search warrant at the Offender’s home on 26 May 2015. It was on this occasion that police located the firearm and ammunition which gave rise to these charges. Evidence of the location of that firearm (which was clearly not the murder weapon) was not led by the Crown at the trial of the Offender.

47. When the search warrant was being executed at the Offender’s home on 26 May 2015, police searched the bathroom and opened an access panel for the spa bath pump which was unlocked. Police reached about 20 centimetres into a cavity behind the panel, and located an unsecured shortened shotgun inside a black leather case. The butt stock and a portion of the barrel of this firearm had been sawn off. A box containing five 12-gauge shotgun shells was also located within this same cavity.

48. The Offender told police at that time that he had this firearm “from 20 years ago” and that it was for duck hunting. He said that he had been given the firearm by a friend “maybe 19 years ago”. Police records identified this firearm as having been stolen in December 2011 from a property in the Hunter Valley. Records indicated that the Offender had applied to the Firearms Registry in March 2012 for a probationary pistol licence for the purpose of target shooting, with this application being refused in April 2012.

49. On 25 June 2015, the Offender was interviewed at a police station about this firearm and said that he “used to have the shotgun up on the wall for cultural reasons”, but that given the presence of his children in the house, he had placed the firearm in the bathroom out of view from the children. Contrary to what he said to police on 26 May 2015, the Offender told police that he had bought the shotgun about three years before from a friend, but did not intend to use the firearm.

50. The Offender’s personal circumstances, including his family and employment history, were revealed in the trial in the evidence of his wife and in parts of the Offender’s recorded interviews with police which were not controversial. It is not necessary to further recount these personal circumstances for the purpose of sentence.

51. No oral evidence was called in the defence case on sentence.

Psychiatric Evidence

52. A report of Dr Stephen Allnutt, psychiatrist, dated 25 September 2019 was tendered for the Offender. Dr Allnutt examined the Offender on 13 September 2019. In the consultation with Dr Allnutt, the Offender maintained his denial with respect to the murder. When Dr Allnutt asked him about thoughts of his wife having an affair with the victim, the Offender denied that he had ever had any real thoughts or strong beliefs that this was so. He explained to Dr Allnutt that he was under stress in the early months of 2015 because of the significant health problems experienced by his daughter.

53. Dr Allnutt observed that the Offender’s “speech was clear and coherent, but his voice was somewhat flat and monotonous”. Dr Allnutt stated that the Offender “endorsed several depressive and anxiety symptoms and his affect was flat”, but there was no psychosis and Dr Allnutt did not believe that there was evidence of any delusional beliefs about infidelity. Dr Allnutt considered that the Offender was intact cognitively, but “he did have some concentration difficulties secondary to his depression” and “his capacity for insight and judgment appeared to be adequate”. Dr Allnutt considered that the Offender, at that time, manifested symptoms of a major depressive episode.

54. Based upon the Offender’s account, Dr Allnutt recounted that the Offender had no significant psychiatric history until his daughter was diagnosed with a serious illness. The Offender denied to Dr Allnutt that he harboured specific jealous feelings or beliefs of infidelity about his wife and the victim. Dr Allnutt stated:

“Your client's account is that the text messages he sent to the deceased in the time leading up to the offence were not because he truly believed they were having an affair but were expressions of his frustration towards the deceased and his wife for his wife[’s] unsatisfactory involvement with their daughter.”

55. Dr Allnutt said with respect to the Offender’s mental state at the time of the offence:

“At the material time of the offence, your client was experiencing a major depressive episode, the significant stressor of a daughter who was suffering a life-threatening illness, deterioration [in] the quality of his marital relationship and business, and relative social withdrawal. As a result of his depression, he would have been prone to significantly increased levels of emotional distress increased irritability and short-temperedness and aggression, poor frustration tolerance, negative distortion of events in his environment and prone to expressing himself in highly aggressive and emotive terms to other people.”

56. Dr Allnutt continued:

“Given that your client continues to deny the offence, it is difficult to explore issues of remorse, although he does say that at the time he was interviewed by the police, as well as at the time he was sending the text messages, he was feeling extremely angry with the deceased and wife, but that he did not harbor those feelings towards the deceased when I saw him and felt sorry for his death.”

57. In determining what use to make of Dr Allnutt’s report for the purpose of sentence, I keep in mind that the Offender did not give evidence at the trial or on sentence and that the foundation for the report was the Offender’s own untested account based upon a denial of the offence. Very little weight should be given to the report in these circumstances: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58]-[59]; Imbornone v R [2017] NSWCCA 144 at [57].

