Citation: R v Hejabian [2016] NSWSC 1692
Court: Supreme Court of New South Wales
Date: 1 December 2016
Judge(s): Hidden AJ
Background
The offender, a 40-year-old Iranian-born man of the Bahai faith, had been found guilty at trial of murdering his partner at Doonside between 18 and 21 April 2014. When police entered the Doonside home on the evening of 21 April 2014, they found the deceased in the hallway and the offender barely conscious in a bedroom, having attempted to take his own life.
The offender had a deeply troubled personal history. From childhood in Iran he had suffered persecution on religious grounds. After arriving in Australia as a refugee in 2001, he experienced the breakdown of his first marriage, difficulties accessing social services, and the prolonged burden of caring for a second wife with schizophrenia. From 2011 he had received treatment for post-traumatic stress disorder and depression, conditions traced to his persecution in Iran and exacerbated by his domestic circumstances.
The deceased was a woman with whom the offender had been in a relationship since around 2010, though they did not live together. The offender had become intensely emotionally dependent on the deceased and had sought marriage; she was not prepared to commit to that course. In the weeks before the murder, family members described his behaviour as obsessive. The only issue at trial was whether the defence of substantial impairment by abnormality of mind was available to the offender. The jury rejected that defence.
Legal Issues
- Whether, on the sentencing hearing, the offender's mental condition should be taken into account as a mitigating factor
- Whether the offender intended to kill the deceased, rather than merely to cause grievous bodily harm
- Whether the killing was planned or premeditated
- Whether special circumstances existed warranting a departure from the statutory proportion between the head sentence and the non-parole period
- What the appropriate sentence was, having regard to all objective and subjective factors
Decision
Hidden AJ was satisfied beyond reasonable doubt that the offender intended to kill the deceased. Expert forensic pathology evidence established that the deceased died from a combination of blunt head trauma and asphyxiation. The court accepted that the asphyxiation resulted from a deliberate act by the offender, not merely from an unconscious positional obstruction, and concluded that an intention to kill was inescapable on the evidence.
The killing was not, however, planned. The court accepted that the offender and the deceased had a heated argument focused on the failing relationship, and that the killing arose from that confrontation. Writing on the bedroom wall in Persian, functioning as a suicide note, provided a consistent thread in the circumstances of the event. While the offender had told the deceased months earlier that he would kill her and himself if she left him, the Crown did not rely on this as evidence of premeditation, and the court treated it as evidence of emotional intensity rather than planning.
On subjective factors, the court gave weight to the offender's significant mental health conditions, his history of persecution and trauma, and the fact that those conditions, while not sufficient to establish substantial impairment at trial, remained relevant to moral culpability on sentence. The court also noted that his physical disability resulting from the suicide attempt and his ongoing mental illness would make custody harder to bear. His prospects of rehabilitation were assessed as favourable, provided treatment continued in custody and upon release.
The court declined to find special circumstances. The sentence imposed was lengthy, and the standard statutory non-parole proportion was considered sufficient to support rehabilitation through supervision during the parole period.
Orders Made
- The offender was sentenced to imprisonment for 21 years for the murder of the deceased
- Non-parole period of 15 years and 9 months, commencing 21 April 2014 and expiring 20 January 2030
- Balance of term of 5 years and 3 months, commencing 21 January 2030 and expiring 20 April 2035
- Eligible for release on parole on 21 January 2030
- Sentence backdated to 21 April 2014, the date the offender was conveyed to hospital and effectively taken into custody
Key Takeaways
- A defence of substantial impairment by abnormality of mind that fails at trial may nonetheless remain relevant at the sentencing stage, with the offender's mental health history capable of reducing moral culpability even where it does not reduce the offence to manslaughter.
- Where expert pathology evidence admits of no other conclusion, a sentencing court will be satisfied of an intention to kill notwithstanding the absence of a clear account from the offender of what occurred.
- The absence of prior violence in a domestic relationship, combined with a diagnosable and treatable mental illness, may support a finding of favourable rehabilitation prospects even in a murder case.
- Sufficient evidence of a spontaneous, argument-driven killing can distinguish a finding of "unplanned" from "premeditated," a distinction that informs the assessment of objective gravity even within the category of intentional murder.
- The statutory proportion between head sentence and non-parole period will not automatically be departed from merely because an offender has significant mental health or rehabilitation needs; the standard parole period may itself be found adequate to serve those purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including the substantial impairment by abnormality of mind defence provisions
Cases:
No cases were cited in the portions of the judgment provided.