[2010] HCA 45
Imbornone v R [2017] NSWCCA 144
Johnson v R [2016] NSWCCA 286
263 A Crim R 268
Kaderavek v R [2018] NSWCCA 92
Markarian v The Queen (2005) 228 CLR 357
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
Hili v RJones v R (2010) 242 CLR 520[2010] HCA 45
Imbornone v R [2017] NSWCCA 144
Johnson v R [2016] NSWCCA 286263 A Crim R 268
Kaderavek v R [2018] NSWCCA 92
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600[2013] HCA 38
Patsan v R [2018] NSWCCA 129
Power v The Queen (1974) 131 CLR 623 at 628-629(2001) 121 A Crim R 380
R v Haydar (No 3) [2017] NSWSC 159
R v Haydar (No 4) [2017] NSWSC 615
R v Huang [2000] NSWCCA 238[1999] HCA 54
R v Olbrich (1999) 199 CLR 270R v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
R v Way (2004) 60 NSWLR 168[2004] NSWCCA 131
R v Wilkinson (No. 5) [2009] NSWSC 432
R v Yuke [2010] NSWSC 754
Ryan v The Queen (2001) 206 CLR 267[2001] HCA 21
The Queen v Kilic (2016) 259 CLR 256[2016] HCA 48
Tran v R [2011] NSWCCA 116
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (19 paragraphs)
[1]
Shahab Ahmed (Offender)
Representation: Counsel:
S Hughes (Crown)
A Djemal (Offender)
[2]
Solicitors:
Solicitor for Public Prosecutions NSW (Crown)
Oxford Lawyers (Offender)
File Number(s): 2017/52488
Publication restriction: Nil
[3]
Judgment
On 8 May 2019 Mr Ahmed was convicted of having murdered his wife, Khondkar Fariha Elahi, on 18 February 2017 when he stabbed her 14 times and then delayed calling 000 until after she had stopped breathing: R v Ahmed (No 2) [2019] NSWSC 517. He now stands for sentence for that offence.
[4]
The Court's sentencing task
A variety of matters must be taken into account in arriving at Mr Ahmed's sentence by way of the instinctive synthesis which the High Court discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51].
This requires that all relevant factors must be considered, their significance discussed and a value judgment made as to the appropriate sentence for Mr Ahmed's offence. There must also be a reasonable proportionality between the sentence imposed upon him and the circumstances of the serious crime which he committed: R v Scott [2005] NSWCCA 152 at [15].
The relevant factors begin with the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which are:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
The maximum penalty imposed for the offence of murder, life imprisonment, must also be taken into account: s 19A Crimes Act 1900 (NSW) and s 21(1) Crimes (Sentencing Procedure) Act.
Because life imprisonment is, however, a sentence reserved for extreme offences of that kind, it may only be imposed if the Court is satisfied that the offender's level of culpability is so extreme, that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence: s 61(1) Crimes (Sentencing Procedure) Act.
It is for the Crown to establish that an offence falls within s 61(1), but it did not seek to do so in this case. On the evidence I will discuss, I am satisfied that serious though Mr Ahmed's offence undoubtedly was, it does not warrant the imposition of a life sentence.
The standard non-parole period of 20 years imprisonment which the Parliament has imposed for an offence of murder which falls in the middle of the range of objective seriousness of such offences, must also be taken into account: s 54A(2) and Pt 4, Div 1A table Crimes (Sentencing Procedure) Act. Such a non-parole period is the minimum period that an offender must serve in prison before being eligible to be released on parole, for the balance of the sentence which the Court imposes.
That period must be taken into account in the way explained in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is provided in s 54B of the Crimes (Sentencing Procedure) Act.
The seriousness of Mr Ahmed's offence must be assessed by taking into account only the objective factors established by the evidence, which affect the relative seriousness of his offence: s 54A of the Crimes (Sentencing Procedure) Act. It is thus necessary to consider where the facts of his case lie, on the "spectrum" of such offences: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19]. The objective seriousness of his offence is in issue between the parties, even though the relevant facts are not in dispute.
[5]
The evidence
In assessing the objective seriousness of Mr Ahmed's offence, account must be taken of all that he did, but the Court may not take facts into account in a way that is adverse to his interests, unless they were established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28].
As I explained in the conviction judgment, on the evidence led at trial I am satisfied that the Crown established, beyond reasonable doubt, that when he stabbed Ms Elahi as he did, instead of having an impaired capacity to control himself, Mr Ahmed deliberately acted on his intention to kill Ms Elahi, which he formed when he read the text messages she had exchanged with Mr Khan on her phone: at [253].
That must be taken into account in assessing the objective seriousness of his offence, as must what the evidence otherwise established about what Mr Ahmed did to Ms Elahi and the context in which he acted as he did, to so brutally bring about her death.
In the conviction judgment I made findings on the facts which the parties agreed at [55]. They were:
1. Both Mr Ahmed and Ms Elahi were born and grew up in Bangladesh where they first met, after having earlier had contact on social media for some 4 years. They married in September 2011, but never had children. Theirs was not an arranged marriage and it was initially a happy one.
2. They moved together to Australia in 2011, where they eventually came to live at Parramatta. Mr Ahmed worked in various positions at the Arts Hotel at Paddington, from shortly after their arrival. Ms Elahi studied at the University of Western Sydney to obtain a Master's degree, before obtaining work in 2014 with the assistance of a friend, Mr Khan.
3. Mr Ahmed and Mr Khan had first come to know each other in 2004 in Bangladesh, while they were both still unmarried. Mr Khan later also married and the two couples socialised in Australia, together with other friends.
4. Over time Ms Elahi and Mr Khan developed a romantic relationship, which Mr Ahmed came to suspect. They came to share intimate conversations with each other over text and phone calls and went out together. Mr Khan also sent gifts to Ms Elahi's workplace.
5. In early 2015, while the two couples were all in Bangladesh, Mr Ahmed confronted Ms Elahi about her relationship with Mr Khan, which she denied.
6. They returned to Australia and Mr Ahmed and Ms Elahi then obtained permanent residency. On 27 March 2015, Mr Ahmed visited his GP Dr Trung Ngo. He told the doctor that he was stressed with family and his wife and was prescribed Normison to help him sleep.
7. In April 2015 the friendship between Mr Ahmed and Mr Khan came to an end, after Mr Ahmed again confronted Ms Elahi, who denied the affair and Mr Ahmed spoke to Mr Khan about causing problems in his marriage. The friendship between Ms Elahi and Mr Khan, however, continued.
8. Mr Ahmed and Ms Elahi experienced ongoing difficulties with their marriage. Mr Ahmed told friends that Ms Elahi no longer wanted to live with him, as a result of their problems. While they remained living together, they stopped attending social situations as a couple.
9. On 13 April 2015, Mr Ahmed consulted Dr Ngo due to depression over his wife wanting to separate. He said that he could not stop thinking about her leaving, had been scared about her leaving and as a result, had been unable to work for two days.
10. On 18 April 2015, police attended the couple's unit after Mr Ahmed had called an ambulance. Police spoke to both he and Ms Elahi separately and were told by both that there had been no violence or threats of violence by either; that they had been having marital problems; that they had been arguing earlier; Mr Ahmed had become upset and said he was going to leave; due to his emotional state, Ms Elahi panicked about him leaving; and it was her panic which caused Mr Ahmed to call the ambulance. Ms Elahi also said that she had been trying to get him to see a psychologist about his mental health, because she believed he needed help.
