R v Ahmadi
[2013] VSC 293
•5 June 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0086
| THE QUEEN | |
| v | |
| NASIR AHMADI | Accused |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30-31 May 2013 | |
DATE OF JUDGMENT: | 5 June 2013 | |
CASE MAY BE CITED AS: | R v Ahmadi | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 293 | |
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CRIMINAL LAW – Sentencing – Manslaughter arising from argument with spouse – Plea of guilty – Favourable prospects for rehabilitation – TES: 11 years imprisonment – Non-parole period of 7 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr T. Danos | Tony Danos Lawyers |
HER HONOUR:
Nasir Ahmadi, you have pleaded guilty to the manslaughter of your wife, Zara Rahimzadegan, also known as Mandy Ahmadi. No prior convictions are alleged against you.
On 18 December 2011, you telephoned and then attended at the Glen Waverley Police Station and reported your wife as missing. You produced a photograph of her and nominated an address where she had stayed on a previous occasion. You denied to the police that you knew of any reason why your wife might have left or that you had had a fight. In fact, you had killed your wife two days earlier in the loungeroom of the family home and buried her in your back garden. The police subsequently commenced an investigation into Mrs Ahmadi’s disappearance and on 13 January 2012 the Homicide Squad executed a search warrant at your home and located your wife’s body buried in a grave underneath a recently constructed timber deck.
When interviewed by the Homicide Squad, you maintained that your wife was missing, but when confronted with the discovery of her body, you admitted you had killed her because she was going to go to Adelaide with another man. Shortly after that confession, you asked to speak to your two sons. In that conversation, you again admitted that you had killed your wife because, you told them, she was “cheating on you”. You were consequently charged with murder.
You are 48 years old. You were born in Afghanistan, but your family moved to Tehran when you were two. You left school at 10 and, at the age of 14, you were working making shoes. At the age of 23, you were detained by the authorities for 26 months as a result of your political allegiance. You were brutally and severely tortured during that time and eventually, upon your release, you remained at home, bedridden, for 12 months so as to recover from your physical injuries. Three years later, you were once again incarcerated and once again tortured. On this occasion, you were released after nine days when the authorities realised that they had the wrong person.
You met and married your wife Mandy in Tehran in 1994-1995. Recognising that life would be difficult for the two of you in Iran, you and your wife then travelled across the border to Pakistan, eventually making your way to Islamabad, where you were both accepted as refugees with the United Nations High Commissioner. You lived in Pakistan for four years and during this time your eldest son, Kashi, was born. In 1999, you and your family came to Australia as refugees. Your second son, Sheri, was born the following year.
Upon your arrival, you and your wife established a restaurant and bakery in the Dandenong area. You later purchased a house in Rowville, where the family lived for eight years. Initially the business was successful, but subsequently, in 2006, it failed, resulting in you having to sell the family home and move to public housing in High Street Road, Ashwood. You started a painting and decorating business, but a fall from a ladder resulted in an injured shoulder; and thus the painting venture ended and your sole source of income a disability pension.
Your wife became involved in the City Life Church in Dandenong and in 2006 converted to Christianity. You and she became actively involved in the welfare of others. Mrs Ahmadi completed a hair dressing course at the Holmesglen TAFE and became actively involved at a place called The Cornerstone Soup Kitchen in Dandenong, working voluntarily with other asylum seekers, migrants and the needy, working in the soup kitchen, cutting hair, interpreting and assisting others who wished to convert to Christianity.
You were also very active in that same local community and supported your wife in her ministry. You also undertook voluntary work to assist asylum seekers. You drove a large van distributing free food and furniture on behalf of the Cornerstone Soup Kitchen and renovated the building from which the centre operated. You also converted to Christianity and attended the City Life Church and other Christian churches. I accept that the two of you were engaged in charitable work, working voluntarily to assist asylum seekers and others in establishing a life in a new country. Sadly though, the marriage had its tensions and was not without some volatility. It appears that there were frequently arguments at home. It is said that your wife was disappointed in you and distressed at the turn of events that life had taken; from the comfortable existence at Rowville to life in the Housing Commission unit at Ashwood; dependent upon social services.
The depositions reveal that at times you were both heard arguing with each other, and at other times your wife was heard to be angry with you. One witness described Mrs Ahmadi as controlling, and you were also regarded as having a temper. Mrs Ahmadi had complained to friends that you had been violent towards her. Indeed, there were two recorded instances of family violence; one in 2007 when the police took out an intervention order which was subsequently resolved, and another in 2010 when your wife took out an intervention order, but withdrew it on the same day.
There had been separations when Mrs Ahmadi had left the home and, on two occasions in November 2011, you both attended marriage counselling sessions at your church, but you both failed to attend a third appointment in December 2011.
In May 2011, your wife had met a man, also an asylum seeker, who was released from detention in September 2011. They met up again at the Cornerstone Soup Kitchen and became friends. The two of them became involved in setting up a soccer team for Iranian migrants; the three of you often in each other’s company. You, indeed, had your suspicions that Mandy was having an affair with this man, and you had confided as much to several of your friends. Indeed, the relationship had became a sexual one, albeit that aspect was short-lived; Mrs Ahmadi telling the man that the sexual aspect of the relationship was a mistake. It was agreed between them that they would remain only as friends. This conversation is said to have happened on 14 December 2011.
