R v AKB (No. 8)

[2018] NSWSC 1628

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v AKB (No. 8) [2018] NSWSC 1628
Hearing dates:	7 September 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Before:	Davies J
Decision:	The offender is sentenced to imprisonment for a period of 36 years commencing 18 October 2016 and expiring on 17 October 2052 with a non-parole period of 27 years expiring on 17 October 2043.
Catchwords:	SENTENCING – murder – domestic violence-related – where offender introduced accelerant to bedroom of wife and prevented her from escaping subsequent fire – offence well above the mid-range of objective seriousness – aggravating factors – gratuitous cruelty – presence of children – home of deceased – prospects of rehabilitation unfavourable given continuing denial of responsibility – whether life sentence should be imposed – Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) – community interest in protection and specific deterrence satisfied by lesser sentence considering age of offender at earliest date of release made re-offending unlikely – minimal planning – consistency in sentencing for spousal murders – life sentence not imposed
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) s 61 Migration Act 1958 (Cth)
Cases Cited:	Alseedi v R [2009] NSWCCA 185 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Gonzales v Regina [2007] NSWCCA 321; (2007) 178 A Crim R 232 Hiron v R [2007] NSWCCA 336 Imbornone v R [2017] NSWCCA 144 Lowe v The Queen (1984) 154 CLR 606 R v Archer [2015] NSWSC 1487 R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 R v Qutami [2001] NSWCCA 353 R v Twala (Unreported – NSWCCA 4 November 1994)
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Crown [AKB] (Offender)
Representation:	Counsel: C Maxwell QC & R Kotsis (Crown) C Davenport SC (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Offender)
File Number(s):	2016/311049
Publication restriction:	Nil

REMARKS ON SENTENCE

1. In the early morning of 18 October 2016 the offender’s wife burnt to death in the bedroom of her home at 2/33 Clement Street, Guildford. Her husband, the offender, was charged with the deceased’s murder. The Crown case was that the offender introduced accelerant into the bedroom and started the fire. The Crown case was also that when the deceased endeavoured to escape from the room through the door into the hallway of the house the offender actively prevented her from doing so.

2. The offender stood trial before a jury of 12 and me. On 25 July 2018 the jury found him guilty of murder. He now stands to be sentenced for that offence.

3. The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

4. The Crown submits in the present case that the present offence is within the worst case category of murder and that a sentence of imprisonment for life ought to be imposed.

The facts

5. The offender and the deceased were married in Iran in 2005. The deceased was aged 16 years and the offender was aged 32 years. Shortly after the marriage they moved to Australia. There were two children of the marriage. The elder, whom I shall refer to as WB, was born in 2007 and the younger, whom I shall refer to as MB, was born in 2010.

6. The relationship between the deceased and the offender in the years prior to the deceased’s death had deteriorated. The deceased complained to a number of friends and members of her family overseas that she and the offender had been regularly arguing, that the offender was often angry with her, and that the offender had been restrictive of her freedom and movements. By 2015 the deceased had told at least one of her friends that she was unhappy in the marriage and wanted a divorce but the offender would not allow it. In March 2016 the deceased travelled to Germany to visit her parents. She also told them that she was very unhappy in her marriage and wanted to divorce the offender. The deceased and the offender were no longer sleeping together. The offender said that that was because he had injured his back in a motor vehicle accident and he needed to sleep on the living room floor.

7. After the deceased returned from Europe in early October 2016 she placed her profile on a dating app, although neither the name she went under nor a number of her details was correct. Through that dating app she met a man named Majid Hassanloo. They saw one another a few times and then formed an intimate relationship. On the day before her death they organised an apartment for the deceased to move into, although not with Mr Hassanloo.

8. The offender was aware that the deceased intended to leave him. The evidence from both of the boys was that the offender and the deceased had argued on the Sunday night before her death, 16 October, and the argument was about Viber. I accept beyond reasonable doubt that the offender accessed the deceased’s Viber app on her phone. Mr Hasanloo and the deceased exchanged messages through Viber which would have told the offender, if he had seen them, that the deceased had met someone whom she was seeing. However, the deceased also used Viber to communicate with her family and, maybe, with some of her friends.

9. I have no doubt that the offender came to realise that the deceased intended to leave him. That is confirmed by the offender’s visit to the Department of Human services on the day before the fire where he was making a claim for a benefit, on the basis that he was separated. However, I cannot be satisfied to the required standard that he knew the deceased was seeing Mr Hasanloo. The arguments reported by the boys may well have been triggered by information on Viber demonstrating that the deceased intended to leave the offender and not that she was seeing anyone.

