R v Fazah
[2014] NSWSC 231
•13 March 2014
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: R v FAZAH [2014] NSWSC 231 Hearing dates: 14 February 2014 Decision date: 13 March 2014 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: For wound with intent to cause GBH, sentenced to imprisonment for 7 years, NPP 5 years, from 1.1.11. For murder, sentenced to imprisonment for 24 years, NPP 18 years, from 1.1.13. Aggregate sentence 26 years, NPP 20 years, from 1.1.11.
Catchwords: CRIMINAL LAW - sentence - murder of offender's 2 year old daughter, wounding of his wife with intent to cause her grievous bodily harm - spontaneous attacks - background of exposure to war in Afghanistan, capture and torture by Taliban - PTSD and other psychological defects Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 54B Cases Cited: Muldrock v The Queen [2011] HCA 39, 244 CLR 120 Category: Sentence Parties: Regina (Crown)
Farden Fazah (Offender)Representation: Counsel:
Ms K Shead (Crown)
Mr P Winch (Offender)
Solicitors:
S Kavanagh - Solicitor for the Director of Public Prosecutions (Crown)
SE O'Connor - Legal Aid Commission (Offender)
File Number(s): 2011/9681
SENTENCE
The offender, Farden Fazah, has pleaded guilty to the murder of his child and the wounding of his wife with intent to cause her grievous bodily harm, the two offences having been committed in the course of an incident at their home unit in Canley Vale on 1 January 2011. His plea of guilty to the charge of wounding with intent in respect of his wife was accepted by the Crown in satisfaction of a count of wounding with intent to murder her.
Murder carries a maximum sentence of imprisonment for life and a standard non-parole period in this case of 25 years, while wounding with intent to cause grievous bodily harm carries a maximum sentence of 25 years imprisonment with a standard non-parole period of 7 years.
Facts
An agreed statement of facts records that the offender and his wife, Rasa Fazah, were both born in Afghanistan. They met in 2003 in Pakistan, and married in 2006 in Afghanistan. The offender came to Australia, where his family were living, and he was granted Australian citizenship in July 2007. In December of that year Rasa joined him, having been granted a spousal visa.
At the time of the offences the offender was 32 years old, and Rasa was 24. The child who was the victim of the murder was their daughter, Maria, who was born in September 2008. She was their only child, and she was 2 years old when she met her death.
The relationship between the offender and his wife was troubled. The offender was controlling of her, forbidding her to manage her own money or to buy groceries on her own. Shortly after she arrived in Australia, there was an argument during which she cut her wrist with a knife. The offender took the knife from her and stabbed himself in the stomach area, saying words to the effect of, "Before you stab yourself I will stab myself." He threatened her with cancellation of her sponsorship and her removal from Australia. Her mother in Afghanistan insisted that she remain with him and be an obedient wife.
On a number of occasions the offender was violent towards her. On one of those occasions, when she was about 5 months pregnant, he threatened to kill her if she told police about his violence or wanted to divorce him. However, he promised not to hit her again. On an occasion in February 2009, he punched her to the face during an argument. A concerned neighbour called the police and, as a result, an apprehended domestic violence order for 6 months was made. On yet another occasion, during an argument, he said that he would not hit her again, adding, "Next time if I hit you I will kill you, I will kill Maria and I will kill myself."
However, he was never violent towards the child, Maria, and always treated her affectionately.
The fateful day, 1 January 2011, was the offender's 32nd birthday. Rasa Fazah had made an arrangement to go to the beach with a friend, Fariha Kanwal, who lived at unit 1 in their block, with their respective children. In the morning of 1 January, although the offender appeared to be resentful of the fact that Ms Kanwal and her children were to join them, he said that he was happy to go to the beach with the family. However, he later changed his attitude. During an argument about an inconsequential matter he became angry, and Rasa said, "Do you not want to go to the beach? You go and tell Fariha we are not going."
Rasa left their unit, unit 6, and went to unit 1. She told Ms Kanwal that she and the offender were having an argument, and that they were not going to the beach. She was upset and crying by this time because the offender would often change their plans. The two women discussed going to a nearby park, but remained in unit 1 because it was cooler than unit 6.
