R v Zafar

[2024] NSWSC 1639

Supreme Court

New South Wales

Medium Neutral Citation:

R v Zafar [2024] NSWSC 1639

Hearing dates:

25 November 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Common Law

Before:

Sweeney J

Decision:

1. Mr Zafar is sentenced to a non-parole period of 16 years imprisonment with the balance of term of 5 years 6 months, making a total sentence of 21 years 6 months imprisonment, to date from 31 March 2022. The non-parole period will expire on 30 March 2038.

Catchwords:

CRIME — Sentencing — Murder — domestic violence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Munda v Western Australia (2013) 29 CLR 600; [2013] HCA 38

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rex (Crown)
Meraj Zafar (Offender)

Representation:

Counsel:
F Gray (Crown)
T Hughes (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Crimcorp Defence Lawyers (Offender)

File Number(s):

2022/28539

Publication restriction:

Nil

JUDGMENT

1. Meraj Zafar is to be sentenced for the offence of murdering his wife, Armina Hayat, in January 2022. He pleaded guilty to that offence in this court. The offence has a maximum penalty of life imprisonment and a standard non-parole period of 20 years imprisonment prescribed. The Crown did not submit that this offence requires the imposition of the maximum penalty.

2. The facts of the offence were agreed between the Crown and Mr Zafar. I summarise them as follows.

Agreed facts

3. The offender married Ms Hayat on 13 October 2021. He was aged 20 on the date of the marriage. Ms Hayat was aged 18 at the date of the marriage and 19 at the time of her death. The marriage was a private Islamic ceremony, not attended by the families of Mr Zafar or Ms Hayat. The marriage was not supported by either family, who had not met.

4. Ms Hayat was born in Bangladesh and came to Australia with her parents as a child. At the time of her death she was a second year medical science student at the University of Western Sydney.

5. Ms Hayat and the offender met through friends in 2018, when she was in year 10 at high school. They initially met in the company of their friends. During 2019, when Ms Hayat was in year 11, she and the offender began to meet by themselves. In 2021 the relationship between Mr Zafar and Ms Hayat was on and off again. In September 2021 Mr Zafar and Ms Hayat were making plans to marry.

6. During 2021 there were a number of occasions when Ms Hayat made complaints, to friends, of the offender being violent towards her. She did not make a complaint to the police.

7. On 31 May 2021 at 2:20am Ms Hayat called a friend, distressed, and asked if she could come and stay the night at the friend’s home. Her friend agreed. When Ms Hayat arrived shortly afterwards she was crying. Her friend saw bruising around Ms Hayat's throat, finger marks and thumb marks on the left side of her neck and bruising on her chest, left wrist, left arm and thigh. Ms Hayat told her friend that she had had an argument with the offender and he had hit and grabbed her.

8. The next day Ms Hayat went to the home of another friend. She was crying and upset. She told her friend that she had had an argument with the offender and he put his hands around her neck, resulting in her becoming unconscious. Her friend saw red marks on Ms Hayat's neck, which she said was a result of the incident.

9. Police analysed the offender’s mobile phone and found many messages between the offender and Ms Hayat from 15 December 2021 until 29 January 2022, which were annexed to the Agreed Facts. The messages from Ms Hayat referred to the offender's aggressive behaviour, his bashing her, and choking her, her pregnancy, that she wanted to end the relationship, that she was scared, that she was going to tell the police about his beating her. She asked for a divorce. The offender’s messages to Ms Hayat told her to pick up the call, or else she was not going out, that he would not let her work in a pharmacy, and that she did not have his permission to leave the house. He called her a "dumb bitch".

10. In September 2021 Ms Hayat and Mr Zafar were discussing marriage. In September 2021 Mr Zafar telephoned Ms Hayat's father to discuss his relationship with Ms Hayat. Mr Hayat was reluctant to do so.

11. On 8 October 2021 Mr Zafar approached Ms Hayat's mother and sister in the street outside their home. He was unknown to them. Mr Hayat arrived in the street and Mr Zafar said he wanted to talk about marrying Ms Hayat. An argument occurred in the street. A friend of the Hayats, Ms Sultana, intervened. Ms Sultana took Mr Zafar and Ms Hayat into her home, in the absence of Ms Hayat's parents, to discuss the issue. Ms Hayat's parents had wanted to meet Mr Zafar's family to discuss the marriage. Mr Zafar did not wish them to do so.

