R v Zandipour
[2016] VSC 387
•12 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0073
| THE QUEEN |
| v |
| KYLE ZANDIPOUR |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 June 2016 |
DATE OF SENTENCE: | 12 July 2016 |
CASE MAY BE CITED AS: | R v Zandipour |
MEDIUM NEUTRAL CITATION: | [2016] VSC 387 |
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CRIMINAL LAW – Sentence – Murder – Brutal attack on stranger late at night on city street – Kicks to head and neck causing vertebral artery to tear – No attempt to assist the victim or ascertain whether he was injured – Some remorse – Limited prior convictions – Good prospects of rehabilitation – Importance of general deterrence for offending of this kind – Sentenced to 20 years’ imprisonment with 16 years non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC | Office of Public Prosecutions |
| For the Accused | Mr R. van de Wiel QC | Defteros Lawyers |
DRAFT
HER HONOUR:
Kyle Zandipour, you have been found guilty of the murder of Joshua Hardy on 18 October 2014 in Melbourne. You were arrested later that day, following your attendance, as requested, at the St Kilda Road Police Station in the company of your solicitor. You have been held in custody since that day.
You pleaded not guilty to murder, and you were initially tried before a jury in February of this year. That jury was unable to reach a verdict on the charge of murder. The jury in a second trial, which commenced on 16 May 2016, delivered a verdict of guilty.
Between the first and second trials, you offered to plead guilty to a charge of manslaughter. That offer was made in open court. This is said to be an indication of your remorse and your preparedness to take responsibility for your actions.
You are now 29 years old. At the time of the offence, you were 27 years old and lived in an apartment on St Kilda Road with your fiancée. You were employed as a commercial banker in the ANZ Bank.
On Friday, 17 October 2014, you had arranged to meet after work with an old school friend, Matthew Bell. You spent the evening quietly at your apartment with your fiancée and Mr Bell. Your fiancée went to bed early. You and Bell played PlayStation and drank alcohol late into the night. Although Bell consumed the best part of half a bottle of vodka, there is nothing to suggest that you drank other than moderately.
Just before 1.00am, the two of you decided that you were hungry and you went to the nearby McDonald’s restaurant on St Kilda Road for a late night snack. You purchased food inside and then went to the outdoor eating area to eat. There were two or three tables outside, but no chairs, so you and Bell leant up against one of the tables, looking out onto St Kilda Road. You quietly and, apparently contentedly, ate your food.
At approximately 1.03am, the deceased, Joshua Hardy, arrived at the front of McDonald’s. He initially walked to the entrance, and then went and leant against a table not far from where you and Bell were seated. He spent several minutes there. You told the police that he was staring at you. According to Bell, he was staring into McDonalds. From his position as seen on the CCTV footage, he was most likely staring in the direction of McDonalds. In either event, Mr Hardy did not buy or consume any food, so his presence in the outdoor eating area may have seemed a little strange to you.
Mr Hardy was very drunk. He had attended a valedictory dinner at Trinity College that evening and had then gone on to a 21st birthday party in Fitzroy Street, St Kilda. He had consumed a large amount of alcohol, and two of his friends had put him in a taxi with instructions to the driver that he be taken home to Trinity College in Parkville.
For reasons that remain unexplained, Mr Hardy got out of the taxi on Queens Road and, from there, headed around the back of the Victoria Police Centre and onto St Kilda Road, crossing near Melbourne Grammar School, just up the road from McDonald’s. By this stage, he had lost his wallet. He had also lost his mobile phone at some point, because it was not on him and was never found.
CCTV footage of Mr Hardy in the vicinity of the Victoria Police Centre shows him to be walking as one might expect a very drunk person to walk, staggering and swaying from side to side, although he is also captured running quite purposefully at one point.
Matthew Bell said that he first noticed Mr Hardy looking over one of the glass panels surrounding the outdoor tables at McDonalds, having come from the road opposite. He said Mr Hardy just stood there for a little bit and did not say anything to you or to Bell. He was ‘just sort of hovering’ next to you both. Bell thought him to be highly intoxicated, judging from the way he looked and the way he was walking.
Bell said that Mr Hardy looked a little bit lost, as though he did not know where he was going or what he was doing.
After several minutes, Mr Hardy got up and walked a short distance along the footpath in the direction of the city, but just stopped and stood for a couple of minutes, again looking lost. He then walked back towards McDonald’s and leant up against the table beside you and Bell. This time, he was facing the two of you.