58. That said, there was evidence at the trial of the serious health problems of the Offender’s daughter in the period January-April 2015. I accept that this factor was causing a measure of stress in the Offender’s life at the time of the offence. However, the principal factor which was affecting the Offender at that time was his outrage at the conduct of the victim and the Offender’s wife, accompanied by feelings of dishonour which were strongly reflected in the Offender’s text messages in the days leading up to the murder.

Victim Impact Statements

59. Tendered in the Crown case were victim impact statements made by the mother, brother and sisters of the victim. Each of the family members who made victim impact statements expressed their love for the young man and their extreme grief at learning of his death in Australia, a country far from their own homes.

60. The family members speak of the victim’s great hopes and expectations when he travelled to Australia in January 2015 with those expectations being dashed by his murder just three months later.

61. It is clear that the victim’s family will continue to suffer grief as a result of the great loss each of them has suffered.

62. The Court expresses its condolences to the family members arising from the loss of their loved son and brother as a result of this terrible crime.

Objective Gravity of the Offence

63. A number of features bear upon an assessment of the objective gravity of the offence. Objective gravity is to be assessed applying general law principles, but taking into account as well, the statutory factor of objective seriousness as a standard non-parole period applies for this offence: Tepania v R [2018] NSWCCA 247 at [112].

64. I am satisfied that the Offender intended to kill the victim. The number and location of gunshot injuries inflicted upon the victim point clearly to the homicidal intent of the killer.

65. Motive for the commission of an offence is an important factor on sentence: Tepania v R at [112]. The Offender’s motive in this case was to punish the victim for his conduct with the Offender’s wife which agitated the Offender in an extreme fashion, magnified by a strong sense of dishonour.

66. I accept that the Offender was under a degree of stress at the time of the offence because of the serious ill health of his daughter. This stress was no doubt compounded by the fact that it was this daughter who was meant to take part in an arranged marriage with the victim. However, the principal stressor upon the Offender in the period leading up to the murder was his rage towards the victim because of the victim’s relationship with the Offender’s wife. I note that the marital relationship between the Offender and his wife was not close before the victim came to Australia in January 2015 – the evidence indicated that the Offender and his wife occupied separate bedrooms in the family home.

67. The murder of the victim was not a spontaneous act. I am satisfied that the Offender took steps from late March 2015 to locate and track down the victim because of his desire to do him harm. Although the evidence does not support a conclusion that the Offender formed an intention to murder the victim as early as March 2015, I am satisfied that he had formed such a homicidal intent at least some days prior to 23 April 2015. The Offender already possessed the shortened shotgun which was located in his house on 26 May 2015. Such a firearm was not the weapon of choice for the purpose of an execution-type killing carried out by the Offender on 23 April 2015. I am satisfied that the Offender either had or obtained a .22 calibre handgun which he used to murder the victim. He disposed of the murder weapon after the crime was committed.

68. I am satisfied that the Offender set out in the Isuzu truck on the evening of 23 April 2015 on a journey from his home to the victim’s residential address intending to murder the victim. The Offender lay in wait in the victim’s front yard in darkness behind a tree until the victim arrived. The Offender did not confront the victim to argue with him or to threaten him. Rather, as the victim entered the front door of the house, unaware of the presence of the Offender, the Offender stepped forward and executed him with six gunshot wounds to the head and one to the chest. The Offender departed immediately, being fully aware that the victim was dead.

69. It was submitted for the Offender that a mitigating factor arose in this case as the Offender was provoked by the victim: s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999. Although the Offender denied that he was the killer, and maintained to Dr Allnutt that he did not believe that the victim was having an affair with his wife (see [54] above), it was open to Senior Counsel for the Offender to make this submission given the jury’s verdict and the strong body of evidence concerning the Offender’s feelings of rage and dishonour.

70. It was submitted that there had been a measure of aggression displayed by the victim towards the Offender on 21 February 2015 and that the victim commenced and continued his relationship with the Offender’s wife, despite the Offender’s strongly worded text messages on this topic, up to and including the evening of 23 April 2015. Although not suggesting that this state of affairs was such as to give rise to a partial defence of extreme provocation under s.23 Crimes Act 1900, it was submitted that the conduct of the victim was provocative so as to mitigate sentence in this case.