12. Mr Zafar telephoned Mr Hayat at 8:45pm. He was abusive to Mr Hayat and said "I will kill you". Mr Hayat went to the police and made a complaint. On 9 October 2021 a provisional Apprehended Violence Order was made against the offender for the protection of Mr Abu Hayat.

13. On 9 October 2021 Ms Hayat telephoned her father and said she wanted to marry the offender. She arranged to collect her belongings from home, and did so over the next few days. After that time, Ms Hayat and her parents had no further contact for the remainder of her life.

14. On 13 October 2021 Mr Zafar and Ms Hayat were married in a private Islamic ceremony with no family members in attendance.

15. Mr Zafar and Ms Hayat leased an apartment in North Parramatta and moved in on 14 October 2021. Neighbours in the building heard muffled sounds of arguing coming from Mr Zafar's and Ms Hayat’s unit approximately once a fortnight after they moved in.

16. In late November 2021 Ms Hayat sent a friend a photograph of herself in which her left cheek was red and swollen. Ms Hayat told her friend in messages that the offender had bashed her and caused the injury. She told her friend she regretted marrying the offender.

17. On 8 December 2021 Ms Hayat contacted a friend of the offender and asked her to contact her friend and ask for photographs of the offender on that woman's Instagram account to be deleted, as she found it upsetting there were photographs of her husband on another woman's Instagram account. Ms Hayat told the offender’s friend she wanted to leave him and get a divorce and that the offender would yell at her and be aggressive.

18. On 29 January 2022 the offender went to work. Ms Hayat remained at home.

19. At about 5:00pm the offender made arrangements with a friend to go out that evening. The offender told the friend he had had an argument with his wife. He left the premises at 7:52pm.

20. Ms Hayat telephoned a friend at 8:12pm that evening and told him she regretted marrying the offender.

21. The offender attended the unit block at 8:15pm.

22. At 8:30pm Ms Hayat sent a text message to her friend saying "I have nobody except you". Her friend replied "You have got no choice. You have to stay with him." Ms Hayat replied at 9:10pm saying "No, I hate him". That was the last contact anyone other than the offender had with Ms Hayat. Ms Hayat's friend sent repeated text messages to her from 9:17pm on 29 January until Monday, 31 January 2022. He did not receive any reply.

23. The offender left the unit block at 9:55pm. He killed Ms Hayat between the time he returned home at 8:15pm and left at 9:55pm, after Ms Hayat sent the message to her friend at 9:10pm.

24. The offender contacted a friend at 9:56pm and arranged to collect him. They spoke for 35 minutes as the offender drove to his friend's house. The offender advised that his wife had scratched him and agreed that the relationship was toxic. The offender’s friend observed scratch marks when the offender collected him. They spent the evening driving around until the offender dropped his friend back home at 12:20am.

25. The offender returned to the unit block at 1:01am on the morning of Sunday 30 January 2022. He left the unit at 1:21am holding what appeared to be some clothing or bedding in his hand. He returned to the unit block holding the same item at 5:53am.

26. The offender left the unit at 8:47am and returned at 9:30am with cat food and a brown paper bag. He left the premises at 9:33am, returning three minutes later with a black sports bag.

27. At 10:24am the offender left the unit and drove to Bunnings at Westmead in his work truck. He bought a 20 litre tub of hydrochloric acid. He returned home at 10:53am, put the hydrochloric acid into the bathtub in the unit and put Ms Hayat's body into the bathtub, in an attempt to dispose of her remains.

28. The offender conducted four Internet searches at 11:21am on 30 January 2022 in terms "Can hydrochloric acid burn through skin". He conducted a fifth search in the same terms at 7:45pm that evening.

29. At 11:30am the offender sent a text message to his mother stating he wanted to talk to her and he needed to meet her to tell her something. He left the unit at 11:45am and drove to his family home, where he met with his mother and drove to a local park to talk with her. The offender’s mother noted he had scratches and bruises on his neck and arms. The offender was crying and told his mother he had had a fight with Ms Hayat, who had become unconscious during the fight. He told his mother he did not want her to do anything. He drove his mother back to the family home. He returned to his unit complex at 2:45pm. He left a short time later. At 3:07pm he returned to Bunnings at Westmead and bought four additional 20 litre tubs of hydrochloric acid at 3:35pm.