10. On 17 October 2016 the deceased went to her bedroom at about 9 or 9:30pm. The boys went to bed at about 10:30pm in the bedroom adjoining the deceased’s room. The offender claimed that he went to sleep in the lounge room at about 11:15pm.

11. At some time around 3:30am a number of neighbours were awakened by screaming from the house occupied by the family. The neighbours observed that the house was on fire. At 3:34am the deceased, using her mobile telephone rang triple-0 and said “Call the police”. The Crown suggested that other words could be heard from the deceased including “You’re killing me”. Except as it records the operator’s voice, the quality of the phone call is poor. I cannot be satisfied beyond reasonable doubt that the deceased said the words “You’re killing me”.

12. At about the same time, the boys were awakened by hearing their mother calling out their names. They went to the door to their mother’s bedroom where the offender was standing. WB said that he tried to open the door to the bedroom but his father wouldn’t let him. He said his mother was trying to get out of the room through the door but his father kept pushing her back with his hand and with the door. At one point when his father pushed the deceased, WB lost his footing and fell near the fire. He said his father then did something to the door and WB couldn’t open it anymore.

13. MB gave evidence that he said to his father “Get mum out and let her go outside” but his father would not, because his mother and WB had annoyed his dad.

14. I accept the evidence of WB and MB beyond reasonable doubt that the offender prevented the deceased from leaving the bedroom by pushing her back into the room and by closing the door.

15. It was only after those events occurred at the bedroom door that the offender took the two boys outside the house. After that had been done, the offender then obtained his phone and made a triple-0 call himself regarding the fire. The deceased’s triple-0 call, made at 3.34am, lasted 4 minutes and 13 seconds. Since WB’s evidence was that his mother was at the bedroom door trying to get out, the only reasonable inference is that the deceased made the triple-0 call when she was unable to leave the room and not before, and while the offender was outside her room. I am satisfied that he heard her screaming. Her voice falls silent during the call. The offender’s triple-0 call was made at 3.38am, more than a minute after she ceased screaming. He must have known by the time he made that call that his wife was either dead or incapacitated.

16. Subsequently, crime scene officers carried out a close inspection of the property and did so with the assistance of specially trained dogs to detect whether or not any accelerant was to be found. The evidence, which I accept, is that the fire started in the deceased’s bedroom at a place close to the foot of the bed near where an electric bar heater was located. I accept also that accelerant was found on what may have been a rug or some other material which was located near where the fire was found to have started. Some accelerant was also found at a place in the living room of the house where the offender slept.

17. No one was able to say precisely how the fire started. It may have been by the introduction of a match to the material containing the accelerant or it may have been as a result of the bar heater igniting the fumes from the material into which the accelerant had been introduced. It is not necessary for me to determine precisely how the fire started. However, I accept beyond reasonable doubt that the offender introduced the accelerant into the bedroom and was responsible for the fire having started.

18. The deceased’s body was found in the rubble in her bedroom between the bed and the window on the outside of which were metal bars. The deceased died from thermal injuries. The level of her carbon monoxide saturation was considerably below what would have been needed to kill her from that cause.

19. The offender told police and ambulance officers that he tried to save his wife but he could not find her in the room. He also denied in his ERISP that he caused the fire. Those were lies.

Objective seriousness

20. The Crown contends that the murder is in the worst category. In R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19, the Court of Criminal Appeal said at [50] that s 61 of the Crimes (Sentencing Procedure) Act should be given a purposive application, and that such a sentence is required if the culpability is so extreme that the community interest in the combined effect of retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. The Court said further that the absence of one or more of those matters might still lead to the conclusion that the level of culpability was so extreme that the community interest could only be met through the imposition of a life sentence, but that the absence of one or more of those indicia would make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated.

21. In R v Twala (NSWCCA, 4 November 1994, Unrep) the Court said that in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime.

22. The Crown submitted that the following matters demonstrate that the present offence is within the worst category of murder:

(a)   The offender became aware that the deceased was having an affair

with another man and formed an intent at that time to kill the deceased;

(b)   The murder was planned and premeditated;

(c)   The method used to kill the deceased was torturous and involved gratuitous cruelty;

(d)   The offender killed the deceased in the presence of their two young children, and knowing that as a consequence they would be deprived of their mother;

(e)   The offender prevented WB from helping his mother to escape;

(f)   The offender killed the deceased in her own home where she was entitled to feel safe;

(g)   The offender pretended that he attempted to save the deceased;

(h)   The offender encouraged WB to say the fire was accidental; and

(i)   The offender has shown no contrition or remorse.

