DPP v Azizi

Supreme Court of Victoria|2013-02-08|Before: KAYE J

CRIMINAL LAW - Sentence - Murder - Accused convicted on retrial - Accused beating and strangling wife in course of heated argument.

1 Soltan Ahmad Azizi, you have been found guilty, by the jury empanelled on your trial, of the murder of your wife, Marzieh Rahimi, at Hampton Park on 20 November 2007.

3 For the purposes of sentencing you, it is necessary for me to make some factual findings, consistent with the jury's verdict, and based on the evidence at your trial, as to the circumstances in which you committed the offence. In this respect, I note that you had been previously convicted of the murder of Marzieh by another jury. That conviction was set aside by the Court of Appeal.[1] In its decision, the Court of Appeal ruled that some evidence, which was admitted on your previous trial, was inadmissible. That evidence concerned features of your relationship with Marzieh, and consisted of a number of statements by Marzieh as to your conduct towards her. In accordance with the principles stated by the Court of Appeal, at the commencement of your trial, I ruled that some other evidence was also inadmissible.[2] The factual findings, which I shall make, will not have any regard to the evidence, which has been ruled inadmissible by the Court of Appeal or myself.

4 Both Marzieh Rahimi and you were born and raised in Afghanistan. At the time of her death, Marzieh was 33 years of age. You were born on 21 March 1964, and are now 48 years of age. You married Marzieh, who is your cousin, in 1994. Your first child, a daughter, Zanab, was born in February 1995. She was tragically killed by gunfire in 1998. There are five surviving children of your marriage. The eldest, your daughter Beheshteh, was born in Afghanistan in 1996. In the following year, you and Marzieh fled Afghanistan for Iran as refugees. While you were in Iran, Marzieh and you had two sons, Shakib born in 1998, and Mohammed born in 2001. You came to Australia with Marzieh and with your children, as refugees, in 2005. Since your arrival, Marzieh and you had two further sons, Hamza born in May 2006, and Shoaib born on 27 August 2007.

5 Initially, your family and you lived in Dandenong. However, in approximately August 2007, you moved to your home at 41 Michelle Drive, Hampton Park. At that time, you were a student at a TAFE college, where you were learning to speak and read English.

6 At your trial, evidence was led from four witnesses as to various aspects of your relationship with Marzieh. Some of that evidence consisted of conversations, which Marzieh had with those witnesses. That evidence was not relied on by the prosecution, or admitted, as truth of the allegations which were made by Marzieh to those witnesses in the course of those conversations. Rather, the evidence was admitted for three specific purposes. First, it was admitted to establish that, in the months leading to the date of the offence, the relationship between Marzieh and yourself was fractured, and that there was some hostility and tension within it. Secondly, the evidence was admitted to establish that, at that time, Marzieh was intending, or seriously contemplating, leaving you and obtaining a divorce from you. Thirdly, the evidence was admitted to establish that, during that time, and in particular in the weeks and days leading to the offence, Marzieh was scared of you. I am satisfied, on the evidence adduced at your trial, that that evidence establishes each of those three matters.

7 In particular, shortly after the birth of your youngest child Shoaib in late August 2007, Ms Catherine Cross, a maternal and child health nurse with the City of Casey, paid a routine visit to Marzieh. Ms Cross was concerned about Marzieh's health, and in particular concerning her emotional well being. Accordingly, she referred Marzieh to Ms Catherine MacKinnon, who was the coordinator of the Enhanced Maternal and Child Health Services at the City of Casey. In the following two months, Ms MacKinnon, accompanied by an interpreter, paid a number of visits to Marzieh. During the same period of time, Marzieh spoke on a number of occasions to her sister Shookria Abid, who was then residing in the United States of America.

8 It is not necessary, for the purposes of sentencing you, to set out in any detail the evidence of those four witnesses. A brief summary of some of the contact, which those witnesses had with Marzieh, is, however, relevant.