Rasa returned to unit 6 and collected Maria, some personal belongings and some spare clothes for the child. The offender said, "If you leave, don't come back." Raza replied, "You are always saying these things, I am going to Fariha's house because it is too hot."
She returned to unit 1, where she and Ms Kanwal decided to go to the park with their children. At about 6.30pm she returned to unit 6 because Maria had wet herself and required a change of clothes. She and the offender did not speak to each other. At one stage she said to the child, within the hearing of the offender, that they were going to the park and that she would give her some juice. The offender called out, "You cannot go anywhere."
He walked over to her and raised his hand with a closed fist. He put his hand across her neck and pushed her against a wall next to the fridge. He laughed and said, "You are scared of me". Rasa said, "No, I am not scared of you, if you hit me I will call the police, I want my phone". He said, "Are you serious?" She replied, "Yes, I am serious, if you hit me I will call the police". Rasa walked over to the lounge, where her phone was.
As she approached the lounge the offender started punching her to the right side of her face, around six times. She was screaming and trying to cover her face. Maria was standing in the same room, screaming and crying. She was uninjured at that time.
The offender walked to the front door and locked it, then hurriedly walked to the kitchen. Rasa ran to the door and opened it, and then ran down the stairs. The offender chased after her. The child was left alone in their unit.
The stairs led to a ground floor landing. As Rasa reached the bottom of the stairs, she tripped over and fell to the ground. The offender stood over her, holding a kitchen knife. Rasa said, "Don't do this, please don't do this". The offender stabbed her deep into her right shoulder. She held her hands above her face and her heart to protect herself. She could feel the knife striking her arms, hands, shoulders, face, chest and stomach. She called out for help, and she could hear Maria calling out her name from upstairs.
Ms Kanwal opened her unit door, which was close to where the assault was taking place. She saw the offender bent over Rasa and he turned towards her, pointing the bloodstained knife in her direction. She quickly closed her door and called 000.
A bystander, Son Tran, was nearby outside the building at that time. He heard screams and ran over. He saw the offender standing over Rasa, striking her as she was on the ground. He saw the offender strike her directly to the face twice. Mr Tran picked up a skateboard that was nearby and screamed out to the offender to get back. He moved closer towards the offender and Rasa. The offender ran away up the stairs towards unit 6.
Mr Tran went to Rasa, noticed that she was bleeding heavily, and asked if she was ok. Rasa replied, "My 2 year old daughter, she's still upstairs, he has got her with him, please, please." Mr Tran asked what unit she was from and she told him it was unit 6. He walked up the stairs. He found a knife, with a broken handle, on the stairs. He was concerned that the offender may be armed in his unit so he did not knock on the door. He went back down the stairs to assist Rasa and arranged for a nearby relative to call the police.
Rasa was concerned about Maria because she could not hear her screaming anymore. She said to him, "My daughter is still up there with him, please help, please help." During this time the offender used another knife to inflict fatal stab wounds to the child. He then inflicted various stab wounds to himself.
Police arrived on the scene a little after 6.45pm. Asked what had started the argument, Rasa said, "My husband would not let me go out with a friend, he never lets me out." She was conveyed to Liverpool Hospital. At about 7.20pm Tactical Operations officers arrived and attempts were made to get the offender to leave the unit.
Police made contact with him by phone and told him they were concerned for his welfare. At about 7.45pm, in a phone conversation, the offender said that he was injured. Asked if the child was ok, he did not reply. Asked if he was ok, he replied, "I have hurt myself ... help me, break my door, I have stabbed myself heaps of times, I need help, she is dying ... I cannot open the door, I'm hurt. I cannot get up, I need help, I am stabbed, my child is dying."
Shortly thereafter police entered the unit. The offender was sitting on the lounge room floor, covered in blood, and the child was lying near him, motionless, on her back. First aid was applied to both of them and they were rushed to hospital.
