R v Ahmed

Supreme Court of NSW|2023-02-10|Before: Adams J

Judgment

On 18 February 2017, Shahab Ahmed, the offender, stabbed his wife Khondkar Fariha Elahi 14 times over her body in a frenzied attack in her own home. She was stabbed with such ferocity that the tip of the knife snapped off and was later found lodged between two of her teeth. As she lay dying on her bed begging for forgiveness, the offender smoked some cigarettes, made entries on his Facebook page and logged into Ms Elahi's Facebook page to make an entry there as well. By the time he telephoned police to report what he had done, he knew that Ms Elahi was dead.
The offender made full admissions to police that same night. His explanation was that his wife had had an affair and wanted to leave the marriage, but he did not want her to divorce him. He said he became angry when he saw text messages of a romantic nature between his wife and his former friend with whom she had fallen in love. He also said that he did not wish to divorce her as he had invested in the marriage by supporting her through university.
The offender offered to plead guilty to manslaughter at the first available opportunity on the basis that he was substantially impaired within the terms of s 23A of the Crimes Act 1900 (NSW) at the time he killed his wife. Although he was seeing a medical practitioner regularly in the period leading up to her death, he had not reported any symptoms of any mental illness in that period. He was not on any medication or treatment plan for any anxiety or depression. He was employed and had recently travelled to Bangladesh to visit his family.