9 Approximately one month before she died, Marzieh spoke on the telephone to her sister Shookria. She told Shookria that you had been hitting her. As I have stated, that evidence is inadmissible as proof that you had in fact had assaulted your wife. However, it is relevant as to the nature of the relationship which you had with Marzieh, and as to her feelings concerning you. Marzieh told Shookria that social workers had been coming to her house. She said that she would talk to you, and that if you did not change, she wanted to apply for a divorce.

10 In the early hours of 1 November, Marzieh made two telephone calls to the emergency triple 0 number. On the first occasion, she hung up before she was connected to the police. On the second occasion, at 1.45 am, she spoke to the police in broken English. Regrettably, because of the language barrier, the telephone operator was of no assistance to her, and Marzieh hung up. On the same day, at 12.30 pm, Marzieh telephoned Ms MacKinnon. She sounded distressed and agitated, and she wished to communicate with Ms MacKinnon as a matter of urgency. As a result of that telephone call, Ms MacKinnon put Marzieh in contact with a social worker.

11 Ms MacKinnon next visited Marzieh on 7 November. Marzieh told her that she had spoken to the social worker, and she was more clear about her rights and her options if she decided to leave you. She described an argument which she had had with you, and which had culminated in Marzieh locking herself in the bedroom with her two youngest children for some days.

12 Approximately one week before Marzieh's death, you telephoned Shookria yourself. You told Shookria that Marzieh had changed her religion and had become an Australian, and that she wanted to divorce you. In the course of that conversation, Shookria spoke to Marzieh, and encouraged her to give you another chance. Marzieh responded that she had given you many chances, and it would not work. She said that she had a case worker, who was going to help her with the divorce proceedings. She told Shookria that she had a lot of support, and that there were various organisations, which would assist her, if she wished to leave you and live by herself.

13 Ms MacKinnon last visited Marzieh six days before she died, on 14 November. On that occasion, both Ms MacKinnon, and the interpreter, Monis Khaliqy, observed that Marzieh was in a much better frame of mind. She seemed happy and confident, and she told Ms MacKinnon and Ms Khaliqy that she had warned you that if you did not change your ways, she would leave you. She said that since then you had been more supportive with the children, and that your behaviour had improved.

14 Three days before her death, Marzieh spoke, for the last time, on the telephone to Shookria. It would appear that, by then, matters had again deteriorated between you and Marzieh. She told Shookria that you were hitting her, and she sounded worried and scared. She said that she was afraid that something bad was going to happen to her by you.

15 The evidence of Ms MacKinnon, the interpreter Monis Khaliqy, and Shookria Abid, satisfies me that during the period leading up to her death, the relationship between Marzieh and yourself was a troubled and difficult relationship, which was punctuated by tension and a degree of acrimony. It is clear that the relationship had reached such a state that Marzieh was giving serious consideration to seeking a divorce from you, and she had obtained some advice in that respect from a social worker. I am satisfied that in the days preceding Marzieh's death, you well knew that Marzieh was seriously considering leaving you. Further, I am satisfied that during that time, and in particular in the last week or so before her death, Marzieh was genuinely frightened of you. There was no admissible evidence as to why she was scared of you. It would be impermissible for me to speculate in that regard. However, the fact that she was intimidated by you is relevant to the factual findings, which I shall make in relation to the circumstances in which she was killed by you. In particular, it made it improbable that Marzieh would have instigated a physical confrontation with you, as you claimed, in your evidence, that she had done.

16 There was also evidence from two neighbours that, during the period leading up to 20 November, they had heard the sounds of verbal arguments, between a man and a woman, coming from your home. On the evening of 19 November, another neighbour, Anthony Lowe, heard the sounds of another argument between a man and a woman at your home, over a short period of time. He described yelling and screaming coming from your home, and he said that the noise was predominantly made by the man.

17 The incident, in which you murdered your wife Marzieh, took place some time after 1.00 pm on 20 November. There were no witnesses to the incident. At approximately 1.00 pm on that day, your next door neighbour, Mr Jern, heard a baby crying in your house. He immediately heard an argument between a man and a woman. He said that the woman was trying to scream. The baby cried for about ten minutes, and the argument went on during that time. The woman's voice was most predominant, and the male voice (obviously yours) sounded muffled. After approximately ten or fifteen minutes, everything suddenly went silent. Approximately thirty minutes later, Mr Jern saw some police vehicles arrive.

