R v Yasso
[2005] VSC 75
•21 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1425 of 2002
| THE QUEEN |
| v |
| MAZIN YASSO |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-11, 14-18, 21-25, 28 February, 1, 2, 18 March 2005 | |
DATE OF SENTENCE: | 21 March 2005 | |
CASE MAY BE CITED AS: | R v Mazin Yasso | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 75 | |
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Criminal law – sentence – murder – estranged wife stabbed multiple times by husband – husband had threatened and harassed deceased for several months prior to her death in breach of intervention order - provocation rejected by jury – sentenced to imprisonment for 20 years with non-parole period of 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Pullen S.C. | Solicitor for Public Prosecutions |
| For the Accused | Mr W Stuart | Victoria Legal Aid |
HER HONOUR:
Mazin Yasso, having been found guilty by a jury of the murder of your wife, Eman Hermiz, at Meadow Heights, on 8 May 2001 it is now my responsibility to sentence you. In determining the appropriate sentence it is necessary to consider the circumstances surrounding the commission of this offence.
You married Eman Hermiz in Iraq in 1990. Entitled to British citizenship, in 1997 you went to live in London. The original arrangement seems to have been that you were to bring you wife to England. For reasons which I will mention later, this did not happen. Eventually your wife asked her sister, Hanaa Kalandos, to sponsor her to come to Australia. Your wife's application was successful and she arrived in Australia on 11 August 1999, having obtained a "Women at Risk” visa.
Eman Hermiz lived at the home of her sister and brother-in-law in Broadmeadows. In September 1999 she enrolled at the Broadmeadows Language Centre to learn English. She obtained work at Raghad's Hairdressing Salon in Wheatsheaf Road, Glenroy and also did some hairdressing work from home.
The level of communication between you and your wife during the period that you were living in London is not clear. However, at some stage it was agreed that once she had arrived in Australia, she would sponsor you to come to this country.
You arrived in Australia on 30 October 1999 and went to live with your wife at her sister’s Broadmeadows home. It appears at this stage that both of you wished the marriage to continue. Indeed, on 22 December 1999 you lodged a combined spouse application for permanent residence, with your wife as your sponsor.
You lived as a couple at the Broadmeadows home for about three months. Towards the end of January 2000, you and your wife entered into a 12 month lease for Flat 1/8 Prospect Street, Glenroy. At that time your wife was employed as a hairdresser and you were working as a landscape gardener. At a later time you obtained work as a casual hospital cleaner, working 2 or 4 days per week.
On 24 July 2000 your wife obtained a loan of $14,000 from the Commonwealth Bank. It was alleged in the course of the trial that in the ensuing months you gambled much of that money away. Certainly the bank records show an amount of $8,000 being deposited into your Bank of Melbourne account on 31 July 2000.
As time passed your relationship with your wife deteriorated. I do not intend to mention all the incidents that occurred in the period of time leading up to her death, but it is necessary to mention some of them. I should also indicate that the chronology of those events is not always clear.
At some stage during the year 2000 you forbade Eman to visit her sister or to pursue her occupation as a hairdresser. You also opposed her attendance at English classes and wanted to prevent her seeing her friends.
Early in 2001, probably in January or February of that year, there were rumours about your wife having an affair with Nasir Haba, a man who was a fellow student at her English school. When confronted with this by your friend, Salam Kakos, your wife denied it, although she eventually admitted that Haba had driven her home from the language centre on one occasion. Your wife, understanding the potentially fatal consequences of such a liaison in Iraqi culture, was extremely frightened by this gossip. According to Mr Kakos, you accepted your wife's denial of the relationship in a calm manner.
Later you claimed that an incident occurred when you had come home early from your cleaning job to find your wife in a bathrobe, and Mr Haba crouching in the garage. Mr Haba and your wife both denied that this incident had occurred.
In late February 2001 your wife told Ms May Farah, a social worker, of an incident where she had cooked food for some friends she had met, and of you arriving home at the time a male friend, having collected the lunch, was leaving. It is not clear whether this was the same incident as the one you described.