71. I take into account the fact that the events leading up to the murder had a confronting effect upon the Offender arising from the victim’s conduct and the honour-related cultural sentiments experienced by the Offender. Circumstances or this type are capable of constituting a form of provocation to be taken into account on sentence: R v Khan (1996) 86 A Crim R 552 at 556-557.

72. This issue, however, is a complex one which does not have an automatic consequence on sentence. In R v White (Court of Criminal Appeal, 23 June 1998, unreported), Spigelman CJ (Sheller JA and Newman J agreeing) said:

“It is not the case that every explanation of conduct constitutes a matter of mitigation. The circumstances in which motive, whether characterised as provocation or not, may be a mitigating factor must be confined to cases in which motive impinges upon the moral culpability of the prisoner. These can include mental, emotional or medical problems or impulsive conduct. However, the degree to which motive can be seen to be pertinent must depend on the whole of the circumstances. See eg. R v Wright (1997) 93 A Crim R 48 at 50-51; R v Engert (1995) 84 A Crim R 67 at 68 and 71. The most significant circumstance is the nature of the offence. Where the crime is a carefully premeditated murder, motive should not be regarded as a mitigating factor. In sentencing matters it is, perhaps, never appropriate to say "never". However, it is difficult to conceive of any circumstances in which motive could be such a factor but, assuredly, sexual jealousy is not one. There is nothing in this case to lessen the weight appropriately given by his Honour to the requirements of general deterrence.”

73. In Tyne v Tasmania (2005) 15 Tas R 221; [2005] TASSC 119, Blow J (as the Chief Justice then was) said (at [28]):

“The circumstances that a sentencing judge should take into account in relation to provocation in a murder case include the nature of the provocation, its severity, its duration, its timing in relation to the killing, any relevant personal characteristics of the offender (eg, in cases of racial abuse), and the extent of the impact of the provocative conduct on the offender.”

74. In Hamidzadeh v R (2013) 1 NZLR 369; [2012] NZCA 550, the New Zealand Court of Appeal (Hammond, Randerson and French JJ) said at [62]:

“The approach to provocation sentencing will be very much fact-dependent. However, relevant factors may include the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances. We stress that these factors should not be treated as an exhaustive list and that a flexible approach is required.”

75. The approach to provocation as a mitigating factor, as considered in Tyne v Tasmania and Hamidzadeh v R, was endorsed by the Queensland Court of Appeal in R v Campbell [2016] QCA 42 at [36]-[37].

76. In an appropriate case, findings may be made which recognise human frailty in the face of provocative behaviour with these findings leading to a corresponding reduction in moral culpability: R v Freeman [2015] VSC 506 at [41].

77. It has been said that, as a matter of principle, where provocation is relied upon in a sentence proceeding for murder that what is said to be the provocative conduct of the deceased does not have to be contemporaneous with the killing for it to be an available factor relevant to an assessment of objective seriousness. However, the effluxion of time between the provocative conduct and the killing is relevant to that question: R v Rajab and Ors [2017] NSWSC 975 at [73].

78. The position is further complicated where the offence is sought to be characterised as an “honour killing”.

79. To the extent that the term “honour killing” has been used in this and other cases, I record my immediate rejection of the concept of “honour” as playing any part in an understanding of this crime. I agree with the Court of Appeal (Criminal Division) (Hughes LJ, Evans and Gordon JJ) in R v Ali [2011] EWCA Crim 1011 at [1] that the killing of a person in circumstances such as this should not attract the use of the term “honour killing” as “there is no honour about such an event”. In a similar vein, in a statement with which I agree, the Court of Appeal (Criminal Division) (Burnett LJ, Parker and Laing JJ) said in R v Khan [2016] 1 Cr App R (S) 47; [2015] EWCA Crim 1816 at [23]:

“The prosecution had advanced this case before the jury on the basis that it was ‘an attempt at a so-called honour killing’. The qualification ‘so-called’ is very important. Normally when the word ‘honour’ is used it conveys a sense of something noble or worthwhile. Attacks on women or girls, or the boys or young men with whom it is said they have behaved inappropriately, have nothing to do with honour. They are vile crimes, nothing less. We do not accept that an adult committing a revenge attack of this sort could suggest that such motivation provided any mitigation whatsoever … A vague appeal to ‘cultural pressures’ cannot assist any more than it would, for example, were a 17 year-old to beat someone up in a revenge attack for a perceived insult to his girlfriend and then said his response was the normal way of dealing with such matters in his family and social circles.”