18 At 2.23 pm, you telephoned the police. You said that you had killed your wife, and you asked the police to attend. The police arrived at your premises at 2.30 pm. You immediately told them that you had killed your wife, and you told them that you were ready for the handcuffs. In doing so, you put your two hands out in front of you.

19 The police found your wife lying on her back in the living room. She was clearly deceased. Her scarf was behind her head. There was a large, prominent mark on the front of her neck. The pathologist, at the post-mortem, found that Marzieh had died by strangulation.

20 In the incident, which immediately preceded her death, Marzieh sustained a number of injuries, which were described by the pathologist who performed the post-mortem that evening. In particular, she had sustained a large prominent bruise to her left temporal area. The bruising extended from the forehead to the left cheek in front of the ear. The pathologist stated that the area of bruising was consistent with at least one application of blunt force to that area. He expressed the view that it could also have been caused by two or more impacts to the same area.

21 In addition, Marzieh had sustained a laceration, also caused by blunt trauma, to the right corner of her mouth, and a separate area of bruising to the left chin. Pausing there, the injuries, which I have just described, are consistent with at least three, if not more, blows inflicted to Marzieh's head and face.

22 In addition, there were three separate areas of bruising on the outer part of Marzieh's shoulder, two areas of bruising on her left forearm between the elbow and the wrist, and an area of bruising over the back of her left hand. Each of those injuries, to the shoulder, arm and hand, were consistent with, and indeed are commonly associated with, defensive type injuries.

23 As I stated, you murdered Marzieh by strangling her with her scarf. In doing so, you caused bruising to each of the four layers of muscle which lie between the skin and the thyroid cartilage. The force of the strangulation was such as to fracture each of the horns (or cornua) of the thyroid cartilage, and to fracture the hyoid bone, which is immediately above that cartilage. The pathologist observed petechial (or small dot) haemorrhaging on the inner eyelids, and beneath the eyebrows. That haemorrhaging is commonly associated with strangulation.

24 The pathologist was not able to be definite as to how long strangulation would have taken place in order to produce the signs observed by him, and, in particular, the petechial haemorrhages. He stated that it is accepted in medical literature that it generally takes at least between fifteen and thirty seconds to produce those haemorrhages, although there is other literature, which says that there is no scientific basis for that proposition. The pathologist's final position, in his evidence, was that the strangulation would have lasted for more than a moment, and that it was likely that the force to Marzieh's neck had been applied by you with the scarf for a longer, rather than a shorter, period of time. He also stated that the force applied by you must have been at least moderate, although he could not detect any signs, which would have enabled him to say that you applied severe force.

25 As I have stated, there were no witnesses to the incident in which you killed your wife. At your trial, you gave evidence. It is clear, by its verdict, that the jury was satisfied, beyond reasonable doubt, that your evidence was not truthful.

26 In your evidence, you stated that you had had a harmonious marriage with your wife until the birth of your last child, Shoaib, in August 2007. Thereafter, you claimed, Marzieh had changed and become totally different. She then became temperamental and volatile. You claimed that, on occasions, she was physically rough in her treatment of the children, and that she would have sudden outbursts of temper. You said that she and you discussed divorce. However, you claimed that you were not concerned by that discussion, as you considered it was your wife's right to divorce you if she wished. You agreed that you had telephoned Shookria one week before your wife's death. However, you denied that you did so to enlist Shookria's support in dissuading your wife from divorcing you. Rather, you claimed, you telephoned her for cultural reasons, in order to keep the family up to date with the situation of your marriage. You denied arguing with your wife in the period leading up to her death. Rather, you portrayed yourself as the model voice of reason, notwithstanding what you described as a number of temper outbursts on her behalf.

27 Pausing there, thus described, your evidence in the period leading up to Marzieh's death was, self-evidently, overstated, self-serving, and quite unbelievable. Allowing for the fact that you gave your evidence through an interpreter, and that obviously there are significant linguistic differences between your native tongue, Dari, and the English language, I nevertheless found that the manner in which you gave your evidence was quite contrived and totally unconvincing.

