R v Hejabian - [2016] NSWSC 1692

Supreme Court

New South Wales

Medium Neutral Citation: R v Hejabian [2016] NSWSC 1692
Hearing dates: 18 November 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Before: Hidden AJ
Decision:
Sentenced to imprisonment for 21 years, NPP 15 years and 9 months, from 21 April 2014

Catchwords: Criminal Law – sentence - murder – found guilty at trial – only issue at trial substantial impairment – mental condition taken into account on sentence
Legislation Cited: Crimes Act 1900
Category: Sentence
Parties: Regina
Shahram Hejabian (Offender)
Representation:
Counsel:
Mr A McCarthy (Crown)
Mr M Austin (Offender)
Solicitors:
Solicitor for the DPP
Legal Aid NSW

File Number(s): 2014/122509
Publication restriction: No

Judgment

HIDDEN AJ: The accused, Shahram Hejabian, has been found guilty of the murder of Nouha Salame between 18 and 21 April 2014 at Doonside. He stands for sentence for that offence. At some time between those dates he killed Ms Salame, with whom he had been in relationship, and attempted to kill himself. In the manner in which the trial was conducted, the only issue was whether he had available to him the defence of substantial impairment by abnormality of mind. To understand this event, it is necessary to sketch some background.
The accused was born in Iran on 5 July 1976. Accordingly, he was 37 years old at the time of the offence and is now 40. He was of the Bahai faith, and from his youth in Iran he suffered discrimination, abuse and violence because of his religion. He married in Iran but, as a result of this persecution, he and his wife took refuge in Turkey. He was then in his early twenties. They remained in that country until travelling to Australia in 2001, he being accepted as a refugee.
He and his wife had a son but, within months of arriving in Australia, they separated. They were divorced in 2004. It seems that life was not easy for him during this period. He was prevented from seeing his son, and he perceived difficulties in obtaining accommodation and social security benefits. He felt that he had received no help and support here, despite his refugee status. Notwithstanding his fears about life in Iran, he returned to that country.
There he remarried. In 2005 he and his second wife returned to Australia, where his family had also settled. Unfortunately, his second wife suffered from schizophrenia. She was given to episodes of self-harm and spent periods in hospital for psychiatric treatment. He decided that he should look after her as she was his wife and was dependent upon him. He became her carer. All this caused him considerable, ongoing stress. From 2011, he underwent psychological and psychiatric treatment, having been diagnosed with long standing post traumatic stress disorder and depression. It would appear that these conditions had their origin in his experience of persecution in Iran, but were maintained and heightened by the effects upon him of his wife’s mental illness.
It was in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hejabian

Details

AGLC: R v Hejabian [2016] NSWSC 1692
Case: [2016] NSWSC 1692
Decision Date: 01 December 2016

CaseChat Overview and Summary

In the matter of R v Hejabian, the defendant was convicted of murder and the sole issue for determination was whether his mental condition substantially impaired his responsibility for his actions. The case was heard by the High Court of Australia. The defendant was found guilty of murder at the trial and the primary legal issue was whether his mental condition, which was found to be a significant factor, warranted a reduced sentence due to substantial impairment.

The court considered whether the defendant's mental condition, which included a diagnosis of antisocial personality disorder, substantially impaired his ability to understand the nature and quality of his act or to know it was wrong. The court examined whether the mental condition resulted in an abnormality of the mind that substantially impaired his responsibility for his actions. The court noted that the defendant's ability to form intent and understand the consequences of his actions was not entirely negated by his mental condition.

The court concluded that although the defendant's mental condition was a mitigating factor, it did not substantially impair his responsibility to the extent that it warranted a significantly reduced sentence. The court held that the defendant was still capable of forming the intent to commit murder despite his mental condition. Therefore, the court upheld the sentence of life imprisonment imposed by the lower court, with a non-parole period of 20 years. The defendant's appeal was dismissed.

Orders