However, you were very angry at what you perceived to have occurred and you confronted Mr Haba at his flat and made him swear an oath on the bible denying the affair. You did not believe him and you later damaged his car and called to tell him that it was you who had inflicted the damage. He also asserted that you threatened to kill him.
When giving evidence in this court, Mr Haba continued to deny any sexual relationship with your wife. He said that he and his sister were friends of your wife. Mr Haba said that after Eman subsequently left the Glenroy flat in which you had lived together, the only contact he had with her was by telephone. Certainly there was evidence that Mr Haba and your wife had rung each other many times in the couple of months prior to her death.
At their meeting in late February, your wife told Ms Farah that your belief in her innocence fluctuated, and she believed she had no choice but to leave you and live with her sister. On that occasion Ms Farah gave your wife advice as to how to obtain an intervention order from the Magistrates' Court.
On 10 March your wife left you and went to live at the home of her sister, Hanaa Kalandos, which was now situated in Meadow Heights, an address of which you were initially unaware. Eman spoke to her sister of her fear of you. You wanted your wife to return to you and sought the assistance of her sister and brother-in-law to persuade her to do so. Despite the efforts of Mrs Kalandos and Mr Hanna, Eman could not be persuaded to give you another chance.
At some stage after your wife had left, you enlisted the services of a priest in a further endeavour to bring about a reconciliation.
On 13 March your wife obtained an interim intervention order against you. Its terms were explained to you by police when it was served on you on 16 March.
On 19 March the Department of Immigration was advised of the change in your relationship with your wife.
On 23 March an application for a permanent intervention order was heard at the Broadmeadows Magistrates' Court. Your wife told the court that you sharpened knives in front of her, had threatened to kill her and her family, and were unwilling for her to work, or talk to or see anyone.
Your wife also complained of you accosting her in the street around 16 March and threatening to kill her if she did not give you back money and jewellery. The reference to jewellery apparently related to a gold necklace you had given to your wife upon your arrival in Australia. This incident occurred in the presence of your wife’s niece, Susan Kalandos, who confirmed your angry threats. This appears to be the event also witnessed by Mr Salam Kakos, who noticed that your wife was frightened of you and wanted to run away.
You told the Magistrates' Court of the incident involving Nasir Haba and of your wife's denial of any sexual relationship. It appears that by this stage you had found telephone bills indicating that Mr Haba had spoken to your wife on the telephone about 15 times over one or two months. You also told the magistrate that prior to your wife leaving you, agreement had been reached to make a fresh start. You claimed to still love her.
The magistrate accepted your wife’s evidence and made an intervention order, operative for a period of two years. Amongst other things, that order prohibited you from assaulting or threatening your wife and from telephoning her or approaching her unless in the company of a police officer. At the time, you said you understood the terms of that order. Later, your friend, Gamal Salib, advised you to comply with the order and to forget about your wife.
In the course of the Magistrates' Court hearing, you had also told the magistrate that your wife had stolen your MasterCard. You claimed that using this card your wife had taken $1,000 from your account on 12 March. In fact, an ATM photograph of 14 March, subsequent to your wife having left you, shows you using that very card, a circumstance which strongly suggests your claim was false.
Despite the conditions of the intervention order, you consistently attempted to telephone your wife on her mobile phone and on the Hanna landline throughout late March, April and early May. Telephone records also indicate that during March you telephoned the Hanna landline from the butcher's shop of your friends the Allos/Kakos brothers on 15 occasions. A number of these telephone calls were of a threatening nature; others appear to have involved you calling and then hanging up without speaking.
Your vindictive attitude towards your wife was also exemplified by your actions in placing the furniture from the Glenroy flat into storage on 29 March and then lying to the police on 1 April when you claimed that your wife had stolen it.
You also told police and others that your British passport was missing and had been stolen by your wife or her family. Since it had been carried on your person as recently as 29 March when you showed it to the removalist Dale Splait, and in April when you used it to change your PIN number at the bank, this seems unlikely. In any event, there is no evidence that your wife had stolen it.
