R v ABRAHIMZADEH

[2012] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal)

R v ABRAHIMZADEH

[2012] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

21 September 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CONTRITION

Application for permission to appeal against sentence – permission refused by single Judge of this Court – applicant pleaded guilty to murder on day 11 of a trial by jury – applicant sentenced to life imprisonment with a non-parole period of 26 years – (1) whether the sentencing Judge erred in finding that the offence was premeditated – (2) whether the sentencing Judge erred in not taking into account, or not giving sufficient weight to, the applicant’s contributions to the community and his cultural background – (3) whether the sentencing Judge erred by giving too much weight to the applicant’s lack of contrition.

Held: (1) There was sufficient evidence for a finding that the offence was premeditated – no reason established to interfere with the sentencing Judge’s finding – (2) the sentencing Judge referred to both the applicant’s community contributions and his cultural background –it has not been established that the applicant’s cultural background is a mitigating factor in any event – no error is established – (3) the sentencing Judge did not err in finding the applicant was not remorseful – it is not established that the sentencing Judge treated the lack of contrition as an aggravating factor – no error is established. Permission to appeal refused.

Bail Act 1985 (SA) s 7, s 9, s17A, s 19, s 19(3), referred to.
The Queen v Stewart (1984) 35 SASR 477, discussed.

R v ABRAHIMZADEH
[2012] SASCFC 112

Court of Criminal Appeal:  Kourakis CJ, Blue and Stanley JJ

1. THE COURT:          On 21 March 2010 the applicant murdered his wife at a function held at the Adelaide Convention Centre by the Persian community to celebrate Persian New Year.  The applicant stabbed his wife in the presence of his eldest daughter and her friend.  The murder was the culmination of the escalating infliction of violence on his wife over many years.  The applicant pleaded not guilty at his trial. However, the applicant changed his plea to guilty in the course of his cross-examination.  After hearing submissions on sentence the Judge imposed a non-parole period of 26 years.  The applicant applied for permission to appeal before a single Judge of this Court.  Permission was refused.  The applicant has renewed his application before the Full Court.

2. The applicant is now aged 57 years and was aged 55 years when he killed his wife.  He was born in Afghanistan where he was trained as a lawyer.  He moved to Iran when he was 23 years old to escape persecution by the communist government which was installed after the Russian invasion of Afghanistan.  He worked as a labourer and tailor in Iran but because he was there unlawfully he was periodically interned and deported to Afghanistan.  He continued to return to Iran because of the continuing political upheaval in Afghanistan and to earn a living.  In Iran he supplemented his income as an employee by selling goods on the black market.

3. In 1983, in Iran, the applicant met and married Zahra, the victim of this offence.  Their eldest daughter Atena was born in Afghanistan in 1987.  His son Arman was born two years later.  The family escaped to Australia in 1997 after the applicant managed to obtain identity documents, but not a passport, during a dangerous visit to Afghanistan at about the time the Taliban came to power.  He was detained during that visit and, whilst others detained with him were summarily executed, he was released.  Soon after his arrival in Australia, the applicant’s youngest daughter Anita was born.

4. It is the great tragedy of this case that, even though through the applicant’s courage and determination his family found refuge in Australia, the scars he carried from his earlier traumatic life ultimately contributed to his brutal killing of his wife and have left his children, effectively, without both parents.

5. In Australia the applicant worked very hard.  He and his wife took out a substantial loan and established a pizza bar.  He drove taxis.  He worked tirelessly as a caseworker for the Migrant Resource Centre of South Australia and established language schools for the young children of new arrivals to this country.  The many written references and the character testimony given on the sentencing hearing attest to the invaluable support he gave to many refugees who were settled in Adelaide.

6. However, the care and concern the applicant showed the refugees he helped settle in Adelaide stands in stark contrast with the hostility he bore against his wife.  There were regular fights and the violence to which he subjected his wife escalated over time.

7. The applicant often slapped his wife around and cursed her and her family.  In the year 2000 there was a particularly violent assault in which he dragged his wife by the hair and pushed her onto a glass window.  She cut her hand and, as she lay bleeding and unconscious on the floor, the applicant kicked her in front of her children.  The assaults on his wife increased after she returned from visiting Iran in 2007.  The cause of much of the applicant’s hostility was his wife’s apparent refusal to sell a property in Iran in order to relieve the family’s financial burden.

8. In 2009, after an argument about rumours circulating in the Persian community, the applicant threatened to kill his wife.  Only the courageous efforts of his son prevented him from taking a knife from the kitchen drawer to carry out his threats.  The applicant’s family left the matrimonial home after that incident.  They hid in a motel and community shelters before finding accommodation which they kept secret from the applicant.  Zahra initiated divorce proceedings.

9. The applicant’s three children testified at his trial as to the terror and violence under which the family lived.  In cross-examination the applicant’s counsel put to them that they were lying.  The Judge found beyond reasonable doubt that the children’s evidence was accurate.  For that, and other reasons, the Judge concluded that the applicant was not remorseful.