11. On 22 April 2015, Mr Ahmed again attended Dr Ngo about his marital issues. Dr Ngo discussed a mental health program with counselling support. Mr Ahmed preferred to wait, as his father-in-law was due to arrive in Australia, to help the couple resolve their marital problems.
12. On 25 May 2015, Mr Ahmed and his father-in-law saw Dr Ngo. Mr Ahmed then said he needed help for his mental state and was referred for a Mental Health Treatment Plan.
13. Between April and July 2015 Ms Elahi also saw Dr Ngo, in whom she confided that she was experiencing marriage problems.
14. On 18 July 2016, Mr Ahmed again visited the doctor, seeking pain medication. He had punched a gyprock wall and fractured two bones in his hand five days earlier, after arguing with Ms Elahi.
15. On 30 August 2016, Mr Ahmed and Ms Elahi attended Dr Ngo's surgery for a post-operative review. Mr Ahmed had undergone surgery for the removal of a nasal tumour/polyp. During his recovery Ms Elahi took time off work to care for him.
16. On 26 September 2016, Mr Khan's wife was given a "love letter" by her brother-in-law, written by Ms Elahi and addressed to Mr Khan. Mr Khan denied knowing what the letter was about. His wife telephoned Mr Ahmed and informed him of the letter and that she had evidence that Ms Elahi and Mr Khan were having an affair. She then forwarded him a copy of the letter and he recognised the writing to be Ms Elahi's.
17. They also considered hiring a private investigator to confirm their suspicions, but Mr Khan's wife declined and Mr Ahmed ended the conversation, saying that he was not feeling well.
18. Later that day Ms Elahi contacted police after a telephone conversation with Mr Ahmed, during which he said things which caused her to believe that he would harm, or kill himself. Police again attended the couple's home, where they found Mr Ahmed standing within the front doorway, upset and emotionally distraught. He told police that his wife was having an affair and that he didn't know what to do about it.
19. Police conducted various checks and found that Mr Ahmed did not have a mental health history. The Mental Health Team was called to attend, but decided not to schedule him. He agreed, however, that he required professional help and would seek assistance from his doctor.
20. On 11 October 2016, Ms Elahi contacted a friend and enquired about moving out of the couple's home and moving in with her, because she wanted a divorce. The friend waited for her to come to stay, but Ms Elahi did not attend.
21. In November 2016, Mr Ahmed told a friend that Ms Elahi wanted a break from the marriage. He travelled back to Bangladesh to spend time with family and to give her time to decide what she wanted to do. Whilst he was away, she confided in a friend that she was considering divorce.
22. Mr Ahmed returned to Australia on 14 February 2017.
23. On 16 February 2017, Mr Ahmed contacted his manager at the Arts Hotel and told him that his wife was talking about divorcing him. On 17 February 2017 they spoke about him coming back to work. That day he also called his mother-in-law in Bangladesh and told her that Ms Elahi planned to divorce him.
24. On 18 February 2017, Mr Ahmed told a friend that Ms Elahi wanted a divorce. He said he wasn't going to help her and that she could do it all herself, as she had already researched the procedure, but that he would try and work on the marriage.
25. That day Ms Elahi met with a friend for breakfast. She was upset and stressed about her ongoing issues with Mr Ahmed and said that she wanted a divorce. She also confided that she had developed feelings for a former male co-worker; that it had not developed into anything physical, but that she had written a letter to him, expressing her feelings; and the letter had been found by his wife, who had shown it to Mr Ahmed. The friend agreed to assist Ms Elahi putting together the paperwork for the divorce.
26. At about 1:00pm a work colleague telephoned Mr Ahmed to see if he could do the night shift on 19 February 2017. Mr Ahmed sounded upset and spoke in a soft voice.
27. At around 7.50pm the couple were at home together, when a heated argument began about Ms Elahi's' relationship with Mr Khan. Mr Ahmed snatched her phone from her hands, in order to go through her messages. He dragged her into the bedroom and demanded that she tell him the truth about what was happening.
28. Ms Elahi then suffered a small injury near her ear which bled and which she wiped with tissues which Mr Ahmed gave her.
29. Mr Ahmed told her that she was lying about the relationship and that the phone would reveal if there was still an ongoing affair. Ms Elahi said she wasn't feeling well and asked for a glass of water. He grabbed her by the hand and took her to the kitchen, where he got her a glass of water. He then picked up a kitchen knife that was on the bench and said: "if you shout or scream, I'll kill you. Give me access to your phone, I will show you that you are lying after you, after proving that I will go away." He then pulled her back into the bedroom.
30. There they sat on the corner of the bed, where Mr Ahmed placed the knife. He told her "I will see the phone. I will see the phone today" and that she would not have time to remove anything. Ms Elahi repeatedly said, "I've done a lot of mistake, please forgive me." She did not want to give him access to her phone, but after a further argument she ultimately unlocked it.
31. Mr Ahmed then reviewed messages on the phone, which showed ongoing contact between Mr Khan and Ms Elahi within recent days, some of which were of a sexual nature.
32. After seeing those messages, Mr Ahmed picked up the knife and stabbed Ms Elahi repeatedly, while she was saying "Forgive me Rasel, forgive me Rasel."
33. Mr Ahmed inflicted fourteen stab wounds to Ms Elahi's back, right upper chest, right ear and right cheek, as well as an incised wound at the base of her right thumb, in keeping with a defensive injury. She also suffered bruises and abrasions to the right side of her face and upper arms.
34. Mr Ahmed then left Ms Elahi on the bed and got his cigarettes. He smoked several cigarettes over about 10 minutes and did not attempt to render her any first aid. At 9:36pm he updated his Facebook status to read: "THE END" and at 9:46pm, he changed the profile picture on Ms Elahi's Facebook account to a photo of the two of them together, smiling.
35. It was not until 9:48pm, that Mr Ahmed called 000 and told the operator that he had "killed my wife" and that she was "dead".
36. When police arrived they found Mr Ahmed covered in blood and Ms Elahi lying on the bed on her back, not breathing. Police attempted CPR, but she was unresponsive and could not be revived. At hospital she was pronounced life extinct at 10:53pm.
37. In the autopsy report the cause of Ms Elahi's death was said to be multiple stab wounds to the chest and abdomen. The fourteen sharp force injuries noted were:
1. Right ear - 40 x 15mm c shaped incision, extending to the cartilage.
2. Right posterior neck - 36mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae.
3. Right posterior neck - 36 x 4mm horizontal stab wound, extending through the muscles of the posterior neck to the cervical vertebrae.
4. Right upper back - 29 x 8mm irregular incised wound, extending into subcutaneous fat.
5. Right upper back - 32 x 5mm gaping stab wound, extending into subcutaneous fat.
6. Right upper back - 42 x 20mm gaping stab wound, extending into the soft tissue of the neck.
7. Right upper back - 36 x 15mm gaping stab wound, terminating in right scapula (fractured).
8. Right mid back - 45 x 10mm gaping stab wound, extending into posterior right pleural cavity just below rib 6, through lower lobe of right lung and diaphragm into inferior vena cava, just above the liver.