At the Magistrates' Court hearing, you had been told by Mr Hanna that your wife would withdraw her sponsorship of your visa. This unwelcome news was confirmed when on 11 April your application for permanent residence was refused, following a written withdrawal by your wife of her nomination on 26 March.
On 20 April you met with Ms Sharon Urquhart of the Migrant Resource Centre and showed her a letter from the Department of Immigration stating that your visa had been cancelled and giving you 28 days to leave Australia. You not only expressed a desire to remain in this country, but, consistent with the bitterness you felt towards your wife, you asked whether it was possible to cancel her visa since it had been obtained using false information. Further, when told that the possible grounds for appeal against the decision of the Department of Immigration included having experienced domestic violence, you claimed that you had suffered this at the hands of your wife. Pressed for details, you mentioned nagging and the withdrawal of sponsorship. Ms Urquhart described your attitude towards your wife as one of anger and resentment.
Your wife also notified the real estate agent that she was no longer living at the Glenroy flat and would not be responsible for any more rent. Due to outstanding rent not being paid, you were given notice that you would be evicted from the flat on 9 May 2001.
One manifestation of your wife’s fear of you was her ceasing to attend the Broadmeadows Language Centre and on 2 May 2001 enrolling at the Meadow Heights Learning Shop. In fact, on 3 May you attended at the Broadmeadows Centre where you lied to the receptionist and told her that you were the brother of Eman Hermiz and that there was a family problem. Under this guise you persistently attempted to obtain details of your wife's whereabouts. That information was not provided to you. You were also observed walking past the classrooms, apparently looking for your wife.
On 4 May your wife rang Mr Christopher Coleman of the Department of Immigration, trying to ascertain your current status in the country, stating that she felt in danger from you.
On 7 May she purchased a new mobile phone in order to get a new telephone number.
On 8 May your wife attended her language class at about 9.20 a.m. There was a morning break around 11.00 or 11.15 a.m. She did not return after it.
On your account of events given to the investigating police in a video taped interview, you travelled to the Meadow Heights and Broadmeadows shopping centres several times on that morning. In my view the jury would have been satisfied that you were attempting to locate your wife.
You took with you a kitchen knife. I do not accept your explanation to the police that you carried it to protect yourself from Gemi Hanna. Although there may have been mutual animosity between you, there was no history of violence. I do not accept that there was a pre-arranged meeting between you and Gemi Hanna arranged for that day. That said, I am not able to find that you went there with a knife, intending to kill your wife.
The events leading up to the killing were observed by a number of independent witnesses. Their description commences with an argument inside the Meadow Heights shopping complex between you and Eman Hermiz. You were demanding "Where's my money?" and she was heard responding "Leave me alone."
At about 11.30 a.m. you were both seen at the side of the shopping centre engaging in a loud conversation and arguing. On two occasions your wife, who had her back to the wall, attempted to move away from you. Each time you encircled her with an arm to prevent her leaving. On each occasion she screamed and you removed your arm. You then walked close beside your wife as she moved in the direction of a car parked towards the rear of the building. She appeared scared.
Next in the sequence of events, some youths who were inside a house situated diagonally across a paddock from the shopping centre heard a female screaming. Cries of "Help" and "Leave me alone" were also heard. On going to investigate, these young people observed you apparently punching your wife. In fact, you were stabbing her.
At about the same time the witness Chantelle Hardaway heard a woman screaming and telling you to leave her alone. Ms Hardaway called to her sister Amanda, who came from the nearby medical centre. As the sisters ran towards you and your wife, they also realised that what they had first thought were punches were in fact knife blows. As Eman Hermiz was being hit with the knife she was screaming and stumbling backwards. Amanda Hardaway yelled at you to leave the woman alone. You stopped and looked at Amanda Hardaway, and then stabbed your wife two or three times more.
Simultaneously, the group of youths was running towards you and one of them, Aaron Cowman, also called out loudly for you to stop. It was his evidence that you stopped and looked up at him, before stabbing your wife again.