23. I have already indicated that I cannot be satisfied beyond reasonable doubt that the offender had become aware that the deceased was having an affair. Nor can I properly conclude when it was, prior to the fire that the offender intended to kill the deceased. The evidence does not support a conclusion that the offender encouraged WB to say that the fire was accidental. What WB said was that his father told him that his pushing of the deceased back into the room was accidental when WB saw that it was on purpose.

24. The murder of any person is intolerable and unacceptable, but the circumstances of this murder can only be described as confronting, shocking and gruesome to a marked degree. It is difficult to imagine the horror the deceased must have experienced in her last minutes alive when she was unable to escape from the fire in her room, with the knowledge that it was her husband who was preventing that, and with the knowledge that at least her eldest son was a witness to what was happening. I am satisfied beyond reasonable doubt that the offender intended to kill the deceased. He knew that she could not escape out the window of the bedroom because there were metal bars on the window. He actively prevented her from leaving by the only door from the room.

25. The murder was seriously aggravated by having been carried out in the presence of the two children of the offender and the deceased, and in circumstances where the offender actively prevented WB from trying to save his mother. It was aggravated by having been committed at the deceased’s home where she was entitled to feel safe. It involved gratuitous cruelty inasmuch as the deceased was burnt to death whilst being prevented from escaping from the fire. It involved planning and preparation by reason of the introduction of petrol to the bedroom. I cannot find that it involved a grave risk of death to the two boys but it did involve a risk of injury to them where their bedroom adjoined the bedroom where the offender had caused the fire to occur.

26. I am not, however, persuaded that the level of culpability in the commission of this offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. A number of matters contribute to that view.

27. First, the murder arose from the relationship between the deceased and the offender, and from the offender’s perception of how that relationship ought to have worked in terms of his desires and beliefs about the marriage. The evidence justifies a conclusion that he desired to have control over the deceased and that the tension in the relationship arose from the resistance of the deceased to that control.

28. It needs to be made quite clear that marriage or a similar relationship gives no right to one party to control the other. I would echo the words of Wilson J where her Honour said in R v Archer [2015] NSWSC 1487 at [174]:

Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders… .

As the cases which come before this Court so often demonstrate, those murders and other acts of violence occur because the woman will not bend her will to the man. That is what happened here. The Court must by the sentences imposed in these cases denounce such behaviour, because women should be able to feel safe and free from that control.

29. However, although a severe sentence should be imposed, the first issue to consider is whether community protection is a significant matter in the present case. This was a murder committed, not at large against a person unknown to the offender, by a person with no prior criminal record. I do not mean to suggest thereby that the murder of a spouse or a partner is any less serious than the murder of a stranger. However, it is a matter which is relevant to the issue of community protection.

30. The offender is now aged 45 years. Any determinate sentence imposed upon him will result in his being held in custody for a substantial period of time. He will be a relatively old man by the time of his release. Whilst I accept the submission of the Crown that it is difficult to predict future dangerousness, there is much to be said for the submission of the offender’s senior counsel, Ms Davenport, that the notion of the offender finding another wife on his release and treating her in a similar way is fanciful. The statistics show, and some of the protocols used for assessing the risk of re-offending for high risk offenders all point to, the lower likelihood of offending by older aged persons, even those who have offended in their youth and middle age. That is the more so here when the offender has no prior record. Of course the community needs to be protected from this offender for a substantial period of time, but that will occur in any event.

31. Secondly, and not unrelated to the first matter, whilst I accept that both specific and general deterrence are important factors in sentencing for murder in a domestic setting (Hiron v R [2007] NSWCCA 336 at [32]), because of the view which I have reached about the offender’s risk of reoffending, specific deterrence is not a significant consideration. On the other hand, I accept, in accordance with authority, that general deterrence must be given considerable weight.

32. Thirdly, although this offence involved planning, inasmuch as petrol had to be obtained and introduced into the fabric where it was ultimately found, the evidence does not permit me to find beyond reasonable doubt that the planning commenced earlier than the day prior to the fire, that is, Monday 17 October. The Crown submitted that whether the planning commenced a week before or the night before is not material. It seems to me to be of some relevance that the only time I can be certain the offender knew the deceased was going to leave him was on the Sunday night when he accessed her Viber, and they argued about that matter. In that sense planning was minimal.