Attempts to revive Maria at Westmead Children's Hospital were unsuccessful. According to a post mortem examination, the direct cause of her death was "penetrating incised (stab) wounds to chest and upper abdomen". She was found to have three stab wounds to those areas. In addition, she was found to have minor recent injuries to her right leg and bruising to her upper neck "possibly reflecting blunt force trauma to this side at around the time the stab wounds had been inflicted".
Rasa Fazah was taken to Liverpool Hospital. She was found to have numerous stab wounds to her upper body, arms, hands and head. She was severely bruised to the face. The treating surgeon opined that the injuries observed were consistent with direct and defensive injuries in the course of an assault with a sharp object such as a knife. The injuries to the hands would cause "prolonged considerable morbidity and reduction in function." She was cleared for discharge 7 days later, although she had to remain in hospital for a further period while arrangements for housing were made for her.
The offender was taken to Liverpool Hospital. On his arrival his Glasgow Coma score was 14 and he had no detectable blood pressure. There were puncture wounds to his neck, chest and abdomen. He underwent surgery, where a penetrating wound to his left chest and a laceration of the anterior abdominal wall muscles were repaired. The treating surgeon noted other superficial abdominal lacerations and three small puncture wounds to the neck. Analysis of a blood sample taken from him detected no drugs or alcohol.
When interviewed by police on 7 January 2011, the offender said that he could not remember anything. He asked to see his wife. He was discharged from hospital on 11 January. He has remained in custody since his arrest on 1 January 2011.
Victim impact statement
Rasa Fazah was told of the death of her child on 2 January 2011. Police described her reaction as "overwhelming", screaming over and over, "Not my daughter, not my daughter." She told police that the only reason she had stayed with the offender was for the child's sake. She begged police to take her to Maria and said that she wanted to die too.
At the sentence proceedings she read a victim impact statement. It must have been very difficult for her. As one would expect, she was very emotional and she had to pause from time to time to compose herself before she could continue. Nevertheless, she persevered with courage and dignity.
As one might also expect, the focus of her statement was upon the loss of her daughter, not her own injuries. She said, "I have scars all over me, my face, my hands and my body that I can't even look at myself but these scars are not as deep as the emotional pain." She went on to describe eloquently her love of Maria, her grief and outrage at the child's violent death, and the enduring effects that this tragedy has had upon her life. I expressed my deepest sympathy to her at the time, and I do so again now.
Subjective case
The offender is now 35 years old. He has no previous convictions. His background is to be found in the reports of Dr Usman Malik, a psychiatrist who has been treating him in custody, and Dr Iliana Hepner, a neuro-psychologist who examined him for these proceedings. I also received evidence from his older sister, Nasiba Sediqi, whom he has believed to be his mother. She had brought him up in her household since he was an infant, apparently because their mother was sick and she had to assume responsibility for him. She regards him as her son.
The offender had a difficult upbringing. He was born in Kabul, Afghanistan. His family belonged to the Tajik community, a minority group within the larger Afghani community. He demonstrated learning difficulties at school. Nevertheless he was educated to year 12 and entered university to study journalism. However, he did not fare well at university either.
In 1993, when he was in his early teens, he set fire to a shop in Kabul. It seems that he later had no memory of having done so, and the matter was treated as a medical problem. He was diagnosed as suffering from epilepsy, and there was a history of seizures from time to time thereafter.
He experienced wartime conditions throughout his upbringing in Kabul. There were attacks by rockets and bombs in the area where the family lived, and his sister observed this to affect him badly. In the later 1990s, while he was at university, he was captured by the Taliban. He was held by them until he escaped in 2003. During his incarceration he was tortured. On one occasion, he was put in a room with dead bodies when they thought he had died secondary to the injuries he sustained as part of the torture. One another occasion he was present when two prisoners either side of him were shot dead.
During this period he lost contact with his family, who had migrated to this country in 1999. Contact was restored after he escaped, when Ms Sediqi found him in Pakistan and set in train arrangements for him to join them in Australia.
Here, he obtained some trauma counselling through the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STAARTS). He also saw a Centrelink psychologist and was put on a disability support pension. He worked intermittently as a security guard.