Once you had finished stabbing her, you did not try to offer your wife any assistance. Instead, you quickly left the scene, moving around the back and in through the rear door of the shopping centre. By this time your wife had been fatally wounded. Ultimately you were arrested walking along a nearby bicycle path.
You did not give evidence at your trial, but in your record of interview you claimed that having confronted your wife at the shopping centre she agreed to your request to return your British passport and the gold necklace. Given her fear of you, she may well have felt the need to say that she would do so. You said that these items were to be handed over at 11 a.m. the next day, and you told police that as a guarantee of her attendance at that time you asked for her handbag. This she gave to you. You also demanded her mobile phone. You said that the purpose of this was to prevent her ringing the police, because you were aware that contact with your wife was forbidden by the intervention order.
When Eman refused to give you the mobile phone you produced the knife. You said that she was frightened by this act. On your version of events, you repeatedly told her to give you the mobile phone, but she would not do so. You then claimed that she spat at you, and you commenced to stab her.
At this time your wife was up against the shopping centre wall. You also told the police that you were holding Eman while stabbing her. This is consistent with the evidence of other witnesses.
You also acknowledged that you saw two men running towards you from the direction of the bus stop, who were yelling at you. This may well have been a reference to the group of youths. You described leaving the scene before smoking your last cigarette.
In relation to the allegation of spitting, you did not say whether the spittle contacted you and, if so, where. No-one saw this occur, but because of the nature of such an act this could not be conclusive. Having regard to the evidence and to the questions which the jury asked during their deliberations, I do not believe the jury accepted your assertion that your wife spat at you.
First, there was considerable evidence before the court of the traumatic physical consequences that awaited any Iraqi wife who spat at her husband. Eman Hermiz would have been well aware of those possible consequences.
Secondly, it is beyond credence that this small woman, just 152 centimetres tall and weighing 47 kilos, faced with a large angry male wielding a knife, and in a remote location away from any possible assistance, would spit at you.
Finally, given the fear which you say your wife exhibited at the time, it may be doubted whether she could have produced any spittle from what is likely to have been a dry mouth.
In the course of your police interview, you claimed that you did not intend to kill Eman Hermiz, that you did not know what was going through your mind when you were stabbing her, and that you did not know where or how many times you stabbed her.
The evidence of the pathologist, Professor Cordner, is that there were 12 stab wounds to the area of the neck and chest, some of which had entered the chest cavity damaging the left lung and heart. One stab wound had penetrated the breast bone. This would have required severe force. Additionally Professor Cordner found eight defensive type wounds to your wife’s upper limbs. In light of the number and the vulnerable location of the stab wounds to the body, it is not surprising that the jury rejected your claim that you did not have a murderous intent when you stabbed your wife.
Evidence was given to the court about the potentially fatal consequences in Iraqi culture of a wife associating with another man, here alleged to be Nasir Haba. This was so even though the couple are separated. It was stated, in effect, that the honour of the husband requires that he kill his wife. However, you never claimed to the police that this was a motive for the killing.
Further, you told police that the fact of your wife leaving the marriage did not anger you, although it constituted an insult.
I should add that there is a suggestion in your record of interview that your wife had admitted having an affair with Mr Haba. This, however, directly contradicts what you told the magistrate at the intervention order hearing.
You also told police that the fact that people within your community had knowledge that your wife was associating with Mr Haba did not upset you. In effect you were claiming that you and your wife had agreed to go your separate ways, with you returning to London. Certainly, according to your account, the matters raised in the final fatal meeting had nothing to do with any perceived cultural or marital transgressions. It may be that your wife's resistance to your demands rekindled in you a sense that your honour had been damaged. It is now impossible to know where the truth of these matters may lie.
What is clear, however, is that you became extremely angry and subjected Eman Hermiz to a sustained attack, which you continued, despite being called upon to stop. You persisted until your intention to kill her had been accomplished.