9. Right lateral back - 9mm incised wound, extending into subcutaneous fat.
10. Right lower back - a cluster of superficial incised wounds and red abrasions from 8 x 2mm, up to 20 x 8mm
11. Left lower back - 40 x 20mm vertical gaping stab wound, through right psoas muscle into the abdomen, into, but not through, the jejunal wall.
12. Right thumb - 15 x 10mm irregular incised wound, extending into subcutaneous fat.
13. Right cheek - 15 x 8mm gaping stab wound through cheek and right upper lip to buccal mucosa - tip of knife retrieved between two of right upper teeth.
14. Right upper chest - 55 x 20mm gaping stab wound, extending into right pleural cavity between ribs 3 and 4.
1. The following blunt force injuries were also found:
1. Head and Neck
1. Small tan abrasions just lateral to the right eye, on right upper cheek and on right side of jaw.
2. Contusion on deep surface frontal scalp.
1. Torso
1. 40 x 10mm red-purple bruise/abrasion on right upper chest.
1. Upper limbs
1. Bruise and abrasion on left upper arm.
2. Bruises on right upper arm, forearm and wrist.
1. Lower limbs
1. Abrasions on anterior right knee.
[6]
The parties' cases
It was not the Crown's case that Ms Elahi's murder was premeditated, despite the internet investigations Mr Ahmed had conducted before he returned to Australia from Bangladesh in February 2017, which included punishing adulterous wives. Still the Crown's case was that objectively, his offence fell slightly above the mid-range of seriousness.
The Crown submitted that this was established by the evidence of Mr Ahmed's brutal, sustained attack on Ms Elahi with a deadly weapon and he then having callously delayed calling 000, in order to deny her any chance of surviving that attack. This had not only been callous in the extreme, but had significantly increased the seriousness of his offence.
In oral submissions the Crown also contended that this conclusion was supported by Mr Ahmed's failure to make out the second limb of the s 23A partial defence which he had advanced, I having not found that he was substantially impaired when he killed Ms Elahi. That was submitted to have established a relevant distinction with what arose for consideration in Haydar (No 4) [2017] NSWSC 615, where the second limb of the defence was established, but the third was not. That was because Mr Haydar had a significantly greater degree of impairment than was present in Mr Ahmed's case.
The case advanced for Mr Ahmed was that his offence fell below the mid-range, because the evidence established that Ms Elahi's murder was not planned or premeditated, but followed immediately upon him discovering lewd messages on her phone, he having had a genuine belief that she was pursuing a sexual affair with Mr Khan and then not having resisted his impulses of jealousy, humiliation and rage.
It was submitted that while Mr Ahmed had made no attempt to render assistance to Ms Elahi, it was relevant that he had called 000 and then made admissions to having killed her. He had then remained at their home and opened the door to police, rather than trying to flee the jurisdiction, to dispose of the knife he had used, or his blood stained clothing. He then made other admissions and later in his police interview, he made even further admissions, which had not only cast light on the seriousness of his offence, but had been relied on by the Crown at trial.
It was also submitted to be relevant that Mr Ahmed's offence had not been committed in the context of repeated and escalating domestic violence or recurrent criminal conduct: Cherry v R [2017] NSWCCA 150 at [76]-[77].
[7]
The offence falls above the mid-range of seriousness
Contrary to the cases advanced orally for the parties, the evidence about Mr Ahmed's mental health, while relevant to the assessment of his moral culpability for his offending and to considerations such as his prospects of rehabilitation; his risk of re-offending; and his dangerousness, it is not relevant to an assessment of the objective seriousness of his offence. That must "be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending without reference to matters personal to the offender": Muldrock at [27].
Further, Mr Ahmed having no history of prior domestic violence does not make the murder for which he is now being sentenced objectively less serious, contrary to the case advanced for him.
That is because antecedent criminal history may illuminate an offender's moral culpability for the offending: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14. But the gravity of the offence must be assessed by reference to its objective seriousness and the sentence which is imposed must not exceed what is proportionate to its gravity: R v McNaughton [2006] NSWCCA 242 at [15]. The objective circumstances of an offence thus do not encompass the offender's prior convictions, nor it follows, prior conduct which may have amounted to domestic violence: McNaughton at [24].
An offence involving an intention to kill is ordinarily more serious than killing without such an intention: Tran v R [2011] NSWCCA 116 at [39]. As I explained in the conviction judgment, I am satisfied beyond reasonable doubt that Mr Ahmed had that intention.
That conclusion flows from the evidence of all that Mr Ahmed did before he made the 000 call. Taken together, all those acts, I am also satisfied establishes beyond reasonable doubt that objectively, on the spectrum of seriousness, his offence falls above the mid-range.
That conclusion is driven not only by Mr Ahmed's considerably greater physical stature than Ms Elahi, but also by the obvious ferocity of his attack with the deadly weapon which he used to kill her. That he broke off the tip of that large knife between her teeth, when he stabbed her in the face, may not be overlooked. Nor may the fact that having inflicted many serious injuries to various parts of her body by his repeated stabbing, Mr Ahmed then made certain that they were fatal, by all that he did while he delayed making the 000 call. Thereby he ensured that Ms Elahi was beyond help, when police and ambulance responded.
[8]
Moral culpability
I am also satisfied that Mr Ahmed's moral culpability for his offence was considerable. Nevertheless, account must be taken of the evidence as to his ongoing mental health problems, he having responded to treatment for his depressive condition, which he has received for the first time in custody.
As explained in Aslan v R [2014] NSWCCA 114 at [33], the principles governing the effect of an offender's mental illness on sentence are those discussed in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. They are:
"[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...
[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...
[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...
[Principle 4] It may reduce or eliminate the significance of specific deterrence ...
[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added)"
Thus while the potential effect of Mr Ahmed's mental illness must be considered, the mere fact that he has a mental illness will not result in a more lenient sentence being imposed upon him. The relevant facts must be considered, in order to determine the consequence of his illness for his sentence.
The experts considered that Mr Ahmed's chronic adjustment disorder was a clinically significant response to an adverse life event, the breakdown of his marriage, which manifested with the syndrome of depression, which made him vulnerable to overreacting: Ahmed (No 2) at [56]-[66]. He first reported symptoms consistent with that illness to his GP in 2015 and was later referred for treatment, but he did not pursue any treatment until he was in custody, after his arrest, when he responded to treatment.
[9]
Mr Ahmed's personal circumstances
I have earlier explained what the agreed facts establish about Mr Ahmed's personal circumstances.
On the evidence Mr Ahmed, now aged 35, was brought up in Bangladesh, his parents having separated while he was a child and his father having remarried. He was well educated, having enrolled in, but not completed his studies at the University of Engineering and Technology in Bangladesh.
He married Ms Elahi in 2011 after they dated for some 4 years and they then moved to Australia, where Ms Elahi studied for a Master's degree and he worked at a hotel, to support them. They became permanent residents in 2015. He has a considerable command of English.
Mr Ahmed has family in Bangladesh, but not Australia. He has no prior criminal record in either country and also no history of domestic violence.
On the character evidence, killing Ms Elahi as he did was out of character, he having supported his family and friends in the past; having undertaken acts of charity; and having been popular in his circle of friends and family.
In custody he has successfully pursued treatment for his mental condition, works and engages in available programs.