10. The applicant saw his children on arranged access visits after they had left the matrimonial home.  On those occasions, he repeatedly made threats to them that he would take revenge on their mother.

11. On 21 March 2010 Zahra, with her daughter Atena and Arman’s girlfriend, attended the Persian New Year’s function at the Convention Centre.  When Zahra bought the ticket, she had requested that she be seated at a table with other women only.  The applicant arrived 20 minutes later.  It was unusual for the applicant to attend a Persian community function because he was Afghani.  The applicant was seated at Zahra’s table.  The Judge found that it was a mere coincidence that the applicant’s ticket was for the same table.  The explanation for the coincidence may be that the applicant had arranged for a woman to buy the ticket from a grocery store from which the tickets were available.  Nonetheless the applicant’s decision to take his seat at the table and to remain at the Convention Centre at all was ominous.  He breached a restraining order made against him just a fortnight earlier by so doing.

12. Zahra became upset when the applicant took his seat. She asked the applicant to leave and she walked away from the table.  The applicant eventually took a seat at another table.

13. During the night, the applicant spoke to his daughter Atena.  He asked her to tell Zahra to discontinue the divorce proceedings.  The applicant also asked Atena to arrange for him to talk to his wife in private.  Atena became frightened.  She arranged for security guards to escort her and her mother to their car.  Before they left, Atena left her mother to join others on the dance floor.  The applicant rushed at Zahra’s table brandishing a knife which he had brought with him in the inside pocket of his wind jacket.  He stabbed his wife eight times in the presence of many guests and his daughter.  He stopped only when he was restrained by others.

14. The Judge found that the applicant’s conduct was premeditated and deliberate.  The evidence overwhelmingly supports that conclusion. 

15. The applicant gave evidence that he did not know that he had the knife in his jacket pocket when he first entered the Convention Centre.  He explained that he had kept the knife in his car for protection after an incident in which he was assaulted in the course of driving a taxi.  He explained further that he had sold his car the day before and had placed the knife in his jacket.  He did not notice that it was still there when he put his jacket on in the morning of 21 March.  The applicant testified that he did not realise it was there until part way through the night.  The Judge rejected the applicant’s evidence.  He found beyond reasonable doubt that the applicant knowingly brought the knife with him with the intention of using it.

16. The first limb of that finding was overwhelmingly supported by the evidence.  The knife’s handle protrudes well above the hem of the inside pocket.  The pocket is loose allowing the knife to move freely around.  It is glaringly improbable that the applicant was unaware of its presence.  Witnesses described the applicant keeping his jacket zipped up whilst he was in the Convention Centre, even though it was a warm night.  Had the jacket not been zipped up, the knife is likely to have been noticed by other guests. The inference which can be drawn from the objective facts to which we have just referred is strengthened by the rejection of the applicant’s fanciful explanation by the Judge.  This Court can not interfere with that adverse finding against the applicant’s credibility which was plainly based on the Judge’s assessment of his oral testimony. 

17. The second limb of that finding can be inferred from the first.  It is difficult to imagine a reason for bringing the knife into the Convention Centre, other than because the applicant intended to use it.  There was also other evidence which supported that inference. 

18. First, the applicant had a motive to harm his wife.  He had been deeply and obsessively hostile and violent to his wife for many years.  In the year leading up to the murder, he had become angry that his wife had left him and that she had initiated divorce proceedings.

19. Secondly, statements made by the applicant at the time of the attack, and in a letter to his children after his arrest, showed that he was overwhelmed by a hatred towards his wife for what he perceived were the wrongs and dishonour she had done him.

20. Thirdly, the applicant had attended another Persian festival just days before.  The inference which can be drawn from that evidence is that he was stalking his wife. 

21. The applicant nonetheless contended that the finding of premeditation should be set aside because it is inconsistent with other objective circumstances.  His counsel referred to the improbability of the applicant planning to kill his wife in such a public and busy place, in circumstances in which he was likely to be prevented from accomplishing his purpose and, even if he were to succeed, likely to be apprehended.

22. The applicant’s submissions fail to address the applicant’s deep emotional motivations.  Concerns about apprehension are often of secondary importance when a person is in the grip of anger.  It must also be remembered that the applicant’s opportunities to harm his wife were rare.  He did not know where his wife resided.  Further, the evidence of Atena showed that the applicant had hoped to manoeuvre his wife away from other people.  The fact that he did not engage in a “hit and run” mission of the sort postulated by the applicant’s counsel is consistent with biding his time for the moment when he might confront her alone.  Nor is it unusual for a person in the applicant’s position to hesitate in the face of the enormity of their intended crime before launching the attack.  The objective circumstances on which the applicant relies do not suggest the attack was spontaneous.

23. There is another circumstance on which the applicant’s counsel relied in his challenge to the Judge’s finding.  It is not an objective circumstance but arises out of the applicant’s evidence.  The applicant claimed in his testimony that after he took his seat at another table, he was asked to leave and insulted by the others on that table.  They called him an “Afghan donkey”.  It can be accepted that the applicant would have been deeply humiliated by such an insult if it was made.  The Judge made no finding on the issue.   That incident occurred over an hour before the murder.