In all the circumstances I regard this as a very grave offence. Once your wife had left you, and it was apparent that she did not wish to return, you pursued over several months a course of harassment, which included accosting her in the street, following her at a shopping centre, and the frequent use of the telephone to deliver threats against her wellbeing and that of her family, all in breach of an intervention order.
You deliberately sought out your wife and confronted her, knowing, as you said in the police interview, that to do so was in breach of an intervention order. You took a knife with you, which you produced, in order to enforce your demands. You prevented your wife leaving your presence and upon her legitimate non-compliance with those demands you stabbed her to death. You did so ignoring the entreaties of those running towards you to stop.
Having inflicted the knife wounds upon Eman Hermiz, you left her to her fate. All this occurred in a public place in the middle of the day, in an environment where your wife was entitled to expect that she could safely go about her lawful business. Furthermore, you have not exhibited the slightest remorse for your actions.
Eman Hermiz, like any other person in Australian society, had the right to pursue her career and meet friends and relatives and, most importantly, to terminate her marital relationship with you, without suffering fatal consequences.
Not only must courts endeavour to deter persons from seeking to resolve domestic conflict by means of violence, they must also make it abundantly clear that the use of weapons and the resort to violence and flagrant breach of intervention orders will be met by severe punishment. As the Court of Appeal affirmed only a few weeks ago[1], intervention orders are a process designed by parliament to provide the protection of the law to vulnerable individuals, usually women and children, who legitimately fear for their safety. Offenders who disregard such orders and kill or cause serious injury, must anticipate that an extremely stern view will be adopted by the courts and, save in the most unusual circumstances, they will be subject to severe punishment.
[1]R v Xe Van Pham, No 199 of 2004, judgment dated 7 March 2005.
There are a number of matters personal to you which are relevant to any sentence to be imposed. However, before discussing these matters I wish to say something about Eman Hermiz and her family.
Eman Hermiz was aged just 32 at the time of her death. She had come to this country from Iraq in the hope of making a new life for herself. In order to do so she set about learning English, at the same time pursuing her career as a hairdresser.
In the victim impact statements tendered to the court the psychological effect of Eman's death is detailed. Hanaa Kalandos and each of her children, Susan and Mathew, have suffered post-traumatic stress disorder as a result of this offence. The effect on Mary Kalandos, who was only four years old at the time of her aunt's death, has been severe separation anxiety and distress. Some four years after Eman’s death, her family is still suffering significantly. Hanaa Kalandos feels that she is unable to move on with her life and she and her family all still suffer from fear, grief and distress.
It is clear from the material that Eman Hermiz was part of a very close and loving family. Following her sister's death, Mrs Kalandos lost all enjoyment in life and felt guilty that she in some way was responsible for her sister's death. Her relationship with her children has been severely affected. Both Susan and Mathew Kalandos have experienced sleep difficulties and understandably each experienced great shock and grief at what has occurred. As with any family in this situation, the tragic and untimely death of Eman Hermiz and the manner in which it occurred is something from which they will never fully recover.
Mazin Yasso, you are now 48 years old, having been born in London where your Iraqi parents were then living. At that time your father was undertaking studies in the field of electricity. He died in 1993. You were the third of seven children. You had two elder brothers, one of whom died in an accident, and three younger brothers and a younger sister. Apparently you do not know where your mother and remaining siblings are living and since coming to Australia you have had no contact with any of your family. You have no relatives in Australia.
When you were aged four you returned from London to Baghdad, where you attended primary and secondary school in the state system. You spent three years studying economics at the University of Baghdad. You were also required to work part-time to augment the family income, due to your father’s health. You worked part-time as a carpenter and operated, together with one of your brothers, a fruit shop.
From 1976 until 1984 you were required, as were your fellow countrymen, to serve in the Iraqi Armed Forces. Around 1979, the Iraq-Iran War broke out, a conflict which occupied a number of years. Your role in the Army was as a cook, but on more than one occasion you were injured during Iranian bombardments.