[10]
Aggravating and mitigating matters
The parties agreed that there are a number of mitigating and aggravating matters arising under s 21A of the Crimes (Sentencing Procedure) Act, which must also be taken into account in arriving at Mr Ahmed's sentence.
[11]
Aggravating factors
The use of a knife was, I consider, such an intrinsic part of the serious offence for which Mr Ahmed is being sentenced, that it does not require separate consideration as an aggravating factor.
That the offence occurred in Ms Elahi's home, where she should have been safe is, however, an aggravating matter which must be taken into account on sentence: s 21A(2)(eb) and Johnson v R [2016] NSWCCA 286; 263 A Crim R 268 at [41]-[42].
[12]
Mitigating factors
As to mitigating factors which must be taken into account, the evidence establishes that Mr Ahmed had no prior record and was of prior good character, which must also be taken into account, although consideration must also be given to the weight this is to be given, in determining his sentence: s 21A(3)(d) and (f) and Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [25] and [36].
On all of the evidence I have concluded that Mr Ahmed's prior unblemished record and good character must result in the conclusion that he is entitled to some leniency on sentencing, to which he would otherwise not be entitled.
Mr Ahmed is a foreign national, successfully receiving treatment in custody for his depressive condition, where he is working and undertaking available courses. But he will undeniably have limited contact with his family while serving his sentence and it may be accepted that this will have some impact upon him, making his imprisonment somewhat harsher than it would be for the ordinary prisoner. That also requires some recognition: R v Huang [2000] NSWCCA 238; (2000) 113 A Crim R 386 at [19].
Mr Ahmed's prospect of deportation on completion of his sentence, to which reference was made in submissions is, however, irrelevant to the determination of his sentence: R v Pham [2005] NSWCCA 94 at [13].
As to remorse, s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires that Mr Ahmed not only provide evidence that he has accepted responsibility for his actions, but also that he has acknowledged the injury, loss or damage he caused, or that he has made reparation for such injury, loss or damage (or both).
This may be established by post offence conduct, but the authorities have repeatedly discussed the way in which the question of remorse must be approached where, as in this case, the offender does not give evidence.
Section 21A(3)(i) requires that an offender "provide" evidence of remorse, but that does not equate to a requirement that the offender "give" such evidence: Butters v R [2010] NSWCCA 1 at [17]. A failure to give evidence is, however, relevant to the weight which other evidence of remorse can be given: at [18].
Further, self-serving untested statements relied on as evidence of remorse, which are difficult to check or test and do not provide independent verification of alleged behaviour, state of mind or of tangible expression of contrition, may be treated with scepticism: R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380 at [44]. Untested hearsay expressions of remorse to a psychiatrist may also not be sufficient to prove, on the balance of probabilities, that the offender was remorseful: Imbornone v R [2017] NSWCCA 144 at [55], [59].
[13]
Deterrence
The evidence must be considered in light of the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, as I have explained, which includes the notion of deterrence.
As discussed in Munda, general deterrence helps afford protection to the vulnerable against violence. Thus a just sentence must not only accord due recognition to the human dignity of the victim of domestic violence, but also to the community's legitimate interest in the denunciation and punishment of the brutal destruction of a woman, in Ms Elahi's case, by her husband: at [54]-[55].
Thus it was recognised in Kilic, that current sentencing practices for domestic violence offences depart from past sentencing practices for such offending "because of changes in societal attitudes to domestic relations": at [21]. Further, despite an offender suffering mental health problems, substantial weight may still be given to general deterrence: Kaderavek v R [2018] NSWCCA 92 at [12].
This also pays regard to the likely differences in physical strength between men and women and the need for the law to protect persons, particularly women in a domestic relationship, who wish to end that relationship and are attacked, when they express the wish to leave the relationship: Patsan v R [2018] NSWCCA 129 at [39].
Very sadly, this is yet another such case.
In the result, I am well satisfied that both general and specific deterrence have a real role to play in Mr Ahmed's sentence, despite his depressive condition.
Mr Ahmed is an intelligent man and yet he failed to pursue treatment recommended for his condition, before he killed Ms Elahi. Given all that he deliberately then did to her, both when stabbing her repeatedly and when he delayed before he made the 000 call and then later advancing the untrue account which I am satisfied he gave Dr Nielssen in 2018, about the circumstances in which he made that call, I am also satisfied that countervailing considerations of the kind discussed in Veen v The Queen (No 2) at 476, arise to be considered in his case.
On all of that evidence I consider that there is a real need for the sentence imposed to deter Mr Ahmed from further offending and an obvious need to protect others from his actions, as was discussed in R v Engert (1995) 84 A Crim R 67 at 71.
[14]
Special circumstances
The case advanced for Mr Ahmed did not suggest that there should be any finding of special circumstances, which was opposed by the Crown.
I am satisfied that the sentence and resulting non-parole period which must be imposed upon Mr Ahmed as the result of the application of the statutory formula, will provide him with a suitable period of supervision, if he is released into the community, although it appears from the cases advanced, that he is likely to be deported upon any release.
[15]
Comparable cases
For Mr Ahmed, a table of some 28 domestic violence murders dating back to 2001, which were said to be of some relevance in arriving at his sentence was provided. These cases all involved the violent killing of a wife or intimate partner, but in widely varying circumstances and using different weapons.
In oral submissions it was, however, accepted for Mr Ahmed that those cases decided before the introduction of the standard non-parole period were of limited assistance, given the marked differences which could be seen in the sentences imposed before and after the standard non-parole period was introduced.
That reflects that the instinctive synthesis undertaken in those cases necessarily involved no consideration being given to the standard non-parole period, which applies to Mr Ahmed's offence. I have thus not taken account of the earlier decisions.
The utility of referring to previous sentencing judgments on sentence has been repeatedly considered: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 and The Queen v Kilic.
It must be borne in mind that consistency of sentencing is an important consideration, but what must be sought is consistency in the application of relevant legal principles, not numerical equivalence of sentences: Barbaro at [40]-[41]. Other cases may thus establish a range of sentences which have been imposed in the past, but that does not establish that the range, or its upper or lower limits are correct, nor do such sentences establish "the outer bounds of the permissible discretion". Such a history rather provides a yardstick against which a proposed sentence may be examined, but what is important are the unifying principles which those sentences reveal and reflect: Hili at [53]-[54].
In Kilic the care with which other sentences must be approached was further explained. At best they are representative of particular aspects of the spectrum of seriousness of particular offending, so that too much significance may not be given to them: at [22]-[31].
In arriving at Mr Ahmed's sentence it must also be borne in mind that in Cherry, it was observed that "the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators, for the purpose of protecting partners, family members and the wider community": at [78]. There it was offences of assault occasioning bodily harm, rather than murder, which arose for consideration.
[16]
The victim impact statement
The moving victim impact statement made by Ms Elahi's father was tendered without objection, on the basis that it would be taken into account under s 28(4) of the Crimes (Sentencing Procedure) Act which, if the Court considers it appropriate to do so, permits the statement to be considered and taken into account in determining the sentence on the basis that the harmful impact of Ms Elahi's death on the members of her immediate family "is an aspect of harm done to the community".
I am satisfied that it is appropriate so to take Mr Elahi's statement into account.