You and Bell finished your food. When you got up to leave, you went first, with Bell following. You had to walk through a narrow gap in front of Mr Hardy to get out. You passed in front of him without incident and walked a few metres along the footpath towards the entrance to McDonalds, away from him. When Bell tried to pass in front of Hardy, Hardy stuck his leg out, apparently trying to trip Bell. Bell told the jury that he turned to Hardy and said, ‘Why the hell are you trying to trip me?’. According to Bell, Hardy stood up and asked whether Bell had a phone. Bell said, ‘Why would I let you use my phone when you tried to trip me?’. Hardy repeated the question three or four times, although not in the same way each time. He was mumbling and slurring his words, and Bell thought that he was being a bit condescending, as though Bell could not understand him.
By this stage, you had turned around, seen that something was happening between Bell and Hardy, and you walked back to where Bell and Hardy were standing.
Hardy was standing facing Bell. You positioned yourself to the right of Bell and to the left of Hardy. Bell held one hand out towards Hardy and, when Hardy reached for Bell’s hand, Bell knocked Hardy’s hand away. Hardy took half a step towards Bell and Bell pushed him on the chest, which made him stagger backwards. Hardy then took two steps forwards towards Bell, with his left arm slightly outstretched and his palm facing forward in what could be interpreted as a questioning gesture.
This is when you intervened. Without warning, you grabbed Hardy’s left arm with both of your hands and forcefully swung him around and onto the ground, head first. Bell said he heard a sort of a thud when Hardy hit the ground. CCTV footage shows that upon bringing Mr Hardy to the ground, you kept your body and head down before standing upright to deliver a number of kicks.
The CCTV footage shows you inflicting three forceful kicks to what appeared to be Mr Hardy’s head and neck area. The force of one of these kicks caused the whole of Mr Hardy’s body to swing around slightly from its initial position. You then used your right leg and foot to stomp on Mr Hardy’s head, before turning and walking away with Bell.
Nothing in the CCTV footage indicates that, once thrown to the ground, Mr Hardy made any attempt to get back up. He was face down on the pavement, on his stomach. In his evidence, Bell said it looked at one stage as if Hardy was trying to lift his head up off the ground – ‘just a little bit’, ‘just slightly’, he said. However, there was no movement in Mr Hardy’s arms or legs, and Bell said he could not tell whether he was conscious or unconscious. He did not make any noise or any attempt to cover himself or protect himself.
As a result of being flung to the ground and kicked and stomped on, Mr Hardy suffered a number of injuries to his head and neck. He had bruises, abrasions and lacerations to his face and head, and sub-galeal haematomas in three places under his scalp. There was a deep soft tissue bruise on the left side of his face below the left ear, with the bruising extending to the cervical spine. The cause of death was identified as a subarachnoid haemorrhage resulting from a lacerated left vertebral artery. Such an injury is typically seen when blunt force is applied to the head and neck, and the head is suddenly set in motion, flinging backwards and sideways, putting stress on the artery and causing it to shear.
Having delivered the fourth blow – the stomp – to Mr Hardy’s head, you walked away from the scene with Bell. You did not stop to see if Mr Hardy was injured or whether he needed help, and you brushed off a young woman who had come out of McDonald’s and was alarmed to find Mr Hardy face down on the pavement, motionless. You and Bell walked across the southbound carriageway of St Kilda Road towards the other side. You were followed by another McDonald’s patron, Brent Holtham, who caught up with you on the median strip. You pushed him and then ran off across St Kilda Road, making your way via the back streets to the rear entrance to your apartment. Matthew Bell also left, but took another route. The two of you met up near your apartment.
Mr Hardy was conveyed to the Alfred Hospital and pronounced dead shortly after his arrival.
Bell told the Court that back in your apartment, the two of you discussed a ‘hypothetical’ involving what would happen if Mr Hardy died. However, he said that it was not something that you thought could have happened or would have happened. The hypothetical was discussed because of the reaction of the people outside McDonald’s and because of Mr Hardy’s appearance when you left him. There was no discussion between you and Bell as to why you kicked Mr Hardy or threw him to the ground.
I doubt that you properly understand to this day why you attacked Mr Hardy in the way that you did. Your conduct was utterly senseless.
In the answers that you gave to the police shortly after Mr Hardy’s murder, and again in the evidence that you gave at the sentencing hearing, you said you feared that Mr Hardy was going to attack you and Bell. You maintain that you acted in self-defence. You said that you kicked Hardy to keep him down and because you ‘panicked’ once you had brought him to the ground.
In finding you guilty of murder, the jury must have rejected the possibility that you were acting in self-defence when you attacked Mr Hardy. It must have found that you did not believe that what you did was necessary to protect you or Bell from death or really serious injury. Insofar as you maintain that you had a belief that it was necessary to do what you did because you feared something less than the infliction of death or really serious injury, I do not accept this explanation. It is not consistent with what is seen on the CCTV footage or with the evidence of Bell, who was quite clear that at no time did Mr Hardy’s actions or behaviour cause him to fear for himself in any way.