33. Finally, although I accept that the Court of Criminal Appeal in Gonzales v Regina [2007] NSWCCA 321; (2007) 178 A Crim R 232 at [175] resisted the characterisation of family or domestic killings as a discrete category of murder, the Public Defenders’ sentencing table concerning the killing of a female partner is a useful information tool for the consideration of the sentence in the present case. That table contains a helpful summary of cases from 1991 to the present where a female partner has been murdered whether in conjunction with others or not. In only two cases out of 93 has a life sentence been imposed, and both cases involved the killing of a child or children in addition to the killing of the female partner. Significantly, the life sentence in each of those cases was imposed not for the murder of the female partner but for the murder of the child or children. That seems likely because of the abhorrence felt by the community for a parent killing their own child.

34. Whilst I accept entirely that each case must be judged on its own facts, an assessment of all of those cases indicates that without anything more, the murder of a partner has not ordinarily been considered the type of case in respect of which s 61 has application. Consistency in sentencing is an important principle.

29. In Lowe v The Queen (1984) 154 CLR 606 Mason J (as his Honour then was) said (at 610):

Just as consistency in punishment — a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.

36. In Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan & Kiefel JJ said at [28]:

Consistency in the punishment of offences against the criminal law is "a

reflection of the notion of equal justice" and "is a fundamental element in any

rational and fair system of criminal justice".

37. This was a very bad murder, but the limited planning, the absence of the need to give significant weight to community protection, and the fact that a lengthy sentence will meet the need for specific deterrence, mean that the community interest in retribution, punishment, community protection and deterrence can be met by other than the imposition of a life sentence. Apart from a consideration of those matters, I would not have held that this murder fell into the worst case category of murder.

38. Senior counsel for the offender accepted that the offence was above the mid-range. I consider that the objective seriousness of the offending is well above the mid-range.

Subjective matters

39. The offender did not give evidence at the trial or at the sentence hearing.

40. The offender was born on 1 January 1973 in a remote rural area in Afghanistan. The information concerning his background is found in a report from a clinical psychologist, Sam Borenstein, of 21 August 2018 which is corroborated to some extent by the findings of the Refugee Review Tribunal of 19 February 2004. Although statements made to third parties such as doctors, psychologists and psychiatrists should be treated with considerable circumspection and generally given little or no weight unless otherwise corroborated (R v Qutami [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144 at [57]) I consider in the present case that I can accept what appears in Mr Borenstein’s report concerning the offender’s background, to the extent that it is consistent with evidence that he gave to the Refugee Review Tribunal and was accepted by it in its judgment. The same cannot be said for matters told to Mr Borenstein in relation to the offending.

41. The offender was one of eight children. He was brought up in what appears to be great poverty. His family life was defined by day to day survival.

42. His father was an important man in the village and was a member of a political party. He and his family were affected first by the invasion of Afghanistan by the Soviet Union and later by the Mujahedeen Taliban. The family were of the Hazara clan which was a minority within Afghanistan. They were subject to marginalisation and discrimination. Mr Borenstein described the offender’s life as having been defined by day to day survival.

43. At the age of 25 the offender escaped from the Taliban into the mountains and, with some assistance, made it to Pakistan. There he met a people smuggler and came to Australia via Indonesia with others on a boat. Those on board were picked up by an Australian Navy ship and taken to Darwin. He remained in detention for three months but was released on a temporary protection visa. Ultimately, as a result of the decision of the Refugee Review Tribunal in February 2004 he was accepted as being entitled to a protection visa under the Migration Act 1958 (Cth). He ultimately became an Australian citizen on 14 June 2007.

44. Since being given permanent residency in 2004 the offender has had a variety of work including work in an abattoir and with a pallet company. He subsequently purchased a light truck, and collected and sold scrap metal. When he returned to Sydney after marrying the deceased he obtained a taxi driver’s licence and had worked in that capacity ever since.

45. Mr Borenstein found that the applicant suffered from chronic post-traumatic stress disorder from his time in Afghanistan and thereafter until he was granted permanency in Australia. Mr Borenstein said his presentation at the interview was consistent with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood with symptoms of post-traumatic stress. Mr Borenstein made no link between those conditions and the offending.

46. As I have mentioned, the offender has no prior convictions. Whilst that has some relevance to the consideration of a life sentence in the way I have mentioned, it cannot otherwise mitigate the enormity of this crime.