The heartbreak which Ms Elahi's father described feeling, when he visualised his child's last moments can be well understood, given all of the evidence I have discussed. He and the other members of her family have my deepest condolences for what they have to endure, as the result of Mr Ahmed's dreadful offence.
It is to be hoped that the understanding which they may gain from this sentencing judgment, of the way in which our society and its legal system have dealt with the terrible offending which brought about Ms Elahi's death, may give them some small comfort.
[17]
The sentence
There is no issue that Mr Ahmed's sentence must commence from 18 February 2017, the date of his arrest for Ms Elahi's murder, he having since then been in custody.
Having considered all that I have explained, I have concluded that Mr Ahmed must be sentenced to imprisonment for a non-parole period of 20 years, 3 months, with a balance of term of 6 years, 9 months, that being a total term of 27 years.
The result is that the earliest day Mr Ahmed will be eligible for release is 17 May 2037. That will depend on him then convincing the Parole Authority that he should be released on parole. His sentence will expire on 17 February 2044.
[18]
Orders
For the reasons I have given, I now make the following orders:
1. Shahab Ahmed, having been convicted of the murder of Khondkar Fariha Elahi, you are now sentenced to a term of imprisonment, with a non-parole period of 20 years, 3 months commencing on 18 February 2017 and expiring on 17 May 2037 and a balance of term of 6 years, 9 months expiring on 17 February 2044.
2. The earliest date on which you thus will be eligible for release on parole will be 17 May 2037.
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 February 2023
Mr Ahmed's moral culpability for his offence must also be taken into account. Whether his mental condition reduced his moral culpability is in issue: Muldrock at [53]. But "a just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal ... destruction of a woman by her partner". Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [55].
The identified aggravating and mitigating factors specified in s 21A of the Crimes (Sentencing Procedure) Act which are established by the evidence, must also be taken into account. Any other objective or subjective factors thereby revealed, which affect the relative seriousness of Mr Ahmed's offence, must also be taken into account: s 21A(1). Account must thus also be taken of Mr Ahmed's subjective circumstances: s 21A(1)(c).
Questions of general and specific deterrence must also be taken into account, in arriving at the sentence. That, too, is in issue.
While Mr Ahmed has never denied killing Ms Elahi, his offer to plead guilty to manslaughter was not accepted and at trial, he failed to establish that he had a partial defence of substantial impairment under s 23A of the Crimes Act which, if it had been established, would have resulted in him being convicted of manslaughter, rather than murder. Mr Ahmed's exercise of his right to defend the murder charge cannot, however, result in the imposition of a longer sentence upon him.
The Crown also accepted that in the circumstances, while Mr Ahmed is not entitled to a utilitarian discount on sentence of the kind explained in the guideline judgment given in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, he never having denied his guilt of the killing and having made admissions which it is accepted reduced the length of his trial, he is entitled to a lesser penalty than would otherwise have been imposed upon him: s 21A(3)(l) and s 23 of the Crimes (Sentencing Procedure) Act.
As explained in the guideline judgment by the then Chief Justice, the purpose of a utilitarian discount is to reflect the benefits which flow from a guilty plea for the efficiency and effectiveness of the criminal justice system as a whole, as well as to witnesses and victims who, as the result of such a plea, are spared having to give evidence and the personal rumination of traumatic events, which is inevitably involved in that process. In some cases, however, a plea may not result in any discount at all: Thomson & Houlton at [157]-[158].
Although it is common ground that while Mr Ahmed was convicted of murder, having failed to establish the defence he raised, his admissions and that the facts agreed did facilitate the administration of justice, by reducing the length of the trial and that this may thus be taken into account, the penalty which is imposed upon him must not be unreasonably disproportionate to the nature and circumstances of his offence: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [45].
Attention must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on Mr Ahmed must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio.
If there is to be any such adjustment, however, it must not be such as to reduce Mr Ahmed's non-parole period below the minimum term which justice requires that he serve, given the offence he committed: Power v The Queen (1974) 131 CLR 623 at 628-629; [1974] HCA 26.
It is also necessary to draw attention to the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious violence offences", which under s 5A, includes the offence of murder.
The effect of this Act is that the State may later apply to the Supreme Court for an order that Mr Ahmed continue to receive supervision or remain in detention, at the end of his sentence. If the Court is then satisfied, to a high degree of probability, that he poses an unacceptable risk of committing another serious offence if not kept under supervision, it may make an order under s 5B for his extended supervision. An order for continuing detention may be made under s 5C, if the Court is then satisfied that adequate supervision will not be provided for him, by an extended supervision order.
In the conviction judgment I also explained the expert and other evidence which the parties led: at [56]-[66] and [100]-[199] respectively. The evidence included that Mr Ahmed had given five accounts of what he had done to Ms Elahi, in the 000 call which he made on 18 February; to police when they attended; in his police interview later that night; and in 2018, first to Dr Nielssen and later to Dr Martin.
I do not repeat all that I explained in the conviction judgment about the differences in Mr Ahmed's accounts. But in resolving what lies in issue as to the objective seriousness of his offence, I have borne in mind what I there explained about what the evidence established as to all that Mr Ahmed did, when he killed Ms Elahi.
At the sentence hearing the parties led further evidence, without objection, which I have also taken into account in resolving what lies in issue.
The Crown tendered a victim impact statement provided by Ms Elahi's father, Khondkar Mahbub Elahi and Mr Ahmed tendered a further report provided by Dr Nielssen, as well as Corrective Service records and letters which members of his family and a friend, had written to the Court. Some parts of those letters were not pressed.
In resolving what lies in issue I have also taken into account that Mr Ahmed did not himself give evidence on sentence.
In oral submissions it was argued that it was of critical importance to the conclusion that Mr Ahmed's offence fell below the mid-range, that there had been no premeditation. Reliance was also placed on conclusions reached in what were said in oral submissions to be a particular comparable case, Haydar (No 4). The conclusions there reached were submitted to support the conclusion that Mr Ahmed's offence was below mid-range, Mr Haydar's offence having involved limited premeditation and an intervener in the stabbing, who he had also stabbed. Those features were both absent in Mr Ahmed's offence.
It was also submitted that it would be found on the expert evidence, that Mr Ahmed's then untreated depressive condition was causatively connected with his offence, because it had made him prone to overreacting. Further, it was relevant that much of the evidence about his actions prior to the making of the 000 call came from his admissions, although the Facebook entries were objectively provable. That conduct was, however, submitted to be indicative of his intent, rather than aggravating the seriousness of his offence.
That conclusion is reinforced by the evidence of the surrounding circumstances, which must also be taken into account.
The agreed facts established that even though Ms Elahi pleaded for Mr Ahmed's forgiveness during their lengthy, violent argument over access to her phone, as well as finally stabbing her to death, Mr Ahmed also injured her otherwise. There can be no doubt that Ms Elahi then knew that he would find in her phone the messages which she had exchanged with Mr Khan and so understandably, resisted giving him the access which he kept demanding.
That explains the injuries Mr Ahmed inflicted near Ms Elahi's right eye and to her cheek, jaw, scalp, chest, left upper arm, right upper arm, forearm and wrist, as well as to her right knee. They were all consistent with Mr Ahmed's accounts of having dragged Ms Elahi from their bedroom to the kitchen after he had first hit her, causing bleeding near her ear; then back to the bedroom, while carrying the large knife with which he later stabbed her; and there threatening to kill Ms Elahi, if she did not give him access to her phone.