Dr Malik saw the offender when he first came into custody. He described him as "vague and perplexed", apparently unable to answer basic questions. He also appeared "regressed and child-like at times. " In 2012 he suffered a stroke, which required rehabilitative treatment. There were incidents of self-harming behaviour and what the doctor described as "obvious levels of psychological distress." He was transferred to a specialist unit at Bathurst for psychotherapy, from which he has benefited greatly.
Dr Malik diagnosed the offender as suffering from Post Traumatic Stress Disorder "due to the war, kidnapping and torture he endured in Afghanistan." The condition manifests as "depression, flashbacks, periods of dissociation, and self-harming behaviour, including suicidal thoughts and plans."
While noting the benefit of psychotherapy, Dr Malik saw the offender's prognosis as "poor while he is in gaol due to aspects of his prior imprisonment over many years by the Taliban, and how his current isolation and imprisonment in gaol reminds him of that past traumatic experience."
Dr Hepner saw the offender in January of this year. She summarised the results of her testing, conducted across two sessions with the assistance of an interpreter, as follows:
"Findings of neuropsychological assessment reveal evidence of impaired performance relative to age expectations in his intellectual function involving Perceptual Reasoning, attention, speed of information processing, new learning and memory, basic reading and arithmetic skills, and frontal executive functions. His responses on a self-report questionnaire indicate significant problems with global executive functions in his everyday environment, including problems with behavioural regulation, emotional control and higher level problem solving. He also reports elevated symptoms of anxiety and depression. Mr Fazah performed adequately on measures of test taking effort and there was no evidence during the examination to suggest that he was deliberately attempting to present himself in an impaired manner."
Dr Hepner referred to the history of the offender's problems with cognition and behavioural/emotional control from his childhood and to his experience of torture at the hands of the Taliban, which included beatings to the head and having his head held under water. She thought it likely that this had caused cumulative brain damage as the result of repeated traumatic brain injury (TBI) and/or hypoxic episodes. She referred to his symptoms of PTSD in similar terms to those described by Dr Malik. She also noted that the 2012 stroke might have had an impact on his current level of cognitive function.
Dr Hepner concluded:
"Taken together, the cognitive impairments and problems with executive functions in the everyday environment (eg, behavioural regulation, emotional control and higher level problem solving), as detected on current assessment would be explainable in the context of Mr Fazah's complex background history including difficulties with cognition and behavioural/emotional control dating back to childhood, the psychological (PTSD) and physical (repeated TBI and/or hypoxic episodes) effects of being tortured, his psychiatric condition and medullary stroke.
From the history provided, and on balance, the psychological and physical effects of being tortured would have likely compounded any pre-existing problems with cognition and behavioural/emotional control, and likely increased his proneness to impulsivity and poor judgement. The extent to which this may have impacted on his behaviour at the time of the index offence, however, it is not possible to say."
Sentencing
The seriousness of the murder of the child, Maria hardly needs emphasis. The gravity with which the murder of children is viewed is reflected in the standard non-parole period for that crime of 25 years rather than the period of 20 years applicable to murders generally. The offender inflicted a number of stab wounds upon an innocent 2 year old child, to whom he stood in the most important position of trust of all. The conclusion that he intended to kill her is irresistible.
The offence of wounding his wife with intent to cause her grievous bodily harm is a serious one of its kind. The offender ceased his attack upon her only because of the intervention of the courageous Mr Tran. She suffered significant and enduring physical injuries and, plainly enough, the attack on her has contributed to the serious psychological state which she continues to suffer as a result of the incident as a whole. The effects of that psychological injury are set out in a portion of a notice of determination by the Victims' Compensation Tribunal, part of the Crown bundle, exhibit A.
I have referred ([6] above) to an occasion earlier in the relationship when the offender threatened his wife that, in the event of further dissention between them, he would kill her, their child and himself. The Crown prosecutor did not suggest that the present offences were an attempt to carry out that threat. What occurred was spontaneous, not premeditated, and I accept her characterisation of the incident as a very violent outburst by the offender, enraged by behaviour of his wife of which he did not approve, against the background of a controlling and sometimes violent relationship. However, I am troubled by the Crown prosecutor's further submission that his killing of the child was intended as the "ultimate injury" to his wife. That is an inference which might be drawn but I am not satisfied beyond reasonable doubt that it should. I accept the submission of the offender's counsel, Mr Winch, that he was in a state of "high arousal and uncontrolled emotions" during which he went back to the unit, lashed out at the child and then at himself. I am unable to determine beyond reasonable doubt what might have been his motive for his attack on the child.
