Citation: R v Andrew Iskandar & R v Nita Iskandar (No. 4) [2012] NSWSC 149
Court: Supreme Court of New South Wales
Date: 16 March 2012
Judge: Davies J
Background
The case arose from the killing of Mohd Shah Saemin, a Malaysian Consulate employee and airport bus driver who had been in a relationship with Nita Iskandar, a consulate clerk. Nita was married to Hazairin Iskandar, who had been refused a divorce and was aware of the affair. The killing occurred in the early hours of 22 February 2010 in Leichhardt, when Hazairin and their son Andrew attacked the deceased with a knife and a hammer.
A jury convicted Andrew Iskandar of murder on 28 November 2011. The Crown established that Andrew and his father had operated in a joint criminal enterprise: they had hired a car, surveilled the consulate, travelled to the deceased's street in matching dark hooded jackets with weapons in the car, and carried out the attack together. Andrew was 19 years old at the time of the offence. Hazairin, who was also charged and convicted, was sentenced separately.
A separate jury convicted Nita Iskandar on 29 November 2011 of being an accessory after the fact to the murder. The Crown established that, knowing of Andrew's involvement, she had assisted him to flee Australia between 21 and 24 February 2010. Andrew was eventually arrested in Singapore on 21 May 2010.
Legal Issues
- What sentence was appropriate for Andrew Iskandar for murder, given his age (19 at the time), participation in a joint criminal enterprise with his father, absence of remorse, and prospects for rehabilitation?
- What weight, if any, should be given to the possibility that Andrew acted under his father's influence?
- What sentence was appropriate for Nita Iskandar for being an accessory after the fact to murder, given her knowledge of her son's involvement and the nature of her assistance?
- Whether special circumstances existed to justify a departure from the standard statutory ratio between the non-parole period and the additional term of Andrew's sentence.
Decision
Davies J found that Andrew was a willing and active participant in the murder, not merely a young person swept along by a domineering parent. The court accepted there was no joint criminal enterprise proven to have existed before the evening of the attack, but found Andrew knew the weapons were in the car before leaving home and intended to use them. The surveillance of the consulate some days earlier also demonstrated early and knowing involvement in the plan to confront the deceased.
On the question of parental influence, Davies J was not persuaded that Hazairin exercised such control over Andrew as to substantially diminish Andrew's moral culpability. There was no evidence of a coercive or threatening relationship. Andrew showed no remorse and maintained an account of events that the court rejected as plainly false.
The court found the objective seriousness of the offence was high. It was a planned, joint attack on an unarmed man at night, using weapons, motivated by family shame over an extramarital affair. Notwithstanding Andrew's youth and lack of prior criminal record, a lengthy sentence was warranted. Davies J applied a modest adjustment to the statutory ratio between the non-parole period and additional term, acknowledging Andrew's age and prospects for rehabilitation as special circumstances.
For Nita Iskandar, Davies J recognised that her offence, while serious, was at the lower end of the range for accessory after the fact to murder. She had not participated in the killing itself, had no prior criminal record, had already spent time on remand, and had suffered considerable hardship including the breakdown of her marriage and the imprisonment of her son. A fully suspended sentence was considered appropriate in all the circumstances.
Orders Made
- Andrew Iskandar: sentenced to imprisonment with a non-parole period of 18 years commencing 21 May 2010 and expiring 20 May 2028, with an additional term of 7 years expiring 20 May 2035.
- Nita Iskandar: sentenced to imprisonment for 1 year, 11 months and 15 days commencing 16 March 2012, wholly suspended, subject to a good behaviour bond for the same period containing conditions requiring good behaviour, attendance before the court if called upon, and supervision by the Probation and Parole Service including reporting to the Burwood Probation office within 7 days.
Key Takeaways
- A joint criminal enterprise to commit murder does not require proof that the enterprise was formed well in advance; Davies J found the enterprise existed by no later than the evening of the attack, even where earlier involvement was established on the evidence.
- Youth is a mitigating factor in sentencing for murder, but it does not operate as a substantial reduction in culpability where the offender was a willing participant who demonstrated no remorse and maintained a false account of events.
- Alleged parental influence on a young adult offender requires positive evidence of coercion or control before it will significantly reduce that offender's moral culpability; the mere existence of a father-son relationship is insufficient.
- Special circumstances justifying a departure from the standard non-parole to additional term ratio may be established by a combination of the offender's age, lack of criminal history, and rehabilitation prospects, even where the objective seriousness of the offence is high.
- For accessory after the fact to murder, a wholly suspended sentence remained available where the offender had no prior record, did not participate in the killing, and faced significant personal hardship, with the sentence reflecting the lower end of the accessory range.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- KT v R [2008] NSWCCA 51
- Muldrock v The Queen [2011] HCA 39
- R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284
- R v Cowen [2008] NSWSC 104
- R v Dawes [2004] NSWCCA 363
- R v Dileski [2002] NSWCCA 345
- R v Hawken (1986) 27 A Crim R 42
- R v JW [2010] NSWCCA 49
- R v Koloamatangi [2011] NSWCCA 288
- R v Mackett [2012] NSWSC 166
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Ward [2004] NSWSC 420
- Power v The Queen (1974) 131 CLR 623