There can be no question that Ms Elahi then had good reason to fear Mr Ahmed, despite the absence of prior domestic violence on his part towards her. On his later accounts, during this argument Ms Elahi even offered to return to Bangladesh with him, despite having earlier decided that she would herself pursue the divorce which he knew even before he left to go to Bangladesh in November 2016, that she wanted. Despite her offer, he still persisted in his demands for access to her phone, intent on pursuing his suspicions that her relationship with Mr Khan was continuing.
It is in this context that Mr Ahmed's researches into punishing adulterous wives arises to be considered, his accounts having included that he had not planned to kill Ms Elahi.
Mr Ahmed also told police that he had decided that he would not agree to a divorce because he wanted to keep Ms Elahi, because of what he had invested in her education. But it was his suspicions about Mr Khan which drove their final argument, after she had told him that she intended to pursue a divorce, he insisting that she give him access to her phone, because it required use of her thumb.
Mr Ahmed did not tell police or the experts about the internet researches he had earlier pursued, which established that he had considered punishing Ms Elahi before he killed her, even if he had not planned to do either. The Crown accepted that Ms Elahi's murder was not premeditated. That being so, I accept that Mr Ahmed cannot be sentenced on the basis that his internet searches prove beyond reasonable doubt that his offence was either planned, or premeditated.
On Mr Ahmed's case that was an important factor, which would drive the conclusion that his offence fell below the mid-range. I disagree.
Had the evidence established prior planning or premeditation, Mr Ahmed's offence would certainly have been more serious. Given all that Mr Ahmed actually did, however, not only in taking up and using the knife as he did after he had threatened to kill Ms Elahi and then delaying the 000 call, to make sure that his intention to kill was achieved, I am well satisfied that his offence fell above the mid-range of seriousness.
In fact I consider that this was a grave example of such an offence.
As I explained in the conviction judgment, on the agreed facts it must be accepted that it was only when Mr Ahmed read the messages on her phone, which revealed the depth of the relationship Ms Elahi had formed with Mr Khan, that he became so enraged that he killed Ms Elahi.
Mr Ahmed also told Dr Nielssen that he had made the 000 call while holding Ms Elahi in his arms, after she had told him that she was dying. I found that this was untrue, inconsistent as it was with the agreed facts and his earlier accounts.
Because Mr Ahmed gave no evidence on sentence, no light was shed on the contradictory aspects of his accounts about what happened before and after he stabbed Ms Elahi, which remain untested.
But the autopsy objectively established that Mr Ahmed not only inflicted a wound to Ms Elahi's right ear, but that he had stabbed her twice in her right posterior neck, to her vertebrae; four times in her right upper back, one stab fracturing her right scapula; in her right mid back, through her right lung and diaphragm; in her right lateral back; in her right and left lower back, that wound extending through the muscle in her abdomen; in her right upper chest, between her ribs into her pleural cavity; to her right thumb, that likely to have been a defensive injury; and into her right cheek, so hard, that the tip of the knife broke off between Ms Elahi's upper teeth.
These were horrifying injuries, which can leave no doubt that by his repeated attack with the deadly weapon with which he had armed himself, Mr Ahmed acted, intending to kill Ms Elahi.
Mr Ahmed first admitted having stabbed Ms Elahi in his 000 call. What he said then and later also established beyond any doubt that he deliberately did considerably more than simply stabbing Ms Elahi, to ensure that she did not survive his brutal attack, but was past help, when he made that call.
Contrary to the case advanced for Mr Ahmed, what he so did is not only a part of the offence for which he is being punished, but made his offence objectively much more serious than it otherwise would have been and certainly more serious than an offence falling below the mid-range. His further deliberate and callous actions do not merely involve post offence events which follow the technical limits of his crime, only to be taken into account as aggravating matters, in the way discussed for example, in R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
That is because Mr Ahmed's accounts included leaving Ms Elahi lying helpless on their bed, bleeding to death from her many serious injuries, while he went to smoke some cigarettes; then using her thumb to access her phone; posting a photo of them on her Facebook page and the message "THE END", on his page; and then waiting until she had stopped breathing, before calling 000 and telling the operator that an ambulance was not required.
Mr Ahmed was correct, because the CPR attempted by police and ambulance officers who were quickly at the scene, was unable to save her life.
These acts were not only established by Mr Ahmed's admissions, but also by various objective evidence, which I am satisfied put beyond question that objectively, his offence fell above the mid-range, notwithstanding that he had not planned to kill Ms Elahi as he did and that he had no history of prior domestic violence. There can be no doubt on all of the evidence, as to the nature of the terrifying and painful death which he caused.
I am also satisfied that the case advanced for Mr Ahmed, that the circumstances of his offence were akin to those which arose for consideration in Haydar (No 4) may not be accepted, even though there were some elements which both offences had in common.
Garling J sentenced Mr Haydar, who had also stabbed his wife to death in a frenzied attack with a knife and had also stabbed their daughter, who tried to intervene, for which he was also convicted and sentenced.
Garling J had earlier concluded that Mr Haydar suffered a mild to moderate depressive disorder, which substantially impaired his capacity to control himself when he killed his wife, satisfying the second limb of the s 23A defence: R v Haydar (No 3) [2017] NSWSC 159 at [316]-[329]. The third element was not, however, proven and so Mr Haydar was convicted of murder. Garling J concluded that the causes of his loss of self-control were his feelings of jealousy and anger at a time when his depression was present and although mild to moderate, it was sufficient to impair his capacity for self-control. But application of broad community standards and values did not permit the conclusion that his impairment was so substantial, as to warrant his liability for murder being reduced to manslaughter: at [330]-[348].
On sentence Garling J found that Mr Haydar's offence had also involved a frenzied and violent attack on his wife in their home, he intending to kill her and not being deterred in undertaking his prolonged attack, by the intervention of his daughter. His Honour concluded that the objective seriousness of his offence thus fell in the mid-range of seriousness: Hayder (No 4) at [60].
That conclusion rested on evidence that Mr Haydar had killed his wife after returning to Australia from Lebanon. While there they had exchanged text messages in which he accused his wife of being unfaithful to him, while he had remained faithful to her. He wanted marital reconciliation, but she was clearly of the view that the marriage was over; she wished to live separately from him; and while in part he recognised that the marriage was finished, his actions did not always suggest that he was willing to accept this: at [31]-[32].
An argument broke out while dinner was being prepared. His daughter saw Mr Haydar stabbing his wife in the back. She attempted to put herself between them and to push him away from her mother. She was also wounded and he continued to attack his wife in the kitchen, dining and living areas, while she protested her innocence. He only ceased his attack when his daughter called 000. He then left, but soon turned himself in to police.
Garling J concluded that Mr Haydar had intended to kill his wife and that his loss of control was triggered by anger derived from jealousy over her perceived new relationship and her final rejection of him: at [35]-[41].
While there are thus obvious features which Mr Ahmed's offending has in common with Mr Haydar's offence, anger and jealousy over another relationship and a death caused by repeated stabbing, there are also relevant differences. Importantly Mr Haydar did nothing of the kind which Mr Ahmed did after stabbing Ms Elahi, to ensure that she was beyond help when the 000 call was responded to.