28 In respect to the day of your wife's death, you stated that in the morning of 20 November, your three eldest children went to school. Marzieh and you then took the two younger children to the dentist, and to the doctor for the second youngest, Hamza, to have a vaccination. You did some shopping at Safeway, and then returned home. When you came home, you took Hamza into the house and your wife took the baby Shoaib into the house. You returned to the car to fetch the baby's bag and some of the shopping. When you got back inside, Hamza wanted something from Marzieh. Thereupon, you claimed, she pushed him roughly towards the ground, and was behaving in what you described as a "very bad manner" with him. Hamza was crying loudly. You said to your wife, "Why are you doing this?" and she replied, "It's my right, I have a right to do this kind of behaviour".

29 In your evidence, you said that you then went to lift Hamza from the floor, and, while you were doing so, Marzieh pushed you backwards onto your back. You claimed that she then jumped onto you. You noticed she was opening her mouth towards you. In response, you punched her at least three times to the face. You say you did so, because you thought that she was about to bite you. However, your blows to her face did not deter her at all. She then bit you on the inside of your left thigh. As she was doing so, you noticed her scarf around her neck. So you pulled on both ends of the scarf. You said, "then this incident happened". By that, you meant that you pulled so hard on the scarf, and for so long, as to strangle her to death. You then telephoned the police.

30 Thus stated, I found that your evidence, as to how you killed your wife, was just as incredible, unreal and contrived, as your evidence concerning your relationship with your wife in the period leading up to her death. In cross-examination, you agreed that you had punched Marzieh at least three times before she bit you. Yet, according to you, she still attacked you. You could not explain why, when she bit you, you did not push her off with your hands, kick her, or even punch her again, in order to stop her biting you. You could not explain how, in the incident, you suffered two abrasions to your back, given that you claimed that you were lying on your back at the time. You denied that the argument between you and Marzieh, before that incident, had become heated, notwithstanding the evidence of Mr Jern, and notwithstanding that, six months later, in a discussion with Shookria, you told her that you had had an argument with Marzieh which had become heated.

31 As I stated, by its verdict, the jury clearly was satisfied, beyond reasonable doubt, that you were not truthful in your evidence. There was, I consider, a particularly sound basis for the jury to have reached that conclusion. For the purposes of sentencing you, I also am satisfied, beyond reasonable doubt, that you did not tell the truth, on your oath, when you described the circumstances, in which you murdered your wife. I am satisfied, beyond reasonable doubt, that the incident did not occur in the manner described by you.

32 In the absence of any witness to the circumstances of your wife's death, it is not possible to express any conclusions as to how precisely it occurred. While various theories might be advanced, they would not rise above speculation, which is impermissible. However, what is clear is that, before you fatally strangled Marzieh with her scarf, you inflicted at least three blows to her head or face area, three blows to her upper arm, two blows to her forearm, and one blow to her hand. By contrast, the injuries, which you sustained, were minimal. You did sustain a small bite mark to the inside of your left thigh. However, there was no bleeding from that bite mark, and only minimal breaking of the skin. The evidence of the neighbour, Mr Jern, and the nature and extent of Marzieh's injuries, satisfy me, beyond reasonable doubt, that there was a heated argument between Marzieh and yourself before the incident, in which she was killed by you. One part of your evidence, which I do accept, is that, in that argument, Marzieh attempted to assert her rights. I am satisfied, beyond reasonable doubt, that she did not assault, or otherwise roughly treat, her child. Your claim that she did so is, to put it bluntly, a blatant lie. The fact is that your wife's death did not result from any manner in which she had treated her second youngest child, who she dearly loved. Rather, it resulted from an argument between yourself and your wife, in which she asserted her rights. You were then extremely violent towards her. The injuries, which you inflicted on her, before strangling her to death, bespeak eloquently of the fact that you were in a very high state of anger. It is clear that, in that state, you lost control of your emotions, and that, at or about the time that she bit you in a desperate attempt to protect herself from your brutal fury, you strangled her until she was dead. In short, you deliberately strangled her, with the intention of killing her, or at least causing her really serious injury, while you were in a fit of uncontrollable rage.