30. The offender returned to the unit complex with the four tubs of hydrochloric acid which he carried inside between 3:41 and 3:44pm. He put the additional hydrochloric acid into the bathtub to further assist in the disposal of Ms Hayat’s remains, in an attempt to cause the decomposition of her body and to impede evidence as to the cause of her death.

31. The offender telephoned his mother shortly before 4:30pm and advised her that his wife was not breathing. The offender’s mother told him to call the ambulance to assist her. He replied "I'm not gonna call the ambulance, I'm scared. The police will get me and they will put me in gaol." The offender’s mother again told him to call the ambulance. He repeated he did not want to as he did not want to go to gaol. The offender asked his mother how much a ticket to go overseas was.

32. The offender’s mother called the ambulance at 4:32pm and advised that her son had been in a fight with his wife and his wife was not breathing. The offender was recorded on CCTV leaving the unit at 4:29pm.

33. Police attended the unit at 4:36pm. When there was no answer to their knock they forced entry to the apartment. They found Ms Hayat’s body, naked, lying face down in the bathtub with her face hidden. She was not moving and there were no signs of breathing. Police found five 20 litre hydrochloric acid containers in the bathroom. There was a brown coloured liquid in the bath covering the lower portion of Ms Hayat’s body. There was a strong chemical odour in the air. Paramedics and senior police officers arrived and declared Ms Hayat to be life extinct.

34. At 5:00pm on Sunday 30 January the offender spoke to a friend. The friend saw that the offender had a bottle of alcohol in his truck and he looked intoxicated. The friend noticed three scratches on the offender’s neck. The offender told his friend he married a girl last year, her parents did not like him, he married her “to have kids”. The offender told his friend that he had killed someone.

35. The offender conducted four internet searches at 8:30pm on 30 January in terms "How many years do you get in Sydney for murder."

36. At 9:45pm that night the offender met another friend and they spent the night driving around and eating at various places. The offender dropped his friend home between 3:00am and 3:30am.

37. On Monday 31 January police contacted the owner of the truck which the offender had driven to Bunnings. The owner of the truck spoke to the offender and told him that police were looking for him and he needed to hand himself in.

38. At approximately 11:00am on 31 January the offender contacted Parramatta police station and told police he knew he was wanted by police and that he was going to attend the police station and turn himself in. The offender surrendered to police at 12:20pm on Monday, 31 January 2022. He was arrested. He told the arresting officer "I don't want to do 20 years. I was like you know what, I have done a mistake. I have to do it."

39. At the time of autopsy, Ms Hayat was unable to be identified by her family due to the decomposition of her body resulting from the immersion in hydrochloric acid. Her identity was confirmed using DNA samples.

40. The doctor who conducted the post-mortem said that the examination was greatly limited by chemical corrosion.

41. The agreed facts stated:

"The offender killed Ms Hayat by obstructing her breathing through applying compression to her neck and/or smothering her. At the time the offender committed the relevant act, the offender acted with reckless indifference, in that he realised that such an act would probably cause the death of Ms Hayat, and nonetheless he continued to commit the act.

The motive the offender had at the time of his act was his anger at the prospect of Ms Hayat leaving him and the end of the marriage. This was in the context of Ms Hayat being pregnant at the time of her death."

Victim Impact Statements

42. The Victim Impact Statement of Ms Hayat’s mother Mahafuza Akter was accompanied by photographs of the family, including on milestone days, the receipt of their citizenship and Ms Hayat’s high school graduation. Ms Akter’s statement was read on her behalf. She spoke of her pain and suffering from having her beautiful, intelligent daughter taken from her.

43. Abu Hayat, Ms Hayat’s father, read his statement. A gentle father who was so proud of his daughter cannot fathom her tragic loss.

44. The words of Ms Hayat’s younger sister, aged 11, were not read. Her heart is broken from the loss of her older sister.

45. I acknowledge their grief and express my sympathy for their loss, including the loss of a future with their daughter and sister.

46. The Crown has applied, pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the Victim Impact Statements of the family to be taken into account by the court in connection with the determination of the punishment for the offence, on the basis that the harmful impact of Ms Hayat's death on her family is an aspect of harm done to the community. I consider it appropriate to do so and I do.

