R v Yasso
[2002] VSC 468
•20 September 2002
| 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: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 SEPTEMBER 2002 | |
DATE OF SENTENCE: | 20 SEPTEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. YASSO | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 468 | |
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SENTENCE – Murder – Victim wife – Non-acceptance by offender of wife's termination of the marriage – History of subsequent harassment – Confrontation in breach of Intervention Order – Prolonged ferocious attack – No remorse – Importance of general deterrence – 20 years' imprisonment with a non-parole period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J. Leckie | Office of Public Prosecutions |
| For the Accused | Mr. D. Brustman | Victoria Legal Aid |
HIS 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 canvass the circumstances surrounding the commission of this offence.
You married Eman Hermiz in Bagdad in March 1990. Subsequently you learned that you were entitled to British citizenship, having been born in England, and in 1997 you went to reside in London, on the basis that you would sponsor your wife so that she could join you there.
For reasons which I will mention later this did not occur, and eventually Ms Hermiz asked her sister, Hanna 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, and in September 1999 she enrolled at the Broadmeadows Language Centre to learn English. In Iraq she had been a hairdresser, and she obtained work at Raghad's Hairdressing Salon in Wheatsheaf Road, Glenroy.
There was some conflict in the evidence as to the level of communication between you and your wife during the period that you were living in London. I think it probable that contact did occur over that period, and I am also of the view that you were aware, prior to your wife coming to Australia, that she intended to do so.
That communication continued once she had arrived in Australia, and an agreement was made that she would sponsor you.
You arrived in Australia on 30 October 1999 and went to live with your wife at the Broadmeadows home of her sister. 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 Eman as your sponsor.
You lived as a couple at the Broadmeadows home for about four or five months. During that time there were two or three arguments about money, and specifically about your gambling habits at Crown Casino.
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 with a landscape gardener. At a later time you obtained work as a casual cleaner.
On 24 July 2000 your wife obtained a loan of just under $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 Ms Hermiz 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 visiting her sister, and from pursuing her occupation as a hairdresser at Raghad Salon. You also opposed her attendance at English classes.
At an indeterminate time, prior to February 2001, there were rumours about your wife having an affair with Nasir Haba, a man she had met at the English school. When confronted with this by your friend, Salam Allos, your wife denied it, although she admitted that Haba had driven her home from the Language Centre.
Your wife, understanding the potentially fatal consequences of such a liaison in Iraqi culture, was extremely frightened at this gossip. According to Mr Allos you accepted your wife's denial of the relationship.
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 in the garage holding a pot. Mr Haba denied that this had occurred.
In late February 2001 your wife told Ms May Farah, a Social Worker with Lebanese Welfare, of an incident where she had cooked food for some of the 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 one and the same incident. However, you were very angry at what you perceived to have occurred and you confronted Mr Haba at his flat. He denied your accusation of a relationship. You did not believe him and you later damaged his motor car. 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 their friendship involved Eman discussing with him her worsening marital problems. Indeed, Mr Haba said that when Eman subsequently left the Glenroy flat, in which she had lived with you, the only contact he had with her was by telephone. Certainly there was evidence that Ms Hermiz had rung him many times, including 70 actual calls between 4 and 27 April.
At the February meeting with Miss Farah your wife told her 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 Miss 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, Hanna Kalandos, which was now situated in Meadow Heights, an address of which you were initially unaware. Ms Hermiz spoke to her sister of her fear of you.
You wished your wife to return to you and sought the assistance of her sister to persuade her to do so. Despite the efforts of Mrs Kalandos, Eman could not be persuaded to give you another chance.
Shortly after your wife had left you enlisted the services of a priest in a further endeavour to bring about a reconciliation. However your wife was not willing to accept this intervention.
On 13 March Ms Hermiz obtained an interim intervention order against you. Its terms were explained to you by police on 16 March.
On 19 March the Department of Immigration was advised of the change in your relationship with Ms Hermiz, and on 23 March an application for a permanent intervention order was heard at the Broadmeadows Magistrates' Court.
The matters about which your wife, Eman, told the court included you sharpening knives in front of her and threatening to kill her and her family, your unwillingness to allow her to work and your prohibition on her talking to or seeing anyone.
Another of the complaints of Ms Hermiz was of you accosting her in the street about 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 Eman's niece, Susan Kalandos, who confirmed your angry threats. This appears to be the event also witnessed by Mr Salam Allos, who noticed that your wife was frightened 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 court that prior to your wife leaving you, agreement had been reached to make a fresh start and you claimed to still love her.
The magistrate accepted the evidence of Ms Hermiz 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 claimed to understand the terms of that order. Later your friend Gamal Salib advised you to comply with the order and to keep away from your wife.
In the course of the Magistrates' Court hearing you had also told the magistrate that Ms Hermiz had stolen your Mastercard. It was claimed by you that using this card your wife had taken $1,000 from your account on 12 March. In fact, an Autobank 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 Ms Hermiz on her mobile phone 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 brothers on 15 occasions and 11 times from the Glenroy Police Office. A number of these telephone calls contained death threats to Ms Hermiz and the Hanna-Kalandos family.
Your vindictive attitude to Ms Hermiz was also exemplified by your actions in placing the furniture from the Glenroy flat into storage on 29 March and lying to the police on 1 April when you claimed that your wife had stolen it. It was on that occasion that you also stated that your British passport was missing. Since it had been carried on your person as recently as 29 March when you showed it to the removalist Dale Splait, 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 Ms Hermiz would have you thrown out of the country. This unwelcome news was confirmed when on 11 April your application for permanent residence was refused. This followed a written withdrawal by Ms Hermiz 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 enquired if it was possible to cancel your wife's 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 Ms Hermiz. 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.