33 The crime of murder, for which you have been convicted, is, quite properly, the most serious criminal offence known to our legal system. It involved the intentional taking by you of the life of another human being, in this case, your wife.

34 There were, in addition, a number of aggravating features of your offending, which makes this a particularly serious instance of the crime of murder. First, Marzieh was your wife. She was, in a real sense, in your care and entitled to your protection. You well knew that in recent times Marzieh had been struggling emotionally. Catherine MacKinnon considered that she was suffering from symptoms of post traumatic stress disorder, which had resulted from the difficult and traumatic life from which she and you had fled both in Afghanistan and then in Iran. Marzieh had been subject to panic attacks, of quite a severe nature. She was making a valiant, and constructive, attempt to overcome her problem. At the same time she was alone, in a foreign land, with limited English. She was doing her very best to be a good mother to her five young children, and a good wife to you. She had every right to expect that you would respect her, care for her, and protect her. By tragic contrast, you brutally, and without any just cause whatsoever, brought her life to a traumatic end. You did so, in front of your two infant children, in the home in which Marzieh had every right to feel safe and secure.

35 In this regard, I fully endorse (as has the Court of Appeal[3] in a different case) the remarks by the learned judge, King J, who sentenced you on the last occasion. In that sentence, her Honour stated:

"Every man and woman in this country is entitled to the protection of the law. Marriage does not sanction or give permission to any husband to treat his wife in a manner that is inconsistent with her rights as a fellow human being. No man has the right to order or direct a woman to behave in a certain way, merely because he is her husband. And of course the same applies in reverse. Both women, and men, have a right to be protected within a marriage. Matters such as this used to be referred to many years ago as a domestic murder. It makes it no less significant or painful in terms of consequences, than any other type of murder. The punishment for a so-called domestic murder is not one that is reduced because of that fact. In the pantheon of murders, a domestic murder does not occupy a lowly position because of its nature. The protection of persons within a marriage is, and should be, a high and proper priority of the criminal justice system."[4]

36 Over and above that, the nature and degree of the violence, which you inflicted on your wife, is a particularly serious factor involved in your offending. As I have already outlined, you struck a number of blows to her face and arms before fatally strangling her. No husband has the right to strike or treat his wife in that way at all. The act of strangling your wife to death was a particularly brutal, cruel and callous way of killing her. It is unfathomable how, notwithstanding your state of rage, you could have brought yourself to throttle to death your life partner, and the mother of your five young children. What you did to your wife was a singularly evil act. In her last moments, Marzieh must have been truly terrified, being battered and then strangled to death by the one person to whom she ought to have been able to look for support and protection.

37 The principal victim of your offence was, of course, your wife Marzieh Rahimi. At the time of her death she was 33 years of age. She had every right to look forward to a life full of happiness and joy with her children, watching them grow, and being a central part of their lives.

38 I have read the victim impact statements of her mother, Nour Bibi, and her sister, Shookria Abid. Although they lived in places far distant from here, Marzieh was very much a cherished member of their family. Their lives continue to be deeply affected by her loss, and by the profound grief and anguish caused to them by your criminal actions. They are, in a very real respect, victims of your crime.

39 Further, by murdering your wife, you have deprived your young children of the love and devotion which they would have received from their mother. Since her death, and your arrest, they have been placed in foster care. While I have no doubt that those who have responsibility for their care are doing their utmost for them, it is no substitute at all for the love and security which can be provided to a young child and adolescent by a parent. Each of your five children are, to a very significant degree, victims of your terrible crime.

40 In mitigation, I take into account the fact that the killing by you of your wife was not premeditated. Ms M Williams SC, the learned Crown prosecutor, made it clear to the jury that the prosecution case was that you had not pre-planned, or even contemplated, killing your wife. Rather, as I have already stated, it is clear from the evidence in the case that the murder by you of your wife resulted from an uncontrollable outburst of anger and violence on your behalf. I also take into account, in your favour, the fact that, shortly after you had murdered Marzieh, you telephoned the police, and told them that you had been responsible for killing her. You have maintained that position since.