80. There have been cases in New South Wales where murder was committed in the name of honour. In R v Andrew Iskandar; R v Nita Iskandar (No. 4) [2012] NSWSC 149, Davies J sentenced persons for their part in a so-called “honour killing”, where there was a religious belief by the offenders that a person committing adultery was a “terrible shameful thing” (at [29]). In words with which I entirely agree, Davies J said at [90]-[92]:

“90   In assessing its objective seriousness wholly by reference to the nature of the offending, the murder in the present case must be regarded as a serious and brutal one aggravated by the weapons used, the fact that it was committed in company, and the extended period of the assault.

91   If one adds into the synthesis the motive for the murder its overall seriousness is increased. This murder has been described as an honour killing. So to describe it invests with it a degree of legitimacy that it does not, and can never, have. No society or culture that regards itself as civilised can tolerate to any extent, or make any allowance for, the killing of another person for such an amorphous concept as honour. Further, the whole basis and origin of honour killings is the notion that a woman is the chattel or possession of a man, whether her father, her husband, or some other patriarchal figure. Such a notion has no place in this country.

92   The motive for this murder means that general deterrence assumes some importance in the determination of the sentence.”

81. On appeal against sentence in that case, the Court of Criminal Appeal (Beazley JA, R A Hulme and Bellew JJ) endorsed the sentencing Judge’s approach, saying “What his Honour saw as the necessity to make it clear that so-called honour killings have no place in the community … were clearly relevant factors in his Honour’s determination”: Andrew Iskandar v R [2013] NSWCCA 235 at [31].

82. In related proceedings, Davies J sentenced the actual killer whom his Honour said had ambushed the deceased with the intention of killing him: R v Hazairin Iskandar [2012] NSWSC 1324 at [34]. His Honour found (at [45]-[46]) that the offence fell “a little above the mid range of objective seriousness, relying upon a finding of intention to kill the deceased, considerable preplanning and the fact that weapons were used together with the nature and length of the attack”.

83. With respect to a submission that provocation operated as a mitigating factor under s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999, Davies J accepted (at [56]) that the offender had become “upset and to some extent depressed”, but that it did not prevent him from carrying on a variety of other life activities. His Honour observed, as well, the extent of the preplanning which had taken place. Davies J continued at [58]-[59]:

“58   I have already rejected the evidence of provocation on the night of the offence. I take into account the upset and shame the Offender felt as a result of the ongoing relationship over which he appeared to have no control. However, as this Court said in Regina v White (NSWCCA - 23 June 1998 - unreported) these matters only explain the Offender's motive for murdering the Deceased, and where the crime is a carefully premeditated murder motive should not be regarded as a mitigating factor.

59   Nevertheless, the provocation from the ongoing relationship means that personal deterrence has less of a role to play. On the other hand it has some significance for general deterrence. As the Court of Criminal Appeal said in Dwayne William Smith v R [2011] NSWCCA 209, people cannot be allowed to take the law into their own hands and exact vengeance for wrongs done to them.”

84. This was a planned and savage execution of the victim by the Offender undertaken with intention to kill. Although there had been a form of provocative conduct on the part of the victim, that conduct had been on foot for some time prior to 23 April 2015. This was not a spontaneous response by the Offender to conduct which suddenly occurred leading to an explosive reaction on his part. Rather, the Offender’s emotions continued to boil for a period with him hatching a plan to kill the victim, having undertaken by various means to discover his place of residence.

85. Sexual jealousy does not operate to mitigate the Offender’s carefully premeditated murder of the victim: R v White (see [72] above). Any cultural notion of dishonour does not operate to mitigate sentence for the Offender’s crime: R v Khan (see [79] above); R v Andrew Iskandar; R v Nita Iskandar (No 4) (at [80] above); Andrew Iskandar v R (at [81] above); R v Hazairin Iskandar (at [83] above).

86. This was a crime of very considerable gravity. For the purpose of the standard non-parole period provisions, I assess the offence as lying markedly above the mid-range of objective seriousness. Applying general law principles with respect to objective gravity, the Offender’s moral culpability is reduced to a limited extent only because of the stress operating upon the Offender arising from his daughter’s very serious illness.