24. Even if it be accepted that the applicant was insulted, that evidence does not detract at all from the Judge’s finding that his conduct was premeditated.  In those circumstances the fact that he remained at the Convention Centre even though it was plain he was not wanted there, supports the Judge’s finding that the applicant’s intention was to harm his wife.

    Sentencing Consideration

25. The minimum non-parole period which must be imposed on conviction of an offence of murder, absent special circumstances, is twenty years.  It is not suggested that there were any special circumstances in this case.  Sentences close to the minimum non-parole period may be imposed for offences of murder in the least serious category.  In The Queen v Stewart,[1] King CJ included in the least serious category unpremeditated killings occurring during a sudden quarrel or emotional disturbance and cases in which there was only an intent to do grievous bodily harm.[2]  To that might be added offences committed by persons other than the perpetrator of the killing who are convicted on the basis of what is commonly referred to as extended joint enterprise.  In Stewart, King CJ included within the most serious category multiple murders, planned murders committed by terrorist or criminal organisations and murders committed in the course of sexual offending.  King CJ placed murders which are the culmination of a course of domestic violence between those two categories for the following reasons:[3]

    An important factor to be considered by a judge in fixing a non-parole period in a case such as the present is the aspect of deterrence to other people who may be tempted to commit similar crimes. There are many people in the community, including the aboriginal community, who find themselves linked in life by marriage or some other personal relationship or association with persons who are prone to violence and particularly with persons who are prone to violence in consequence of sexual jealousy or similar kinds of emotion. The safety of those persons depends to no small extent upon the persons who are prone to violence understanding that to give way to their violent inclinations in a way which causes death is likely to result in their spending the greater part of their lives in prison. It is only that knowledge which is likely to provide any deterrence to persons so disposed and, therefore, likely to provide any safety to those whose lot in life it is to be in personal relationships with them. There is therefore a very grave responsibility upon the Court in fixing a non-parole period in crimes of this kind.

    [1] (1984) 35 SASR 477.

    [2] (1984) 35 SASR 477 at 479.

    [3] (1984) 35 SASR 477 at 479.

26. In the circumstances of this case, and applying the approach outlined by King CJ in Stewart, the non-parole period fixed by the Judge was a merciful one.  It is not arguable that the sentence is manifestly excessive.  Even though on one reading of the Notice of Appeal it might be understood to raise that ground of appeal, at the hearing of the appeal counsel for the applicant did not contend that the sentence was, in itself, manifestly excessive.

    Appeal Grounds

27. The applicant’s Notice of Appeal complained of a number of errors of reasoning in the course of the exercise of the sentencing discretion.  Those errors were distilled to three in the course of the submissions.

28. First, the applicant contended that the Judge erred in finding that the offence was premeditated.  For the reasons already given, there was ample evidence upon which the Judge could make that finding.  We too would find on the evidence, to which we have referred, that the offence was premeditated.  Even if we were to entertain a doubt on the issue, the Judge had the advantage of assessing the applicant’s testimony.  There is no reason to interfere with His Honour’s findings of fact having regard to the advantage he enjoyed as the trial Judge.

29. The applicant’s counsel conceded on the hearing of the appeal that, if he failed on the premeditation ground, the other two errors of which he complained were not sufficient, alone or together, to warrant this Court interfering with the sentence.  For the sake of completeness, we will deal with them briefly.

30. Secondly, the applicant complained that the Judge gave insufficient weight to the applicant’s contributions to the community and to his ethnic background. The Judge expressly referred to the applicant’s work in the community.  The applicant called witnesses who testified to his good work, to which the Judge also referred.  The Judge was obviously well aware of the applicant’s contribution to the community.

31. The Judge also expressly referred to the applicant’s cultural background.  In any event, the applicant’s counsel did not identify just how the applicant’s cultural background was a mitigating factor in sentencing for the murder of his wife.  No error has been established in relation to the second ground argued.

32. Finally, the applicant complained that the Judge gave too much weight to the applicant’s lack of contrition.  Insofar as this submission was to the effect that the Judge erred in not finding the applicant to be contrite and not treating contrition as a mitigating factor, the Judge was correct to find that the applicant was not remorseful.  The conduct of the trial more than adequately demonstrated that.  A letter which he wrote to his children removes any doubt on the question.  The letter expressed remorse and sought forgiveness in two lines at the beginning of the letter.  Those two lines are followed by ten pages in which the applicant paints himself as the victim and attempts to justify and excuse his conduct. 

33. Insofar as this submission was to the effect that the Judge treated lack of contrition as an aggravating factor, there is nothing in the Judge’s reasons, understood in their full context, which suggests that His Honour treated the lack of contrition as an aggravating factor.  No error has been established in relation to the third ground argued.

34. We refuse permission to appeal.