One manifestation of Ms Hermiz'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 told the receptionist that you were the brother of Ms Hermiz and that there was a family problem. Under this guise you attempted to obtain details of your wife's whereabouts. That information was not provided to you.
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, whilst on 7 May she purchased a new mobile phone in order to get a new telephone number.
On 8 May Ms Hermiz attended her language class at about 9.20 a.m. There was a morning break at 11.15 a.m. Ms Hermiz did not return after it.
On your account of events given to the investigating police in a video taped interview, you travelled twice to Meadow Heights on that same 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. However, on the evidence I am unable to conclude that you came armed with a knife with the express intention of killing Ms Hermiz.
The events leading up to the killing were observed by a number of independent witnesses. Their description commences with a confrontation inside the Meadow Heights shopping complex between you and Ms Hermiz. You were demanding, "Where's my money", and Ms Hermiz was heard responding, "Leave me alone."
At about 11.30 a.m. you were both seen at the side of the shopping complex engaging in a loud conversation. One witness described each of you as being upset and angry. 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 motor vehicle 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. This was occurring in the vicinity of the building wall adjacent to some pallets.
At about the same time the witness Chantel Hardaway heard male and female voices yelling. The female was telling the male to leave her alone. Miss Hardaway called to her sister Amanda, who came from the nearby medical centre.
As the sisters ran towards the couple, being you and your wife, they also realised that what they had first thought were punches were in fact knife blows. As Ms Hermiz was being hit with the knife she was screaming and stumbling backwards. Miss Amanda Hardaway yelled at you to leave the lady alone. You looked at her and then stabbed your wife twice 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 looked up at him before stabbing your wife again.
You then quickly left the scene, moving around the back and in through the rear door of the shopping centre. By this time Ms Hermiz 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 video taped 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. 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 stated 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 Ms Hermiz refused to give you the mobile phone you produced the knife. You stated 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 Ms Hermiz was up against the shopping complex wall. You also told the police that you were holding Ms Hermiz while stabbing her.
Further, you acknowledged that you observed 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. However, I do not believe the jury would have accepted your assertion.
First, there was evidence before the court of the traumatic physical consequences that awaited any Iraqi wife who spat at her husband.
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 would spit at him.
Thirdly, it is common knowledge that one effect of the fear which you say your wife exhibited is to promote dryness in the mouth.
In the course of your police interview you claimed that you did not intend to kill Ms Hermiz, that you did not know what was going through your mind when you were stabbing her, and that you did not know where you stabbed her, or the number of times. In fact, 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 the deceased'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 require that he kill his wife. However, you never claimed to the police that this was a motive for the killing.
Further, you stated 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 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 stated to the police that the fact that people within your community had knowledge that Ms Hermiz 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 Ms 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 grave offence. Once your wife had left you, and it was apparent that she did not wish to return, you pursued a course of harassment, which included accosting her in the street, in breach of an interim intervention order, and the frequent use of the telephone to deliver threats against her wellbeing and that of her family.
You deliberately sought out your wife and confronted her, knowing, as you stated 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 desist.
Having inflicted the knife wounds upon Ms 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 woman 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.
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 premature 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. Mrs Hanna 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.
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. 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 45 years old, having been born in London where your parents, who are Iraqis, were then living. At that time your father was undertaking studies in the field of electricity. He died in 1993 but your mother is still alive in Baghdad. Apparently she is ignorant of this matter. You were the third of seven children. You had two elder brothers, one of whom died in an accident, and three younger brothers, Basil, Sahad and Foraz, all of whom live in Baghdad and work as a carpenter, hotel worker and soldier respectively. The youngest member of your family, Irkmaz, a sister aged 22, is a student of languages who lives with your mother. Since coming to Australia you have had no contact with any of your family and as a result of this case you do not desire to have any further contact with your mother.
When you were aged four you returned from London to Baghdad, where you attended primary and secondary school in the state system. Because your father developed a cardiac condition which affected his capacity to work, your family could not afford university fees. Further, you were required to work to augment the family income. However, you did undertake part-time studies at night at Baghdad University, studying economics for three years. During the day you worked 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. This was at the time of the Iraq-Iran War, 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 work as a carpenter and fruiterer until 1990. In March of that year you married Eman Hermiz. According to your counsel, when you went to the United Kingdom in 1997 you lived in a one-bedroom flat in Acton and worked part-time in a warehouse packing goods. In 1998 that became full-time employment. Your reason for going to the United Kingdom was, in effect, to leave a nation that was in turmoil and settle in a country having social and economic stability. As mentioned earlier, you were able to reside in England because you are an English citizen by birth.
It was planned that you would sponsor your wife so that she could obtain a visa to come to the United Kingdom. It took time to comply with various financial and other formalities, but in 1998 you claim to have faxed the relevant papers to the British Embassy in Amman, the city in Jordan where your wife was then residing. The nature of the visa was such that it had to be utilised within one month.
Although you have instructed your counsel that prior to this time you had weekly contact by telephone with your wife, it was put that during this period you could not contact her 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 eight or nine months prior to this incident.
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. I am instructed that you have no interests or hobbies. 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. 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 500 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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