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Supreme Court 2 November 2018

R v Darbanou

[2018] NSWSC 1672

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER DOMESTIC HOMICIDE EARLY PLEA OF GUILTY SERIOUS OFFENCE

Citation: R v Darbanou [2018] NSWSC 1672
Court: Supreme Court of New South Wales
Date: 2 November 2018
Judge: Lonergan J

Background

The offender, an Iranian national living in Sydney, killed his wife on the evening of 28 September 2016 by stabbing her at least 60 times with a large kitchen knife at their Potts Point home. The victim was 33 years old. The agreed facts revealed a history of domestic control and violence, including a prior attempt by the offender to suffocate his wife approximately three weeks before her death, and threats that he would kill her rather than grant a divorce.

After the killing, the offender disposed of the knife, drove away, and later attended a police station where he gave a false account of his movements. He was arrested the same morning and, in a subsequent recorded interview, made admissions while also alleging that the victim had been unfaithful. His counsel acknowledged there was no evidence to support those allegations.

The offender pleaded guilty to murder on 21 September 2017 and maintained that plea at arraignment on 1 December 2017. Lonergan J treated this as a plea at the first opportunity.

  • Whether the offence warranted a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Where on the continuum of objective seriousness this particular murder fell, having regard to intent, method, and domestic context
  • The appropriate weight to be given to general deterrence in the context of domestic homicide
  • The relevance of the offender's psychiatric diagnoses and personal circumstances as mitigating factors
  • The applicable discount for an early guilty plea under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Lonergan J declined to impose a life sentence. Although the murder was of extreme brutality, her Honour concluded it did not meet the statutory threshold under s 61(1), which requires that the level of culpability be so extreme that community interests in retribution, punishment, protection, and deterrence can only be satisfied by a life term. The Crown did not submit that a life sentence was warranted.

Her Honour assessed the offence as serious, noting the clear intention to kill, the large number of stab wounds, the 17 defensive injuries on the victim's hands, and the extensive fractures sustained. The domestic context was treated as a significant aggravating factor requiring strong general deterrence. Her Honour cited with approval observations from R v Archer [2015] NSWSC 1487 and the High Court in Munda v Western Australia [2013] HCA 38 about the courts' obligation to denounce domestic violence and vindicate the human dignity of victims.

The offender's psychiatric conditions, including an adjustment disorder with depressed mood, alcohol dependence, and a possible delusional disorder of the jealous type (as diagnosed by Dr Furst), were taken into account, as were the difficulties of incarceration far from family and in an English-language environment. However, her Honour noted that rehabilitation prospects were limited unless the offender received assistance with English to engage with available programs.

A 25% discount was applied to the sentence in recognition of the early guilty plea, in accordance with s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW). No special circumstances were found to justify a variation to the standard ratio of non-parole period to total sentence.

Orders Made

  • Total term of imprisonment: 21 years, commencing 29 September 2016 and expiring 28 September 2037
  • Non-parole period: 15 years and 9 months, expiring 28 June 2032
  • The offender was informed of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), under which the State may apply to the Supreme Court for continued detention or supervision at the end of the sentence if the offender is found to pose an unacceptable risk of committing a serious offence

Key Takeaways

  • A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that the offender's culpability be so extreme that no other sentence can satisfy the community interests of retribution, punishment, protection, and deterrence. Extreme brutality alone does not automatically meet that threshold.
  • Domestic homicide attracts heightened consideration of general deterrence, and sentencing courts are required to signal the community's intolerance of domestic violence and vindicate the human dignity of victims.
  • Where an offender alleges provocative conduct by the victim but no evidence supports those allegations, the assertion carries no mitigating weight in sentencing.
  • Psychiatric conditions and the hardships of incarceration in a foreign-language environment can be taken into account as mitigating factors, though their practical weight may be limited by concerns about rehabilitation prospects.
  • Under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), a guilty plea entered at the first opportunity attracted a 25% reduction in this case, reflecting the established approach to recognising early pleas in serious criminal matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21, 21A, 25D, 28, 61
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Apps v R [2006] NSWCCA 290
- Versluys v R [2014] NSWCCA 98
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Milat v R; Klein v R [2014] NSWCCA 29
- R v Engert (1995) 84 A Crim R 67
- Munda v Western Australia [2013] HCA 38 (cited in discussion of domestic violence sentencing principles)
- R v Archer [2015] NSWSC 1487 (cited in discussion of general deterrence in domestic homicide)