Objective seriousness

47. In assessing the objective seriousness of the offence I take into account the following. The offender acted with reckless indifference to life in killing Ms Hayat by obstructing her breathing by applying compression to her neck and/or smothering her. He acted in such a way because of his anger at the prospect of Ms Hayat leaving him and ending their marriage. This was against a background of controlling and violent behaviour by the offender. The offence occurred in the home of Ms Hayat, where she was entitled to feel safe. The offender did not undertake any significant planning or organisation in killing Ms Hayat. I also take into account his conduct in relation to her body after her death. Taking into account those factors I assess the offence as in the mid range of seriousness.

48. Although it is not a matter which is relevant to the seriousness of the offence, in sentencing the offender I must take into account that he was the subject of Community Corrections Orders, albeit for driving offences, and subject to a provisional Apprehended Domestic Violence Order to protect Ms Hayat's father.

Subjective circumstances

49. The offender was 20 at the time of his offence. I take into account his youth, and that he did not have his family’s support once he married Ms Hayat, although he was able to contact his mother after he killed Ms Hayat. He is now 23.

50. It was submitted on his behalf that the offender's mental health conditions reduced his moral culpability for the offence. The Crown disputed that submission. This requires a close examination of the reports of psychiatrist, Dr Olav Nielssen, psychologist, Mr Tim Watson-Munro, and records from Justice Health after the offender's admission into custody.

51. Mr Watson-Munro interviewed Mr Zafar in September and November 2024. He said Mr Zafar reported a prior history of use of illicit drugs and heavy drinking before his marriage, but said he was not affected by illicit drugs or alcohol at the time of his offending.

52. Mr Zafar told Mr Watson-Munro he was still suffering severe symptoms of depression at the time of interview, and he had experienced significant symptoms of depression, anxiety and low self-esteem over the years. Mr Zafar told Mr Watson-Munro that there had been a significant escalation in his depression and anxiety since the death of his wife. He reported symptoms of depressive disorder.

53. Mr Watson-Munro said testing (by self-reporting questionnaire) indicated that Mr Zafar is continuing to suffer a severe and recurring depressive disorder. Mr Watson-Munro said "It would… appear that whilst Mr Zafar was not suffering any major psychiatric disorder at the time of his offending, he was nonetheless significantly depressed".

54. Dr Olav Nielssen interviewed Mr Zafar in August 2024.

55. Mr Zafar told Dr Nielssen he was not affected by alcohol or drugs at the time of the offence. He said he had been prescribed antidepressant medication in prison. He said that when he first went into custody he was hearing voices and "seeing stuff".

56. Dr Nielssen said Mr Zafar reported some periods of depression and anxiety before his offence, which became worse after he went into prison. Mr Zafar told Dr Nielssen he had hallucinations of voices as a child and after his arrest. He denied experiencing other symptoms of psychosis.

57. Mr Zafar told Dr Nielssen he had drunk alcohol heavily in his mid to late teens, but did not drink alcohol or smoke cannabis after he married.

58. Dr Nielssen reviewed Mr Zafar's Justice Health records, which were tendered by the Crown in the sentence proceedings.

59. Dr Nielssen noted from those records that Mr Zafar reported auditory and visual hallucinations to health workers in custody but Dr Elliott, a psychiatrist, noted there were no other symptoms of psychosis and said his presentation was not consistent with first onset psychotic illness. He said he did not find Mr Zafar to be depressed.

60. Mr Zafar also reported to Dr Nielssen experiencing auditory hallucinations, but Dr Nielssen said "There were no odd usages or beliefs… suggesting the presence of an enduring psychotic illness." Dr Nielssen said Mr Zafar reported auditory hallucinations beginning in childhood and occurring after his arrest but information not supporting a diagnosis of psychosis were the absence of other symptoms of psychosis, such as apparently delusional beliefs, communication disorder or abnormal emotional responses. Further, he had not been treated with antipsychotic medication while in custody and there had been no progression of symptoms which might be expected if Mr Zafar had an emerging psychotic illness. He said Mr Zafar has not developed a psychotic illness.