Those further cruel and deliberate steps ensured Ms Elahi's death and I am satisfied, made Mr Ahmed's offence objectively more serious than that committed by Mr Haydar.
Accordingly I am satisfied that the conclusions which Garling J reached about the objective seriousness of Mr Haydar's offence and the resulting sentence imposed upon him, thus do not preclude the conclusion that Mr Ahmed's offence fell above the mid-range.
The experts also agreed that Mr Ahmed's condition was not of such a nature that it could be concluded that he was not aware of the consequences of his actions, when he killed Ms Elahi, but it made him vulnerable to overreacting: Ahmed (No 2) at [58]-[65].
Consistent with the lay evidence, the experts agreed that Mr Ahmed's condition fluctuated over time. But when he killed Ms Elahi, it did not significantly impair his ability to control himself: Ahmed (No 2) at [252]. And when he stabbed Ms Elahi and delayed making the 000 call, Mr Ahmed acted both with knowledge of what he was doing and an understanding of the gravity of his actions, he then intending to kill her: Ahmed (No 2) at [200]-[253].
On that evidence I accept that his condition is relevant to the assessment of his moral culpability, his depressive condition having contributed, to some extent, to Mr Ahmed deciding to act on his impulse to kill Ms Elahi, when he became even more enraged by what he read in the text messages on her phone, that being entirely contrary to his prior good character. Undoubtedly, had he not suffered that condition, his moral culpability would have been greater.
But I am not satisfied that his depressive condition contributed much to his decision to delay making the 000 call to ensure her death. It is difficult to see that what Mr Ahmed then did was either impulsive, or the result of any overreaction to the text messages he had read.
In the result, I am satisfied that Mr Ahmed's condition was such as to have somewhat reduced his moral culpability for his offending.
Despite this conclusion, I do not consider that Mr Ahmed's condition warrants less weight being given to considerations of general or specific deterrence, to which I will return.
The strength of the Crown case and the inevitability of conviction are also relevant to an assessment of the existence of remorse: R v Sutton [2004] NSWCCA 225 at [12].
Since he made the 000 call on 18 February 2017, Mr Ahmed has never denied killing Ms Elahi and he also made pre-trial disclosures about some matters which would otherwise not have been known to police.
It was thus submitted for Mr Ahmed, that his recognition of the wrongness of what he had done and the way in which the trial was conducted, established his remorse. These are relevant considerations, but there are also inconsistencies in the accounts he has given which must be considered, as must his decision to exercise his right not to give evidence, either at trial or on sentence, which has had the result that his accounts remain untested.
It was the Crown's case that any remorse which Mr Ahmed had shown was also qualified by his failure to accept responsibility for the murder which he had committed, having by his unsuccessful defence sought to shift blame onto his mental illness. Thus it was open to conclude that there was "some qualified remorse", but on balance, remorse had not been demonstrated as a mitigating factor.
While Mr Ahmed had made the 000 call and had not run away, or made up a story, as can happen, the case against him would have been very strong, despite his admissions. In the circumstances, it was argued, his actions were not compelling evidence of remorse, especially given all that he had done after he stabbed Ms Elahi. On balance it would thus be concluded that remorse had not been established.
In assessing the existence of any remorse it is relevant that during his police interview, Mr Ahmed said that what he had done to Ms Elahi was very wrong and not forgivable, but in the end, contrary to his chilling description of all that he had done to her, including his account of how he had delayed before making the 000 call, he also said that he had not intended to kill Ms Elahi. As I have explained, that may not be accepted.
Mr Ahmed also then explained that he did not want a divorce, because he had decided that he wanted to keep Ms Elahi, because of his investment in her education. It was finally his pursuit of his suspicions about her ongoing affair, which were confirmed when he read the text messages, which enraged him to the point that he acted on his intention to kill her.
In 2018 Mr Ahmed also gave an account to Dr Nielssen of how he came to make the 000 call, which was inconsistent with the agreed facts and which I concluded was untrue: Ahmed (No 2) at [182]-[192]. He also then told Dr Nielssen that in custody he still dreamt about the text messages and that "I get so angry and then I feel so sorry and cry for her.. I will never see her again..she is gone and I have nothing left": Ahmed (No 2) at [184].
Given the strength of the evidence, including the objective evidence, of all that he did before he made the 000 call and what he told Dr Nielssen about his feelings, I am not persuaded that remorse has been established.
What is required by s 21A(3)(i) is evidence not only of Mr Ahmed's acceptance of responsibility for his actions, but also acknowledgement of the injury, loss or damage he caused when he killed Ms Elahi as he did, or reparation for such injury, loss or damage, or both. I am satisfied that what I have discussed, absent evidence given by Mr Ahmed himself, falls well short of satisfying these requirements.
On all of this evidence I am also unable to conclude that Mr Ahmed is unlikely to reoffend and has good prospects of rehabilitation: s 21A(3)(g) and (h). Dr Nielssen was guarded in his May 2019 report, explaining psychiatrist's limited ability to predict future behaviour and the limited assistance which risk assessment instruments and identified risk factors provide.
Dr Nielssen considered that the treatment Mr Ahmed had received in custody meant that the circumstances of his offence were unlikely to recur, but that obviously depends on him continuing treatment, which had been recommended to him, but he had not pursued, before he went into custody.
In the absence of evidence from Mr Ahmed which would provide a basis for positive conclusions that he has achieved insight into his offending and need for ongoing treatment, I consider that while he has prospects of not reoffending and of rehabilitation, the assessment of those prospects must remain guarded.
The sentence imposed upon Mr Ahmed must also deter others who are inclined to act on feelings of possession and jealousy, from pursuing domestic violence against those with whom they share a home and who, as the evidence of the terrible injuries Ms Elahi suffered well establishes, are vulnerable to murderous attack with weapons ready to hand, such as kitchen knives.
Those who are dissatisfied with a spouse or partner's desire to leave the relationship, must be dissuaded from so arming themselves and acting upon the impulse to kill, which such a desire may generate.
That is because in the society of which we are all members, none of us is at liberty to act on such dreadful impulses, no matter how angry or wronged we may feel by the conduct of those with whom we have been involved in intimate relationships.
Accordingly, the sentence which is imposed on Mr Ahmed, must be sufficient to deter not only him, but also others, from so acting in future.
In their oral submissions the parties particularly addressed the sentence imposed in Haydar (No 4), which I have already discussed and that imposed in R v McKenzie [2011] NSWSC 1460.
Like Haydar (No 4), some of the cases which attracted the standard non-parole period involved murder by stabbing: R v Yuke [2010] NSWSC 754, R v Neave [2012] NSWSC 229, R v Bretherton [2013] NSWSC 1339 and R v Lutu [2014] NSWSC 413. Some involved offenders suffering mental health problems: Neave, Bretherton, Haydar, McKenzie and in Yuke, the offender had an intellectual disability.
In Yuke Barr AJ imposed total a sentence of 24 years with a non-parole period of 14 years for an offence found to have fallen below the mid-range, after a finding of special circumstances, involving the stabbing murder of the victim, with whom Mr Yuke had been in an intimate relationship for a number of years. He habitually drank alcohol to excess and they were both affected by alcohol, when they began to argue. Mr Yuke came and went from the house, on one occasion taking with him a kitchen knife. The victim also remonstrated publically with him, they accused each other of infidelity and the victim offered to fight him.