On 16 December 2011, the day you killed your wife, you and she had attended at the soup kitchen to help asylum seekers and the needy with free haircuts and meals. During the course of the morning, Mandy left to collect keys to a hall that was to be used for a Christmas function, and when she returned, the two of you left, briefly went to the hall and then returned home. When you were first spoken to about this matter, you told the police that when you arrived home, your wife and son, Kashi, and some of his friends were there and that you went to the local supermarket to purchase food and drink and left your wife at home, and that when you returned neither your wife, nor Kashi, were present. You maintained that version of events up until 13 January 2012. You produced a receipt which showed that you had attended Woolworths supermarket at about 3.34pm on 16 December. Indeed, CCTV footage showed you in the store for some four or five minutes. You told the police that you had also taken Sheri to Chadstone to pick up a Christmas present and you produced a receipt which showed that at 4.24pm on 16 December, you were at the Myer store in Chadstone. Again there is CCTV footage of that attendance.
Kashi told the police that he had been at home with two school friends when you and your wife arrived home that day, but the boys left shortly after and went to McDonald’s, leaving you and your wife alone at home. This is confirmed by the CCTV footage from McDonald’s which shows the boys arriving at 2.09pm that afternoon. So it is that the events which led to your wife’s death must have taken place some time between approximately 2.00pm and before you went to the supermarket at 3.34pm.
In the days after, you spoke to friends and your wife’s relatives, maintaining that your wife may have run away with another man. You were advised to report your wife’s disappearance to the police, which you did, knowing of course, that your wife’s body was buried in the garden of your home. Indeed, in the two or three days after her death you had constructed the decking over her grave, with the unwitting assistance of your son, Kashi, some of his friends and neighbours.
When the police executed the search warrant at your home they dismantled the deck, removing a layer of concrete and there located, buried in the ground, the body of your wife enclosed in a sleeping bag. When removed from the sleeping bag, your wife was found to be fully clothed with a T-shirt over her face. Her hands were bound across her abdomen with duct tape and her legs were also bound together with duct tape.
As stated previously, the police re-interviewed you and you continued to maintain that you had nothing to do with your wife’s disappearance. However, when confronted with the news of the discovery of her body, you admitted your responsibility. You told the police that you and your wife had argued on your return home and that your wife had told you she did not want to live with you anymore and she was planning to go to Adelaide with another man, leaving you with the children. You told the police that your wife pushed you and you then fought each other. You said that you pushed her onto the couch, grabbed a curtain cord and put it around her neck, applying such pressure until she stopped moving. Ten minutes later, you took your wife’s body into your bedroom, placing it on the floor. It was after you had returned from Chadstone Shopping Centre, later that evening, that you dug the grave and buried your wife.
The police were unable to locate the curtain cord or like which you said you had used to strangle your wife, but they did locate a charger cord on top of a filing cabinet in the bedroom, which the Crown concede was probably what was used. The pathologist was unable to unequivocally determine the cause of death due to the advanced decomposition of the body.
Your wife, Mandy, was 46 years old when she died and the mother of two boys then aged 15 and 11. A Victim Impact Statement was made by Mr Ali Rahimzdegan, Mandy’s brother, and was tendered in evidence. Mr Rahimzdegan describes his sister as touching the lives of everyone she met and that he and his family are devastated by their loss. Mr Rahimzdegan has taken on the care of your younger son, Sheri. Your other son, Kashi, with whom it is said you are now estranged, is living in foster care. Clearly, your actions have had tragic consequences not only for your wife and her family, but also for your sons, who will effectively be without both parents during their adolescence, and without the love and support of their mother in the years ahead.
Mr. Eddy Kam Boon Teck gave evidence on your behalf. He described you as a gentle spirit, generous and sacrificial, while acknowledging that there were tensions between you and your wife. You and she, in his opinion, were an effective ministry, and Mr Teck acknowledged that there is strong support for you in your community. You had told him of your torture and detention in Iran. You have expressed to him your remorse and your sense of helplessness, especially concerning your sons.
Nine testimonials were tendered on your behalf. They all speak very favourably of you and, indeed, your wife Mandy. They speak of your commitment to live a life helping those less fortunate, your very considerable charitable works, your tireless efforts at Cornerstone, and your support of your wife’s endeavours in helping refugees to settle in the community. You are described as a hard and honest worker, striving to give your family the best life you could. Clearly, you enjoy the respect and support of many people in the community who regard your crime as completely out of character.