41 The evidence establishes that, one month after Marzieh's death, you telephoned Shookria Abid, and asked for the forgiveness of her and her family. You made a similar telephone call to Shookria in May 2008. The evidence makes it clear that the purpose of your call was to try to persuade Shookria Abid that your killing of your wife was accidental and unintentional. Both telephone calls were made by you after you had been arrested and charged with the crime of murder. At no time have you faced up to the fact that you not only killed your wife, but that you did so intentionally and unlawfully. You have not demonstrated any remorse for the fact that you murdered your wife. Thus, I am not satisfied that you are remorseful for the murder by you of your wife.

42 I turn then to matters relating to your background and history. On your plea, your counsel, Mr McMahon (who appeared with Ms O'Brien) adopted the statement of facts concerning your background, which are contained in the reasons for sentence of the learned judge who sentenced you on the last occasion. It is only necessary for me to summarise the relevant factors in brief detail.

43 You were born in North Eastern Afghanistan. Having completed your secondary education in 1981, you attended Kabul University for a period of four years studying economics. However, you did not complete your degree and you began working with the Afghan police.

44 The period of your youth coincided with the Soviet occupation of Afghanistan. Following the withdrawal of the Soviet forces in July 1987, a civil war broke out between the then government and the Mujahedeen. Ultimately, the government fell in 1992. Until then, you had worked for the Afghan police. After the fall of the government, you and your family were subjected to violence on more than one occasion, in circumstances which must have been traumatic for you. In 1997, your mother and sister were killed when a bomb exploded and blew up their house. In 1998, the house, in which you were residing with your wife Marzieh, was attacked by gunmen, in the course of which your three year old daughter Zanab was killed by gunfire. At about the same time, one of your brothers was captured and tortured by the Taliban. As a result, you and Marzieh, together with your surviving child, Beheshteh, fled to Iran. There, you eked out a living working as a tea boy and a cobbler, and you and your family lived in the alley ways of Tehran.

45 Ultimately, as I stated, in 2005 you were granted refugee status and migrated to Australia.

46 On your plea, Mr McMahon tendered a report by Dr Lester Walton, a consultant psychiatrist, dated 11 March 2010. In that report, Dr Walton stated that it was his impression that you have been suffering from long standing mood disturbance, which is consistent with your experiences overseas, together with previous anxiety and depression which had been aggravated in the aftermath of the death of your wife. He considered that you would attract a diagnosis of a chronic mixed anxiety/depressive disorder with some post traumatic features. Dr Walton was of the view that while your condition would not have had direct relevance to your offending, it might have had some indirect relevance by compromising your capacity to exercise proper social judgment.

47 It was not put on your plea that the matters referred to by Dr Walton should mitigate the gravity of your offending. In any event, I am not satisfied that your background circumstances, and the effect which that may have had on you, played any relevant role at all in the murder by you of your wife Marzieh. Rather, as I have already stated, I am satisfied that, in the course of a heated argument between Marzieh and yourself, you became extremely angry, and lost control of your emotions. It was in that state that you brutally beat and fatally strangled your wife.

48 In respect of your background, I do take into account that, notwithstanding the turbulent background from which you have come, you have not been in any trouble overseas or in this country. During your time in custody since the offence, you have completed a number of courses, particularly those conducted by a child and family health service. In addition, you have been productively engaged in working in prison industries.

49 I accept that your time in prison has been, and will be, particularly difficult for you. Your facility with the English language is still quite limited. I was told by your counsel that there has been no other Dari speaking inmate in any of the sections of the prisons in which you have been held. You therefore have been, and will be, significantly socially and culturally isolated during your term of imprisonment.

