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Supreme Court 7 December 2012

R v Hazairin Iskandar

[2012] NSWSC 1324

Homicide
CRIMINAL LAW MURDER SENTENCE GUILTY VERDICT BY JURY PROVOCATION DEFENCE REJECTED BY JURY PRE

Citation: R v Hazairin Iskandar [2012] NSWSC 1324
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge(s): Davies J

Background

The offender, a married taxi driver originally from Indonesia, was convicted by jury of the murder of his wife's colleague and lover. The deceased had been working at the Malaysian Consulate in Sydney since 2006 and had entered into a relationship with the offender's wife. Over the months preceding the killing, the offender became aware of the affair through community rumours and his own observations, and confronted both his wife and the deceased on multiple occasions. Both denied any improper relationship.

In the week before the killing, the offender hired a rental car and, together with his adult son Andrew, surveilled the deceased and the offender's wife. On the night of 21 February 2010, the offender and Andrew drove to the deceased's home address in Leichhardt, armed with a knife, hammer, spanner, and possibly a crowbar, and with materials to obscure the vehicle's number plates. When the deceased returned home from his night job, a confrontation ensued. The deceased made insulting remarks to the offender, a fight broke out, and the offender and Andrew attacked the deceased with the weapons they had brought. The deceased fled but was chased down and fatally stabbed.

The offender's son Andrew had already been sentenced separately for his role in the murder. This decision concerned the sentence for the offender himself, who was convicted after a jury trial and had lodged a guilty plea at some point in proceedings.

  • What was the appropriate sentence for murder, having regard to the standard non-parole period of 20 years?
  • Whether the offender's conduct was premeditated or arose from provocation (the jury had already rejected provocation as a defence).
  • How to weigh the offender's age, remorse, and guilty plea as mitigating factors against the objective seriousness of the offence.
  • How to achieve parity with the sentence already imposed on Andrew Iskandar, while reflecting the meaningful differences between the two offenders.

Decision

Davies J found the offence was objectively serious and involved significant pre-planning. The hiring of the rental car, the surveillance of the deceased and the offender's wife, the assembly of weapons, and the use of materials to obscure number plates all demonstrated deliberate preparation. The jury's rejection of the provocation defence was consistent with this finding, though the judge accepted that the offender had suffered genuine anguish over the affair and experienced some loss of self-control at the scene when the deceased made provocative remarks.

The judge accepted that the offender had expressed genuine remorse, distinguishing him from Andrew Iskandar who had shown none. The offender's guilty plea also attracted a discount. However, these mitigating factors were weighed against the brutality of the killing: the deceased had suffered considerably and was subjected to a terrifying attack by two people armed with weapons.

On parity, Davies J noted that Andrew had been sentenced to a non-parole period of 18 years with an additional term of 7 years. The judge found the offender was the "moving influence" behind the enterprise, but that the two were equally culpable in the execution of the attack. The offender's genuine remorse, guilty plea, and more advanced age justified a modest reduction from Andrew's non-parole period. General deterrence was identified as a particularly relevant sentencing purpose in the circumstances.

Orders Made

  • The offender was sentenced to imprisonment with a minimum (non-parole) term of 17 years, commencing 23 February 2010 and expiring 22 February 2027.
  • An additional term of 6 years was imposed, expiring 22 February 2033.

Key Takeaways

  • Pre-planning indicators, including vehicle hire, surveillance, weapon assembly, and attempts to conceal the vehicle's identity, can significantly affect the objective seriousness of a murder, even where some loss of control occurs at the scene.
  • The Supreme Court confirmed that a jury's rejection of provocation at trial feeds directly into the sentencing court's assessment of the offender's culpability and the weight available to mitigating circumstances.
  • Genuine remorse, verified by the sentencing judge, can distinguish co-offenders and justify differential non-parole periods, even where both parties employed equal brutality in execution.
  • Parity principles require a sentencing court to identify meaningful differences between co-offenders, such as remorse and the entry of a guilty plea, rather than imposing identical sentences regardless of individual circumstances.
  • General deterrence remains an important sentencing consideration in domestic or "victim-specific" murders where the killing arises from personal grievance, notwithstanding that the offender presents a lower risk to the general public.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (murder provisions, standard non-parole period of 20 years implied)

Cases:
- Muldrock v The Queen [2011] HCA 39
- Beveridge v R [2011] NSWCCA 249
- Madden v R [2011] NSWCCA 254
- Windle v R [2011] NSWCCA 277
- R v Koloamatangi [2011] NSWCCA 288
- Dwayne William Smith v R [2011] NSWCCA 209
- De Rosiers v R [2006] NSWCCA 16
- Goebel-McGregor v R [2006] NSWCCA 390
- R v Dawes [2004] NSWCCA 363
- R v Doff [2005] NSWCCA 119
- R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284
- Holyoak v R (1995) 82 A Crim R 502
- Regina v White (NSWCCA, 23 June 1998, unreported)