R v Ahmed

Shahab Ahmed (Offender) Representation: Counsel: S Hughes (Crown) A Djemal (Offender)

Solicitors: Solicitor for Public Prosecutions NSW (Crown) Oxford Lawyers (Offender) File Number(s): 2017/52488 Publication restriction: Nil

Judgment

1. 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.

The Court's sentencing task

1. 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].
2. 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].
3. 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."
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

The evidence

1. 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].
2. 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].
3. 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.
4. 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.

The parties' cases

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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].

The offence falls above the mid-range of seriousness

1. 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].
2. 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.
3. 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].
4. 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.
5. 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.
6. 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.

Moral culpability

1. 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.
2. 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)"
3. 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.
4. 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.

Mr Ahmed's personal circumstances

1. I have earlier explained what the agreed facts establish about Mr Ahmed's personal circumstances.
2. 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.
3. 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.
4. 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.
5. 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.
6. In custody he has successfully pursued treatment for his mental condition, works and engages in available programs.

Aggravating and mitigating matters

1. 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.

Aggravating factors

1. 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.
2. 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].

Mitigating factors

1. 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].
2. 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.
3. 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].
4. 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].
5. 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).
6. 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.
7. 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].
8. 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].

Deterrence

1. 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.
2. 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].
3. 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].
4. 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].
5. Very sadly, this is yet another such case.
6. 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.
7. 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.
8. 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.

Special circumstances

1. The case advanced for Mr Ahmed did not suggest that there should be any finding of special circumstances, which was opposed by the Crown.
2. 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.

Comparable cases

1. 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.
2. 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.
3. 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.
4. 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.
5. 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].
6. 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].
7. 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.

The victim impact statement

1. 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".
2. I am satisfied that it is appropriate so to take Mr Elahi's statement into account.
3. 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.
4. 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.

The sentence

1. 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.
2. 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.
3. 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.

Orders

1. 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.

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