Remorse, rehabilitation and likelihood of re-offending

47. The offender continued to deny murdering the deceased when he spoke with Mr Borenstein. He volunteered to Mr Borenstein that he tried to save his wife, that when he found her the room was on fire and full of smoke, and he had a hard choice to make, whether to save her or rescue the children. The jury clearly rejected that account which largely mirrored what the offender said in his ERISPs. By reason of WB’s and MB’s evidence, I also reject that account. The offender made no effort to rescue the boys until the deceased’s screaming ceased and she no longer tried to escape the burning room.

48. He denied to Mr Borenstein knowing that the deceased wanted to leave the marriage and denied any knowledge of her seeing another man. He claimed to have learnt about Mr Hassanloo for the first time in Court. His denial of knowing that the deceased wanted to leave the marriage is shown to be untrue by his visit to the Department of Human Services on the day before the fire to inform them that he and the deceased had separated.

49. What he said to Mr Borenstein demonstrates that he does not show remorse for what he did.

50. The Crown submitted that the commencement point of making someone less dangerous, and therefore less likely to re-offend, is rehabilitation, and the first step in rehabilitation is an admission by the offender that he has committed the offence.

51. Ms Davenport pointed to what was said by Giles JA in Alseedi v R [2009] NSWCCA 185 at [65], where his Honour said that maintaining one’s innocence is not necessarily inconsistent with an unlikelihood that he would re-offend. His Honour said that there could be rehabilitation without confession.

52. Senior counsel said that there may be reasons why, in the offender’s mind as far as his relationship with his sons is concerned, there is a need to deny his involvement because of some misguided view that it may impact upon their view of him. That may be so, but I find it difficult to see how he can be fully rehabilitated without an acknowledgement of the shocking thing he did to his wife, and the impact that it has, and will continue to have, on his two sons as well as on the deceased’s family.

53. I consider that his prospects of rehabilitation are only average until he can accept what he did and that it was wrong, although I think it is most unlikely that he will re-offend.

Victim Impact Statements

54. I have noted what WB has said in his Victim Impact Statement. WB impressed me as an intelligent and thoughtful boy. It is extremely sad, but entirely understandable, that he now wants nothing to do with his father. That is something the offender will have to live with for the rest of his life.

55. I have read a report from Scott Andrews, a Bereavement Counsellor who has been seeing the two boys every four to six weeks from approximately two months after the deceased died. Mr Andrews considers that both boys are at a high risk for long term complications in their grief process. He said that they will need a regular schedule of professional support for some time.

56. I note what WB says in his statement about how MB is pouring all his feelings onto WB because he has no-one else to lean on. It was clear to me from seeing the boys give their evidence, both what was pre-recorded and their evidence directly to the Court, that they are very close to each other. That may be the one thing which will help to minimise the damage to them from this terrible crime.

57. I have taken WB’s statement into account pursuant to s 28(4) of the Sentencing Procedure Act in determining the sentence to be imposed.

58. I note also the Victim Impact Statement from the deceased’s father, Mr Mohammad Najafi and the effect his daughter’s death has had on his health and the health of his wife. Mr Najafi has experienced exclusion from his Hazara community because of evidence that emerged about the deceased during the trial. Mr and Mrs Najafi are also very concerned for WB and MB, and how they will be cared for and brought up. The Court extends its sincere sympathy to WB, MB, Mr and Mrs Najafi and other members of the deceased’s family.

Sentence

59. I accept Ms Davenport’s submission that the fact that the offender suffers from post-traumatic stress disorder will make prison more onerous for him by reason of that disorder. However, that matter can be given very little weight, not only because of the seriousness of the crime but also because the condition did not appear to prevent the offender from leading a relatively normal existence in terms of employment and social interaction.

60. Ms Davenport accepts that I would not find special circumstances. In the sentence to be imposed, I consider that the non-parole period to be imposed is the minimum time which the offender should serve. To the extent that matters of rehabilitation and re-integration into the community are to be considered, the period of time the offender will be on parole will be more than sufficient to deal with those matters.

61. The offender was arrested and charged on 18 October 2016. He has been in custody since that time. The sentence will commence from that date.

62. AKB, I convict you of the murder of XY. I am obliged to warn you that because you have been convicted of a serious violence offence, the State can make an application before your sentence expires to obtain an order against you under the Crimes (High Risk Offenders) Act 2006 (NSW).

63. Pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) I direct that the offence for which you have been convicted is to be recorded as a domestic violence offence.

64. I sentence you to imprisonment for a period of 36 years commencing 18 October 2016 and expiring on 17 October 2052 with a non-parole period of 27 years expiring on 17 October 2043. You will be eligible for release on parole on 17 October 2043.

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Decision last updated: 02 November 2018