61. Dr Nielssen diagnosed Mr Zafar with a substance use disorder in long-term remission, based on Mr Zafar's account of past drug use, but noted that Mr Zafar had said he stopped all substance use while living with Ms Hayat and substance use was not a factor at the time of his offence.

62. Dr Nielssen diagnosed Mr Zafar with a depressive illness in remission. He said this diagnosis was made from the diagnosis made by the doctor who initiated treatment with antidepressant medication. He said Mr Zafar was not found to be severely depressed when assessed by Dr Elliott, and did not appear depressed during his interview. He said however that Mr Zafar had reported insomnia, negative thoughts and thoughts of self harm and that the medications he had been prescribed had been helpful.

49. Counsel for Mr Zafar relied on the opinions of Dr Nielssen and Mr Watson-Munro as to the diagnosed substance use disorder, depressive illness and the possibility of an emerging psychotic illness. He accepted the situation in respect of the latter was unclear, and it was not suggested that the offence was committed under psychosis. He relied on a message sent by Mr Zafar to Ms Hayat on 17 December 2022 "It's black magic", "Not me" as indicating a minor disturbance of the offender’s mind.

50. Dr Nielssen is an experienced and sympathetic psychiatrist. His view was that Mr Zafar was not suffering from a psychotic illness at or around the time of the offence. On the material in the Justice Health records I am not persuaded that Mr Zafar’s reported hallucinations in custody were genuine.

51. I accept that in the past Mr Zafar had a substance use disorder. However, it was his position to the report writers that drugs and alcohol were not a factor in his offence. Therefore, the diagnosed substance use disorder in remission does not reduce Mr Zafar's moral culpability for the offence or the need for general deterrence.

52. There are conflicting views about Mr Zafar's depressive disorder. Mr Watson-Munro's opinion seems to be based on Mr Zafar's self-reports. Dr Elliott, the psychiatrist in prison, did not consider Mr Zafar to be depressed when he saw him and nor did Dr Nielssen. However, Mr Zafar has been treated with antidepressant medication in custody. Therefore, I accept there are some symptoms of depression. However, accepting his reports that he was depressed and anxious at the time of the offence, there is no evidence that it was at a level which reduces his moral culpability for the offence or reduces the need for general deterrence for this serious offence. It may make his experience of custody more difficult.

53. The offender wrote a letter of apology, which was read by his counsel to the Court and the victim's family. The Crown submitted that his remorse as expressed in that letter was qualified. He mixed his expressions of remorse with concern for the consequences of his crime for himself, but I accept his remorse is genuine.

54. He pleaded guilty in this Court shortly before his trial. The parties agree that the appropriate discount of his sentence for his guilty plea at that time is 10%, and I will so proceed.

55. His criminal record is limited. There were driving offences, which are not of great significance in sentencing him, except that he was subject to Community Corrections Orders for two such offences when he committed this offence. He also has the offence of intimidating Mr Hayat, for which he was sentenced to 5 months imprisonment. That sentence commenced on 30 January 2023 and expired on 29 June 2023. Mr Zafar went into custody on 31 January 2022. The issue then is whether there should be some adjustment of the commencement date of this sentence to take account of that prior sentence. Given that that was a separate offence I consider it would not be appropriate that the sentence for this offence totally subsume the sentence for that offence. However, I do not consider it appropriate to make this sentence totally consecutive on the previous sentence. I have decided to partially accumulate this sentence on the prior sentence, to the extent of two months, that is to commence this sentence two months after Mr Zafar went into custody.

56. I take into account that he was employed before he committed this offence and he is accepting of his need for rehabilitation. Given his youth, his limited prior record and that attitude it seems he has positive prospects of rehabilitation.

57. In sentencing the offender I must vindicate the dignity of the victim Ms Hayat and express the community's disapproval of the crime against her: Munda v Western Australia (2013) 29 CLR 600; [2013] HCA 38.

58. Taking all those matters into account I sentence you Mr Zafar to a non-parole period of 16 years, with a balance of term of 5 years 6 months, making a total sentence of 21 years 6 months imprisonment, to date from 31 March 2022. The non-parole period will expire on 30 March 2038.

59. Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct that this offence is to be recorded on the offender's criminal record as a domestic violence offence.

60. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I ask that the offender’s legal representatives advise him of the existence of that Act and its application to this offence.

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Decision last updated: 19 December 2024