Mr Hardy did not represent any kind of threat to you or Bell and I do not believe that you perceived him as such. You had the opportunity to observe him over a number of minutes. He had ‘hovered’ beside you and Bell while you went about eating your food, apparently unperturbed. You had seen him walk up the road a short distance and walk back again. Bell described Mr Hardy as walking ‘not at the same pace’ and as a bit ‘side to side’. You also described him to the police as ‘swaying’ when he walked and as bumping into trees. As I have said, in the CCTV footage he has the gait of a classic drunk. He had poor control of his limbs. This made him an easy target rather than a threat.
Your description in the police interview of Mr Hardy behaving aggressively towards you and Bell is a fabrication. Mr Hardy did not, as you asserted to the police, ‘rush’ towards either of you during that final fatal encounter. He stepped towards Bell, was pushed backwards and stepped forward again. He was asking to use a phone. It is no explanation for your pre-emptive strike that you thought Mr Hardy could have been on drugs. Whatever he might have consumed or taken, he did not present as a threat.
Indeed, rather than being threatening, Mr Hardy appeared vulnerable. Bell’s description was that he seemed ‘a bit lost’. Mr Hardy had lost his wallet and had no phone. He was alone, very drunk and a fair distance from the safety of his bed. He needed help.
Although you did not know that Mr Hardy had lost his wallet and phone, or whether he was drunk or drug-affected or both, the CCTV footage and, importantly, Bell’s evidence indicate that Mr Hardy was neither aggressive nor especially intimidating. At worst, he was behaving a little strangely and was an annoyance to you and Bell.
Having carried out the attack on Mr Hardy, you then left the scene without demonstrating the slightest concern for his well-being. You had thrown him head first onto the ground and then kicked him about the head and neck several times, but you apparently gave no thought to the consequences.
In the light of all this, I do not accept the submission made by your barrister that ‘this is one of the lowest levels of murder’.
However, I do accept that your attack on Mr Hardy involved a spur of the moment decision. It was not calculated or planned or, indeed, in any way anticipated by you. Up until the moment when you grabbed Mr Hardy’s arm, you were having a quiet night with an old friend. You had no beef with Joshua Hardy. Barring one incident to which I will refer in a moment, you were not in the habit of picking fights with people. Your actions involved a moment of madness – six seconds of madness to be precise. The gravity of your offending and your moral culpability must be assessed in this context.
This is in no way to diminish the significance of the consequences of your actions to Mr Hardy and his family, or the profound loss to his friends and to the community as a whole that his death entails.
The Court received a large number of victim impact statements. Most were read out in court, either by the prosecutor or by the victim, him or herself. They were eloquent and heart rending. Mr Hardy was a young man brimming with potential, whose death has left an enormous hole in many lives, most particularly in the lives of his mother, father and younger sister. His family considered themselves very blessed to have had him in their lives and they are devastated by his loss. They, his extended family and his legions of friends, along with the communities to which they belong, mourn him deeply.
Mr Zandipour, your actions have caused untold suffering. Mr Hardy’s father, David, told the Court about the 100 feet tall waves of grief that crash over him. Six seconds of mindless violence has unleashed a Tsunami of grief that has swept over all of those who loved Joshua Hardy. Their lives will never be the same. I have had regard to their victim impact statements in sentencing you.
In order to assess your culpability and degree of responsibility for killing Mr Hardy, along with your prospects of rehabilitation, I must also have regard to your personal circumstances.
A report tendered on the plea by Dr Nicholas Owens, a consultant psychiatrist, sets out your personal history generally, along with more specific information about your psychiatric history and your current mental health, which I will deal with presently.
You enjoyed a relatively happy and unremarkable family life, although your family moved around a lot and your parents separated when you were young.
You were born in England and your family moved to Australia when you were 18 months old. Your father was an engineer who owned his own business manufacturing and selling kitchenware, a job that resulted in constant travel both domestically and overseas. During your childhood, your family moved frequently and you lived for a few years in each of Perth, Melbourne and Queensland. The longest period spent in one place was three years in Melbourne in your late childhood and early teens. Moving between schools made it difficult for you to form friendships, and this might explain why Matthew Bell, with whom your friendship dates back to Grade 2, is such an important person to you. You describe him as being like a brother.