Police were called and they then found Mr Yuke so affected by alcohol that he could not stand, walk or even sit and his speech could not be understood. Police left and when they later returned, Mr Yuke had returned to the victim's home, where he killed her with a single blow with the knife. Later he told patrolling police officers that she had "stabbed herself". But he eventually offered to plead guilty to manslaughter. At trial the issue was whether he had an intention to kill, given the extent of his intoxication.
The expert evidence was that he had a substantial intellectual defect, with an IQ of only 62 and with the contribution of his chronic history of alcohol abuse, he was assessed as having the level of functioning of a 10 year old child. He also had a history of drug abuse from childhood, which had abated when he entered this relationship, but his alcohol abuse had not. On that evidence less weight was given to specific and general deterrence.
The circumstances of Mr Yuke's case are so far removed from what here arises to be considered, an offence which I have concluded falls above the mid-range for the reasons which I have explained, that I am satisfied that the sentence imposed on Mr Yuke is of no assistance in determining Mr Ahmed's sentence.
In Neave, RS Hulme J imposed a total sentence of 17 years with a non-parole period of 13, for an offence involving the stabbing murder of Mr Neave's girlfriend, he having been regularly treated for his longstanding depressive illness and his defence of substantial impairment not having been accepted by a jury.
Mr Neave and his girlfriend had fought over messages on their respective phones. There had been no prior history of violence, but he had punched his victim in the face, before grabbing a knife and the victim sustaining defensive wounds, before they stopped and he agreed to take her to hospital. They argued further during the drive, with the final result that he assaulted and stabbed her some 66 times, before concealing her body in the garage. Mr Neave later made admissions in a 000 call, after he had stabbed himself, with one wound potentially being fatal, having penetrated his heart. He later gave conflicting accounts to police.
On the expert evidence RS Hulme J concluded that Mr Neave was at the time substantially impaired in both his capacity to control himself and to understand events and that less weight thus had to be given to general deterrence. The sentence imposed reflects that his Honour must have concluded that it fell below the mid-range of seriousness.
The circumstances of Mr Neave's offence and his resulting sentence are also far removed from what here arises for consideration and thus of no real assistance, in arriving at Mr Ahmed's sentence.
In Bretherton, Harrison J sentenced the offender to a total sentence of 21 years, with a non-parole period of 15 years, 9 months, for the stabbing murder of the victim with whom he had been in a relationship for some 10 years, during which they had separated and reconciled, on a number of occasions.
There were ongoing arguments between them over a property settlement. Mr Bretherton was also intensely jealous over the victim's close relationship with her family and there had been some past domestic violence. After he stabbed her, both Mr Bretherton and a neighbour called 000, he admitting then that he had stabbed the victim several times in the chest during their argument. Police found evidence of a violent struggle and the victim had suffered 12 stab wounds to her back, torso and cheek, as well as defensive wounds to her hands and fingers.
The expert evidence was that Mr Bretherton had depression associated with an obsessive-compulsive personality style, but his substantial impairment defence had failed and Harrison J was unable to find that it substantially impaired his capacity either to understand events or to control himself, even though he was moderately affected by alcohol at the time of the killing, he having also had a significant history of alcohol abuse. Harrison J concluded that the offence was "a spontaneous uncontrolled over-reaction to a domestic dispute", which fell slightly below the mid-range and that Mr Bretherton's inability to express remorse was associated with his condition.
The circumstances of Mr Bretherton's offence are also far removed from what here arises to be determined and thus of limited assistance in determining Mr Ahmed's sentence.
In Lutu, Campbell J imposed a total sentence of 18 years, 9 months and a non-parole period of 14 years on Mr Lutu, for the stabbing murder of his wife during an argument, after a history of domestic violence, following a 25% discount for an early plea. That reflects a starting sentence of 25 years before discount.
Mr Lutu and his wife had earlier argued over the church they were to attend and he had become angry, punching her to the head and threatening her further with his clenched fist. He was sentenced to a good behaviour bond for those offences and there was no further offending, until he was made redundant from his work, some years later, which resulted in quarrels over money and the family finally having to relocate.
An argument over bread escalated to the point that Mr Lutu threatened his wife with a chair and then formed the impression that she was going to leave him and report him to police. She denied this, but he stabbed her repeatedly to the neck and torso with a kitchen knife. His children ran from the house and when police attended, he admitted what he had done.
Mr Lutu suffered no mental impairment. In issue were other matters, including questions of remorse, provocation, discount and special circumstances. It was concluded that Mr Lutu had intended to kill his wife, his severe domestic violence having been aggravated by the presence of his children, that requiring particular denunciation, as well as general and specific deterrence. The offence was found to have been a serious example of murder and his moral culpability high.
Again, the circumstances of Mr Lutu's case are so different to what here arises for sentence, that I am not much assisted by the sentence which was imposed upon him.
I have already discussed Haydar (No 4), Mr Haydar's offence bearing the closest similarities to Mr Ahmed's offence, which was found by Garling J to have fallen in the mid-range. The total sentence imposed on Mr Haydar was, however, 21 years, 10 months with a non-parole period 16 years, 6 months, reflective of conclusions reached about other relevant matters. For reasons which I have already explained, I have concluded that Mr Ahmed's offence was more serious than that committed by Mr Haydar and that it must, accordingly, attract a higher sentence.
Particular reliance was also placed on the sentence which I imposed in R v McKenzie, which it was submitted had relevant similarities, because Mr McKenzie also suffered a depressive disorder which fell short of impairing his capacity to the extent that he had a partial defence; that the offence was not premeditated; and that it was concluded that his was not a mid-range offence.
Mr McKenzie had pleaded guilty to murdering his wife by smothering her, while she struggled with him for her life, he having survived an unsuccessful attempt at suicide, shortly afterwards. Mr McKenzie had a history of depressive illness, which it was common ground made him vulnerable to reacting impulsively and in an aggressive manner, as well as suffering a very painful arthritic condition. But he did not rely on either of these, to excuse his offending: at [16]. His view was that the maximum penalty should be imposed upon him: at [20].
The only issue to be resolved was whether Mr McKenzie's offence fell at the lowest end of the range, or only towards the bottom of that range: at [17].
I concluded that Mr McKenzie's offence did not fall at the very bottom of the range, given the evidence that his wife's death followed a struggle in which she vigorously defended herself from his violent attack. That was a struggle of relatively short duration and not premeditated, but Mr McKenzie had used considerable force to achieve his aim. At the time he had determined to end his own life, the result of the depression and painful and debilitating physical condition which he suffered, both of which had worsened in the period immediately beforehand.
I found that while the depression had not deprived Ms McKenzie of the ability to understand the consequences of his actions, it had left him vulnerable to reacting impulsively and aggressively. It was common ground that his intention to kill had persisted only for a short period and was immediately regretted once achieved. But I concluded that it had persisted for sufficiently long to enable him to achieve his end, despite his wife's struggle for her life. Thus by his senseless and merciless assault, he had deprived the woman he said that he loved of her life and their children of their mother: at [23]-[25].
I also consider that both the circumstances of Mr McKenzie's offence and his personal circumstances were so far removed from what here arises to be determined, that Mr McKenzie's sentence is simply irrelevant.