Specific and General Deterrence

87. The Offender continues to deny that he committed this offence. In what he said to Dr Allnutt (see [54] above), he sought to unrealistically minimise his own thought processes depicted in text messages sent by him in the days prior to the murder. In my view, the Offender is literally in a continuing state of denial with respect to this offence.

88. The Offender has demonstrated in the past, through his 2008 offences, a temper accompanied by the making of threats to, and an assault upon, a family member (see [44] above). His possession of an unlawful firearm in May 2015 does not assist the Offender.

89. Although it might be said that the circumstances that led to this murder were unusual and reactive to particular factors, the Offender’s capacity for aggression and a violent response remains part of his makeup. There is a need for specific deterrence to be reflected on sentence in this case where the Offender continues to lack insight into his offending.

90. General deterrence is an important factor on sentence in this case. Beyond the role of general deterrence in all murder cases, there is in the present case, the so-called “honour killing” aspect which attracts a particular need for general deterrence in the manner expressed by Davies J in R v Andrew Iskandar (at [80] above) and endorsed by the Court of Criminal Appeal (at [81] above). To the extent that sexual jealousy served to motivate this offence, general deterrence is a significant factor on sentence: R v White (see [72] above). Further, as Davies J said in R v Hazairin Iskandar (see [83] above), general deterrence should be reflected on sentence to emphasise that persons cannot take the law into their own hands to exact vengeance for some personal grievance.

91. The sentence to be imposed must reflect the important role of specific deterrence and general deterrence in the circumstances of this case.

The Offender’s Prospects of Rehabilitation and Risk of Reoffending

92. The Offender has committed a crime of murder in the circumstances revealed in this judgment. He has displayed anger in the past directed to a family member which brought him into conflict with the law. His possession of a firearm in 2015 does not assist the Offender in circumstances where he used another firearm to murder the victim.

93. The Offender has expressed no remorse for this grave crime.

94. I bear in mind the Offender’s age, and the duration of the sentence to be passed in this case, so that the Offender will be of an advanced age before he could be eligible for release on parole. It is these aspects only which assist the Offender with respect to his prospects of rehabilitation and risk of reoffending.

Determining an Appropriate Sentence

95. The Court must determine a proportionate sentence having regard to the circumstances of the crime and the circumstances of the Offender. I have regard to all aspects referred to so far in this judgment.

96. Although the Crown referred to the availability of a life sentence for murder, the Crown did not submit that a life sentence was appropriate in this case. It is for the Crown to prove beyond reasonable doubt that this is a case which attracts imposition of a sentence of imprisonment for life in accordance with the statutory criteria in s.61(1) Crimes (Sentencing Procedure) Act 1999. The Crown has not submitted that such a finding should be made in this case and that submission is an appropriate one. A determinate sentence of imprisonment is appropriate in this case.

97. This was a crime of murder of marked objective gravity. A young man was brutally murdered as a result of the Offender’s wounded feelings and sense of dishonour, and his obsessive and controlling conduct towards his wife. The Offender proceeded to trial as was his right. He is not entitled to any discount as a result and he has not demonstrated any remorse. I bear in mind the Offender’s age in fixing a term of imprisonment.

98. The Crown submitted that the sentence for this offence ought commence on 7 October 2016, the date when the Offender’s sentence on the firearm offences expired. Those offences involved entirely separate criminality. I have considered whether the present sentence should be accumulated upon that sentence and if so, to what extent. I have regard to the totality principle given the existence of this earlier sentence. Having done so, I am satisfied that the sentence to be imposed for this offence should commence on 7 October 2016.

99. Having regard to all factors relevant to the determination of sentence, I am satisfied that a sentence of imprisonment for 32 years is appropriate in this case. I make a limited finding of special circumstances, having regard to the Offender’s age and the totality issue given the pre-existing sentence, and propose to fix a non-parole period of 23 years. I am satisfied that this is the minimum period of custody which the Offender should serve for this offence having regard to all factors relevant to sentence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65].

100. As the Offender is convicted of a “serious violence offence”, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006. I ask the Offender’s solicitor to undertake this task on the Court’s behalf.

101. For the crime of murder, you are convicted and sentenced to imprisonment for a term of 32 years comprising a non-parole period of 23 years commencing on 7 October 2016 and expiring on 6 October 2039, with a balance of term of nine years commencing on 7 October 2039 and expiring on 6 October 2048.

102. The earliest date upon which the Offender will be eligible for release on parole is 7 October 2039.

**********

Decision last updated: 15 November 2019