Dr Anthony Cidoni, psychiatrist, also gave evidence on your behalf and his report was tendered in evidence. You reported to him the history of your detention and torture in Iran and that you had been depressed since the second time you were detained in Iran, but that your symptoms have worsened since your wife’s death. You have suffered insomnia for many years, and this has worsened since being in custody. Nonetheless, you have declined the offer of medication in respect of it. Dr Cidoni diagnosed you as suffering from depressive symptoms consistent with a chronic depressive condition, that is, years of low mood and anxiety symptoms consistent with post-traumatic stress disorder. In Dr Cidoni’s opinion, your failure to report your involvement in your wife’s death relates to your fear of police and authority, such that you are wary of them. This has its origins, Dr Cidoni said, in your previous detention and torture in Iran. That opinion must be placed in the context that you have taken considerable steps to conceal your crime. You maintained the charade of your wife’s disappearance during the four week period prior to the discovery of her body, lying to your sons, family and friends as to her whereabouts and, during this time, all the while the police were actively investigating her disappearance and you were cooperating with them and had spoken to them on many occasions.
Dr Cidoni was of the opinion that there was a high risk that your anxiety and depression will escalate while in custody and that your present incarceration may serve as a trigger to flashbacks to your previous detention and torture. Dr Cidoni said that it would be important for you to have psychological support and anti-depressant medication, but I note in this regard that you have been in custody in excess of 500 days and the only treatment you have been offered and which you have declined was for insomnia. There was, he said, no causal connection between your depression, anxiety and the offence, other than that posed by your history, including the difficulties you have endured since arriving in this country and your depression and anxiety, all of which would have contributed to and affected your ability to cope when confronted with a situation of conflict.
The maximum penalty for the crime of manslaughter is 20 years’ imprisonment. The Crown has submitted that this is a significant example of the crime and the appropriate range of sentence is between 12 to 14 years, with a non-parole period of between 9 to 11 years. Not only did you kill your wife because she wanted to go away with another man, but you then took what the Crown described as elaborate steps to cover your crime: burying your wife’s body; constructing the deck over the grave; lying to your children, family and friends; and maintaining that your wife had possibly run off with another man. It was for those reasons that the Crown regarded your offence as a significant example of the crime of manslaughter.
Mr Danos, who appeared on your behalf, submitted that such a range did not take account of the matters in mitigation. In particular, that this was a spontaneous, unpremeditated act, that you have no prior convictions, have come from a difficult background and suffered significant trauma, which made it more likely that you would exercise poor judgment and, as you have made a significant contribution to the community, your rehabilitation is more likely to be achieved and that in these circumstances, less weight may attach to specific deterrence. I accept that this is so.
However, the sentence imposed must reflect the nature and gravity of the offence here committed. You killed your wife, you say by strangling her, apparently by pulling a cord around her neck until she did not move, which must have been a sustained act, requiring significant pressure, and all because she told you she was going away with another man. I accept that this was a spontaneous and unplanned act, but you then buried your wife’s body and over the ensuing days constructed the decking over the grave, brazenly enlisting the aid of your son, some of his friends, and neighbours, all the while over the four weeks since your wife’s death and before the discovery of her body casting a web of lies about her disappearance. It is in these circumstances that the crime here committed is properly to be regarded as a significant example of the crime of manslaughter.
In sentencing you, I must therefore pass a sentence which serves to punish you and act in denunciation of your conduct, and also give effect to general deterrence so that the community will know that to kill ones spouse or partner in circumstances such as these will be met with salutary punishment. I accept, however, that you are otherwise a person of good character, that you have no prior convictions, that you have made a significant humanitarian contribution to the lives of others, especially asylum seekers and migrants to this country, and that you are well regarded and enjoy the support of your community. For these reasons, your prospects for rehabilitation are, in my view, very favourable indeed and considerations of specific deterrence may therefore be given less weight.
In sentencing you, I also take into account your plea of guilty and give you a discount for it. I do not accept that because the cause of death could not be unequivocally established, your plea carries more weight. You made admissions to killing your wife not only to the police, but to your children. Her body was found buried in the garden of the family home. It could not be said that, were it not for your plea, the Crown could never have established its case. Having said that, you are nonetheless entitled to and I give you a full discount for your plea, reflecting as it does the utilitarian value of it and that by reason of your plea, you have saved the witnesses, and in particular your son, Kashi, the ordeal of having to give evidence. I take into account also that your plea of guilty is an indication of your remorse.
In sentencing you, I take into account all of the matters which go in your favour, including your very difficult early life in Tehran, the abuse you suffered at the hands of the authorities in those years, the difficulties of settling in to your new life and the reversals that you have suffered here, all of which may have contributed to what Dr Cidoni described has made you more vulnerable to disruption in terms of your “psychosocial functioning”.
So as to address your prospects for rehabilitation, I propose to accede to your counsel’s submission that there should be a greater disparity between the head sentence and non-parole period that would otherwise be imposed
Accordingly, for the crime of manslaughter, you are convicted and sentenced to 11 years' imprisonment. I order that you serve a period of 7 years' imprisonment before becoming eligible for parole.
I declare that you have already served by way of pre-sentence detention a period of 509 days and I declare, pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have sentenced you to 13 years imprisonment with a non-parole period of nine years imprisonment. I further declare that you have already served 509 days of that sentence of imprisonment.
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