50 More painful for you has been your separation from your five children. I accept that you do feel a strong attachment and devotion to your children. You are regularly visited by your eldest child, and you also are in constant telephone contact with her. Your contact with your other four children is more limited, to periodic telephone conversations. I accept that your separation from your children has been, and will continue to be, a matter of considerable anguish to you. Not only have you, and will you, miss out on the joy and satisfaction of being with your children as they grow older, you are also, no doubt, pained by the fact that you are not there to support and nourish your children during those years.

51 Finally, I take into account, in your favour, the substantial period of delay which has now occurred between the time of your arrest and the time of your sentence. Some of that delay was due to reasons for which you and your legal advisers were responsible, and should not be taken into account. Further, for some of that time, you had already been sentenced, and therefore you were not then in a state of uncertainty as to your disposition. Nevertheless, and taking those matters into account, I accept the proposition made on your behalf that in this case there has been a delay between charge and sentence which is longer than usual, and which should operate as a mitigating circumstance.

52 In the course of the plea made on your behalf, there was some debate as to whether, and to what extent, I should impose a sentence, which is different to that imposed on you by the judge who presided at your first trial. As a matter of law, the sentence, which I am to impose on you is to be determined by the application by me of the relevant sentencing principles to the facts established by the evidence on your retrial and on your plea. It is not to be formulated by reference to, or by adjustment of, the previous sentence imposed by King J, save that, in the absence of countervailing circumstances, I should not impose a more severe sentence than the previous sentence. Certainly, as I indicated during the course of your plea, I accept that there is no proper basis upon which I should impose a more severe sentence than that pronounced by her Honour at your first trial. Indeed, Ms Williams of senior counsel, who appeared for the prosecution, did not contend that I should do so.

53 In any event, there are two material differences between the circumstances which attended your previous sentence, and the circumstances which are relevant to the sentence which I am to impose.

54 First, as indicated at the outset of these sentencing remarks, the evidence, which was adduced on your trial before me, was significantly different to the evidence which was adduced in your first trial. In particular, I am satisfied that King J sentenced you on the basis of evidence before her which indicated that the offence of murder, for which you were convicted, occurred in the background of a relationship between you and your wife, in which you had been abusive and violent to her on a number of occasions. That evidence was excluded by the order of the Court of Appeal, and by the ruling which I made at the commencement of your trial. Thus, the sentence, which I shall impose on you, will be on the basis that although Marzieh and you had a troubled relationship, in which Marzieh was wishing to divorce you, there is no admissible evidence that you were physically or otherwise abusive or violent towards her, before the incident which caused her death.

55 The second circumstance, which differentiates the sentence, which I am to impose on you, to that determined by King J, consists of the additional delay which has occurred between the time of your arrest and sentencing, and which, as I have stated, I shall take into account as a mitigating circumstance.

56 Notwithstanding those differences, the fact remains that you are to be sentenced for committing a most serious crime, the brutal murder of your wife. It is necessary that the sentence, which I impose upon you, be such as to adequately express the condemnation by this Court, and the community, of your wrongdoing, and to uphold the sanctity of human life, which is the most precious value in our society. It is equally important that the sentence be sufficient to act as a general deterrent, and in particular to constitute a message to the community that the Court will not tolerate, or extend leniency in respect of, the type of violence which you inflicted on your wife, and which caused her death. It is also necessary that the sentence should be sufficient in order to constitute an adequate lesson to you to ensure that you understand the gravity of your crime, and in particular to make it plain to you that your violent conduct, which caused your wife's death, is totally unacceptable.

57 Taking those matters into account, and bearing in mind the mitigating circumstances to which I have referred, I sentence you as follows. I sentence you to twenty years' imprisonment. I fix a minimum non-parole period of sixteen years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 1908 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the Court.

58 In addition, I make the disposal and retention orders proposed by the prosecution, and consented to by your counsel.

[1] Azizi v R [2012] VSCA 205.

[2] DPP v Azizi (Ruling No 1) [2012] VSC 568.

[3] Felicite v R [2011] VSCA 274, [16] (Redlich JA).

[4] R v Azizi [2010] VSC 112, [24] (King J).

At a glance

Court

Decision date

Before

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Judgment (65 paragraphs)

Parties