Some light is cast upon his behaviour, both at the time of the offences and throughout his relationship with his wife, by his background and, in particular, his distressing experience of war torn Afghanistan and of captivity under the Taliban. It would seem from the report of Dr Hepner that that background has had cognitive effects, although allowance must be made for the fact that she assessed him after the 2012 stroke. More important are its effects on his behavioural and emotional control and his propensity to impulsivity and poor judgment. Dr Hepner did not attempt to assess the extent to which this might have borne upon his behaviour at the time of the offences. I am satisfied that it had some effect. I accept that it bears upon the issues of moral culpability and general deterrence, although not to a marked degree.
While the offender has not expressed remorse for his crimes, I accept Mr Winch's submission that he demonstrated remorse by the injuries which he inflicted upon himself, which appear to have been a serious attempt at suicide, and by his pleas of guilty. In the earlier stages of these proceedings there was an issue as to his fitness to stand trial, and he entered those pleas promptly after that issue was resolved. The Crown prosecutor very properly acknowledged that he is entitled to the full benefit of their utilitarian value.
He is entitled to a measure of leniency because of his lack of any criminal history and his deeply troubled background. I also take into account the fact that his psychological state arising from his period as a prisoner of the Taliban will make his experience of prison more distressing. His prospects of rehabilitation are not easy to assess but I think that they are reasonable. He appears to be responding to psychiatric treatment and he enjoys the continuing support of his sister and other members of his family. Clearly, upon his release he would benefit from an extended period of conditional liberty, subject to supervision and the sanction of parole.
In relation to each offence regard must be had not only to the maximum sentence prescribed but also the standard non-parole period, which is to be approached in the manner explained by the High Court in Muldrock v The Queen [2011] HCA 39, 244 CLR 120 and now enshrined in the recently amended s 54B of the Crimes (Sentencing Procedure) Act 1999. Clearly, there is good reason to fix a significantly lower non-parole period in each case. Although the two offences were part of the same incident, partial accumulation of sentence is necessary to reflect their criminality.
While the offender is entitled to a reduction of sentence for each offence because of the utilitarian value of his plea of guilty, I do not propose to quantify that reduction as a percentage. For the murder I would have imposed a sentence of the order of 30 years but, in recognition of the plea, I shall reduce that to 24 years. I believe that any greater reduction would result in a sentence inadequate to mark the gravity of the crime. In like manner, for the offence of wounding with intent I shall reduce what would otherwise have been a sentence of 9 years to 7 years. In respect of each offence I shall fix a non-parole period at the statutory proportion (reduced to a round figure in the case of the offence of wounding with intent). Accordingly, the sentence for the murder will be 24 years with a non-parole period of 18 years, and for the wounding with intent a term of 7 years with a non-parole period of 5 years.
I shall accumulate the sentences by 2 years, producing an aggregate sentence of 26 years with an effective non-parole period of 20 years. Those figures preserve the statutory proportion, again in round figures. While there is ample material to establish special circumstances which might justify a departure from that proportion, the offender has the benefit of parole eligibility for 6 years and, here also, any lesser minimum term would be insufficient to reflect his criminality.
Farden Fazah, for the wounding of your wife with intent to cause her grievous bodily harm you are sentenced to a non-parole period of 5 years, to commence on 1 January 2011 and to expire on 31 December 2015, and a balance of term of 2 years, to commence on 1 January 2016 and to expire on 31 December 2017. For the murder of your daughter, you are sentenced to a non-parole period of 18 years to commence on 1 January 2013 and to expire on 31 December 2030, and a balance of term of 6 years, to commence on 1 January 2031 and to expire on 31 December 2036. You will be eligible for release on parole on 31 December 2030, and the aggregate sentence will expire on 31 December 2036.
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Decision last updated: 14 March 2014