After leaving the Army in 1984 you resumed your part-time work as a carpenter and fruiterer until 1990. In that year you married Eman Hermiz. According to your counsel, when you went to the United Kingdom in 1997 you lived in a small flat and worked part-time in a warehouse packing goods. In 1998 that became full-time employment. You were able to live in England because you are a British citizen by birth.
The evidence at trial suggests you spent more than 2 years living in the United Kingdom away from your wife, but I do not need to resolve that dispute. It was planned that you would sponsor your wife, so that she could obtain a visa to come to the United Kingdom. Your counsel says that because of financial difficulties and formalities you were not able to do so.
It was said that during this period you could not contact your wife and her family and ultimately you received a fax telling you to contact your wife, who was in Australia. As I have indicated, that material differs to an extent from evidence given during the trial. In the end it is only of marginal importance. The fact is that you came to Australia and your marital relationship resumed.
You obtained employment initially with a landscape gardener and then as a cleaner at North West Hospital in Brunswick, where you worked for some months prior to March 2001.
The good character evidence led at trial was that of your friend, Mr Salam Kakos. He said that the five to seven families in the Melbourne Iraqi community who mixed with you thought that you were “very nice” and had ”a very good reputation”.
It is not suggested that you have any psychiatric or psychological disability. In Australia you were a member of the Chaldean Christian Church in which faith you had been brought up. You have no prior convictions. In essence, up until the time of this offence you had led an ordinary, law-abiding existence.
Your previous non-violent history, your good work record, your level of intelligence, and the fact that you have no criminal history all point to good prospects of rehabilitation. That factor, coupled with the very personalised nature of the offence itself, suggests that specific deterrence need not be given great weight.
I am conscious, because of your lack of family support in this country, your partial linguistic difficulties and relative cultural isolation, your period of incarceration will not be easy. I make some allowance for that in the sentence to be imposed. Despite your disavowals to the police, I will also make some allowance for the possibility that cultural factors may to some extent have influenced your conduct on this occasion.
Having said all that, this was a very serious offence.
This is the second time you have been tried in respect of your wife’s murder. At your first trial in 2002, the learned trial judge ruled that the evidence was such that provocation should not be left to the jury. You were convicted of murder on that occasion and sentenced to imprisonment for a period of 20 years, with a non-parole period of 15 years. On an appeal brought by you, the majority of the Court of Appeal held that provocation should have been left to the jury. At this, your second trial, provocation was left to the jury. By returning a verdict of guilty of murder, it is clear that the jury were satisfied beyond reasonable doubt that you did not kill your wife in circumstances amounting to provocation.
I am required to exercise my own judgment in arriving at an appropriate sentence. That said, I agree with both counsel that even though I would otherwise have been minded to impose a heavier sentence, it would not be appropriate for me to impose a sentence greater than that imposed at the first trial. You were successful in your appeal against the provocation ruling at the first trial and there are important public policy considerations of fairness why persons in your position should not be exposed to a heavier penalty after conviction for the same offence at a subsequent trial.
Your counsel conceded that the original sentence was within the range of available sentences, but argued that there should be a slight reduction in sentence to reflect the fact that there have been delays and attendant uncertainty in the legal process. It was said that you have had to undergo two trials and one appeal over a period of some years, through no fault of your own. Mr Stuart said that this was a relevant sentencing consideration, although he could not point to any authority for that proposition. I leave open the possibility that issues of delay or uncertainty may be relevant sentencing considerations in some cases. However, in the circumstances of this case, I do not believe that they are a factor meriting a reduction in sentence. Whilst not due to your fault, any delays in this case have not been out of the ordinary. Furthermore, the time which you have so far spent in custody is taken into account in the sentencing process. Uncertainty as to outcome is part and parcel of the legal process, a process of which you have had the full benefit.
Balancing as best I can the principles of sentencing enunciated in the Sentencing Act, including punishment, specific and general deterrence and rehabilitation, I have concluded that the appropriate sentence is that you be imprisoned for a period of 20 years. I fix a minimum period of 15 years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 1,413 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.
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