Your parents separated when you were quite young, and you lived with your mother and sister. Dr Owens reported that you believed your mother to be ‘very obsessive’ about you, and your father to have put you under a lot of pressure at a very young age, particularly in regard to following him into the family business. You described your relationship with your parents as being characterised by a sense of duty, combined with ambivalence based on your desire to pursue your own life goals, and associated feelings of guilt.
You left school in Year 9 and initially worked for your father, but subsequently went on to chart your own course in life, finding work independently, most recently with the ANZ Bank. You believed yourself to be good at the work that you were given to do at the Bank, although you found it difficult and stressful at times.
According to Dr Owens, you emerged from a childhood marked by frequent moves of residence and school, as well as parental relationship breakdown and few enduring friendships, with the result that you placed great value on protecting those friendships that you had developed. You saw yourself as someone with a tendency to look out for other people, feeling responsible for the financial security of your mother and your fiancee’s family in Russia. You also described yourself as regularly counselling Mr Bell about his problems. Dr Owens observed that you seemed to regard yourself as someone whose responsibility it was to stay strong for others who depended on you.
While that is commendable, nothing in your personal history reduces the moral culpability that you bear for the killing of Mr Hardy.
On your behalf, it was submitted that a number of factors militated in favour of a lower sentence, including what was said to be your exceptional work history, your unselfish nature, the level of support given by your family, your conduct while in prison, all of which indicated, so it was said, the greatest potential for rehabilitation. Your own evidence emphasised your remorse, which is relevant to your prospects of rehabilitation and to the need to specific deterrence in sentencing you.
You gave direct evidence of your remorse at the plea hearing. You apologised to the Hardy family, telling them and the Court that you wished that you could give Joshua Hardy his life back.
You also wrote a letter to the Court expressing your remorse. You wrote that when you woke up the morning after the incident, saw on the news that a person had died outside McDonald’s and then realised, in shock and disbelief, that it was caused by you, one of the first things you said was, ‘What am I going to say to his family?’. You wrote that in May 2015, you decided to plead guilty to manslaughter, thinking that if the Hardy family saw you take responsibility for your actions and accept the consequences, they would get the closure they deserved. You wrote of suffering ‘internal’ punishment that no amount of time will relieve.
Your sister, Ms Carly Young, also gave evidence at the plea hearing. She expressed certainty that since the death of Mr Hardy, you have suffered guilt in various forms. She said that you punished yourself ‘on the inside’ although you presented on the outside with a cool, calm exterior and showed no obvious remorse. She intimated that you had thought about killing yourself. She said that she told you that another death was not going to help and that if you wanted to do something right by Joshua Hardy, you should do something that he would be proud of in order to honour him.
In your letter to the Court, you described this conversation with your sister as a turning point for you.
However, the Crown submitted that you are not remorseful and that your lack of remorse can be seen in your conduct immediately after killing Mr Hardy, when you walked away without regard for his welfare and ignored the entreaties of those urging you to return. The Crown submitted that it can also be seen in the manner in which you sought to avoid responsibility for the death of Mr Hardy in your answers to police questioning and in your conduct since then in taking the matter to trial on a fully contested basis.
It is true that you showed no concern for Mr Hardy when you left him motionless on the pavement and that you gave answers to the police that painted a picture of a minor assault in circumstances of self-defence – a picture that was far from accurate. The fact that you handed yourself in to the police does not evidence remorse, because you had little choice, having been identified by Matthew Bell. However, you did offer in open court (albeit not in front of the jury and not until 2016) to plead guilty to manslaughter, which, while not something that would, in and of itself, attract a sentencing discount, does evidence a degree of remorse, in my view.
I accept that you are now very sorry for what you did. Some of that regret is no doubt attributable to your own sorry circumstances, your quality of life and prospects having been all but destroyed by your actions on the night in question. Some of that regret will also be a response to the obvious suffering of Mr Hardy’s family. The cloud of pain in the courtroom throughout the trial was palpable.
I find that you are genuinely remorseful but that your remorse took some time to develop. You showed no care or concern for Mr Hardy on the night. Your police interview later that day gives the impression of a rather cynical exercise in dissimulation and the avoidance of responsibility.
However, I do not consider that you are a person devoid of moral sensibility and, for the reasons that follow, I have concluded that your prospects of rehabilitation are good.
You have worked all your adult life and made an effort to look after members of your family, including extended family overseas. You have also looked out for your friends, including Matthew Bell.
Ms Young, who gave character evidence for you, told the Court that you are unselfish and often put yourself out to help other people. When she and her husband returned to Australia in 2011 in dire financial straits, you found them a house and lent them your car, while you rode your motorbike to work in the depths of winter. She said that you have supported your mother, who is alone and reliant upon you, in every possible way. You befriended and offered support to the young woman who later became your fiancée when she first moved to Australia to study on her own, and you have given financial help to her family in Russia.
You continue to enjoy strong support from your family. You talk to your sister on the telephone at least once a day. Your fiancée and your mother visit you every week in prison. They were present in Court throughout your trial, which must have been very difficult for them.
Character references have been provided by other family members as well as by friends and work colleagues. Family members describe you as hardworking and responsible; friends describe you as kind and giving. Among other things, you are described as ‘an upstanding person with great compassion for family and friends’ and as ‘selfless’. You are variously said to be fine and decent; polite and caring; gentle; never aggressive or harsh with anyone; nurturing and protective towards those close to you; warm and sensitive; empathetic towards others; considerate and kind; protective and loyal.
These descriptions do not sit comfortably with what you did to Mr Hardy.
Nonetheless, it is clear to me that were it not for the killing of Mr Hardy, you might have led a decent and productive life. In senselessly taking another life, you have cruelled your own future.
In your letter to the Court, you said that your career was driven by your desire to look after your family financially. You also said that you wanted to find a position in society in which you could make a difference to other people. You said that while your goals in life have been set back, they have not been forgotten, and you are more motivated than ever to work hard and find your position in society.
Some of the content of your letter to the Court is trite, self-serving and no doubt directed to moderating the severity of the sentence that will be imposed. However, it also reveals a strong desire to lead a meaningful life and to make the best of your time in prison. Your commitment to rehabilitation is also evidenced by your conduct in prison to date, that is, by your good behaviour and willingness to work and undertake educational programs. This all supports my assessment of your good prospects of rehabilitation.
There is one qualification that needs to be made to this assessment. In 2009, you pleaded guilty to recklessly causing injury and criminal damage arising from an assault on a crowd controller at a pub. You were refused re-entry to the pub because it was closing and, according to the prosecution summary, you became aggressive toward security, kicking and punching the victim, who sustained minor injuries.
Your barrister submitted that this was not relevant offending. I disagree. However, until your most recent – much more serious – offending it was an isolated incident. I do not consider that it harms your prospects of rehabilitation. Although it is relevant to the question of specific deterrence, I do not believe specific deterrence to be a major sentencing consideration in your case. I think it unlikely that you will re-offend, given the tragic consequences of your offending for others and its dire ramifications for you.
Your counsel submitted that a further mitigating factor was your mental health and its consequences for your experience of prison. Dr Owens’ report is relevant to this matter.
Since your incarceration, you have been diagnosed with an adjustment disorder with depressed mood and a major depressive disorder of moderate severity. You also suffer from anxiety, which has been a feature since a threat to your life some years ago. It was submitted on your behalf that these conditions will mean the prison sentence that must be imposed on you will weigh more heavily on you than it would on a person of normal health. It was also submitted that there is a serious risk of imprisonment having an adverse effect on your mental health.
Having carefully considered the report of Dr Owens, I do not accept that your mental health weighs in favour of a shorter prison sentence. Your depression is a product of the stress of incarceration and the impact of your offending. It is not unusual for a person facing a very long prison sentence to suffer from depression. According to Dr Owens, it is likely that you will experience some resolution of your depressive and anxiety symptoms with anti-depressant treatment. Based on Dr Owens’ report, you appear to have access suitable treatment in prison.
Furthermore, neither the depression nor the anxiety from which you suffer lessens your moral culpability for your offending and you remain an appropriate vehicle for general and specific deterrence.
The maximum penalty for murder is life imprisonment. Your crime necessarily attracts a significant period of imprisonment. The sentence that I impose must reflect the gravity of your offending and your moral culpability.
The Court has a duty to uphold the sanctity of human life. There must never be any doubt about the commitment of the community, and the Court through which it speaks, to defend the importance of human life with the imposition of substantial penalties.[1]
[1]R v Gemmill [2004] VSC 30 at [57].
Furthermore, crimes of this kind, involving random acts of violence dished out to hapless passers-by on the streets of Melbourne must be strongly denounced and must attract a significant penalty to deter others from engaging in like behaviour.
The main sentencing considerations in this case are therefore just punishment, denunciation of your conduct and general deterrence. There is also a need to provide specific deterrence, although this is somewhat moderated in your case for the reasons I have given.
Mr Zandipour, please stand.
You stand convicted of the murder of Joshua Hardy. Doing the best that I can to balance all the sentencing considerations that I have canvassed, and having regard to current sentencing practices, I sentence you to 20 years’ imprisonment with a non-parole period of 16 years.
I declare that you have already served 633 days in custody, up to but not including today.
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