The facts on sentence

There was little factual dispute at the trial. The contest was predominantly as between the expert witnesses concerning the significance of the offender's adjustment disorder. I have taken the following summary of facts from the sentencing remarks of Schmidt J, the evidence at the trial and the written submissions filed on sentence. The offender only disputed two of the facts on sentence found by Schmidt J which I will address further below.
At the time of her death, Khondkar Fariha Elahi was 29 years old. She had met the offender in Bangladesh when she was 19 years old. He was five years older than her. They later married and moved to Australia in 2011. It was not an arranged marriage and on all accounts the marriage was initially a happy one.
The offender 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 in accounting and then obtained work in 2014 with the assistance of a mutual friend, Mr Khan. The offender and Mr Khan had met in 2004 in Bangladesh. Mr Khan later married, and the two couples socialised in Australia, together with other friends.
From 2015, the marriage was no longer a happy one. Mr Khan gave evidence that Ms Elahi had complained to him that she was effectively doing all of the work in the home, all the cooking, the cleaning, the shopping and other household chores after she had returned from working all day, whilst her husband sat and played computer games. A mutual friend who gave evidence at the trial, Mr Barua, had assisted Ms Elahi and the offender when they first moved to Australia. He gave evidence that the couple argued about household work and the fact that the offender had not been honest to Ms Elahi about his level of education.
At about this time, and whilst they were working together, Ms Elahi and Mr Khan developed romantic feelings for each other. This included intimate text exchanges and phone calls, and some outings. Mr Khan also sent gifts to Ms Elahi's.
The offender became suspicious of the strong connection between Ms Elahi and Mr Khan in 2015 and at a time when both couples were in Bangladesh, he confronted Ms Elahi about her relationship with Mr Khan, which she denied.
On 27 March 2015, after they had returned to Australia, the offender visited his General Practitioner Dr Trung Ngo and told him that he was stressed with family and his wife. He was prescribed Normison to help him sleep.
Dr Ngo's notes of his consultations with the offender were tendered at the trial. They show that over an 18 month period from 27 March 2015 until late 2016 the offender saw Dr Ngo 32 times. Those notes record that the offender became unhappy with the marriage in 2015. Other medical records noted that the couple had ceased any sexual relationship. The offender told Dr Ngo that he thought his wife was having an affair.
In April 2015, the offender ended his friendship with Mr Khan after confronting him and accusing him of causing problems in his marriage. Despite this, Ms Elahi and Mr Khan remained friends. I am satisfied that from that time Ms Elahi was unhappy in her marriage but found it difficult to leave. She told friends that the offender made that difficult by losing his temper, threatening to kill himself or otherwise exhibiting what she confided in a friend was "controlling" behaviour.
The offender told friends during this time that Ms Elahi no longer wanted to live with him. While they remained living together, they stopped attending social situations as a couple.
On 13 April 2015, the offender 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.
On 18 April 2015, police attended the couple's unit after the offender had called an ambulance. He told police that they had an argument about their marital issues, and he called an ambulance when Ms Elahi become upset. Ms Elahi told police that she had been trying to get the offender to see a psychologist about his mental health because she believed he needed help.
On 22 April 2015, the offender again attended Dr Ngo about his marital issues. Dr Ngo discussed a mental health program with counselling support. The offender preferred to wait as his father-in-law was due to arrive in Australia to help the couple resolve their marital problems.
On 25 May 2015, the offender and his father-in-law saw Dr Ngo. The offender said he needed help for his mental state and was referred for a Mental Health Treatment Plan. That is the last entry recorded by Dr Ngo regarding any complaints by the offender about his mental health as opposed to his physical health. The offender did not subsequently pursue any mental health plan.
Between April and July 2015, Ms Elahi also saw Dr Ngo, in whom she confided that she was experiencing marriage problems.
Ms Elahi also complained to friends about the offender's controlling behaviour. She told them he insisted that she go to bed at the same time he did, and Ms Elahi had to tell him of her whereabouts at all times. He used the location feature of a computer game to ascertain where she was at any time. He called her at work with such frequency that it interfered with her work. The couple remained together in this unhappy state throughout 2015 and 2016. There is no complaint by the offender to Dr Ngo about the marriage during this period.
In July 2016, the offender broke his hand by punching a wall in the course of an argument with Ms Elahi. Although this was not violence inflicted upon Ms Elahi, it is a further example of the controlling behaviour Ms Elahi was complaining of. On 18 July 2016, the offender visited Dr Ngo with Ms Elahi seeking pain medication for the two fractured bones caused by this outburst.
The offender subsequently underwent surgery for the removal of a nasal tumour/polyp. On 30 August 2016, the offender and Ms Elahi attended Dr Ngo's surgery for a post-operative review. During his recovery, Ms Elahi took time off work to care for him. The offender would later describe this to police as the "golden period" because Ms Elahi looked after him after the operation.
On 26 September 2016, Mr Khan's wife contacted the offender. Her brother-in-law had been fixing Mr Khan's computer and found a "love letter" from Ms Elahi to Mr Khan. Mr Khan denied knowing what the letter was about so his wife telephoned the offender. She told him the letter proved that Ms Elahi and Mr Khan were having an affair. She then forwarded the offender a copy of the letter. He recognised the writing to be Ms Elahi's.
Later that day, Ms Elahi contacted police after a telephone conversation with the offender. The offender said things to her which caused her to believe that he would harm or kill himself. Police again attended the couple's home, where they found the offender standing within the front doorway, upset and emotionally distraught. He told police that his wife was having an affair and that he did not know what to do about it. He assured police and paramedics that he would not harm himself.
Police conducted various checks and found out that the offender did not have a mental health history. The Mental Health Team was called and attended but decided not to schedule him. The offender agreed that he required professional help and told them he would seek assistance from his doctor. He did not make any further complaints to his doctor despite visiting him again on numerous occasions. He did, however, subsequently seek counselling from Relationships Australia. Ms Elahi did not go with him to this counselling.
At about this time, Ms Elahi communicated with her friend Ms Sayed through social media. She told her that she wished to divorce the offender. She referred to his controlling behaviour, including his physical acts such as punching a wall and threatening to commit suicide. Ms Elahi expressed to Ms Sayed that it was like the offender was blackmailing her. I am satisfied that Ms Elahi began planning to leave, and divorce, the offender by at least 13 October 2016, when she contacted Ms Sayed about renting a room from her.
Ms Sayed gave evidence that Ms Elahi told her that when she advised the offender that she wished to end the relationship the offender would become aggressive, scream and would fight with her.
The offender sought relationship counselling from Relationship Australia alone in late 2016 before he left for Bangladesh. He was advised that the couple should take a break from the relationship. That was advice on which the offender acted in November with Ms Elahi's agreement because he knew by then she was keen on a divorce. The offender travelled back to Bangladesh to spend time with family and to give Ms Elahi time to decide what she wanted to do.
During this time, the offender would view Ms Elahi's Facebook activity, including what posts she was commenting on. Ms Elahi ultimately restricted his ability to access her Facebook account. He found this out when he heard about a post she had made that he could not see. The Facebook messages between the offender and Ms Elahi between 17 January 2017 to 17 February 2017 provide examples of the offender's repeated requests for information from Ms Elahi regarding the minutiae of her life: what she was eating, what time she was going to bed, and what time she was going to work.
Ms Elahi advised the offender during the time he was in Bangladesh that her feelings had not changed: she still intended to separate from him and file the relevant paperwork to divorce the offender. She reiterated that they had no future together. The offender later told police that he told her at that time, "If you want a divorce I can't stop you, but I will try [my] level best to maintain this relationship."
The offender later told police that Ms Elahi asked him why he had posted a photo of the two of them together on his Facebook during their separation period, to which the offender replied, "We are still married and I have a right [to] post my wife and me in the same photo". [5]
Also, during the time that the offender was in Bangladesh he undertook a number of Internet searches. A copy of the subjects he searched were tendered as an exhibit at the trial. They included questions such as, how to punish an unfaithful wife, and how to punish an unfaithful wife in Islam. In total over 30 such searches were undertaken.
The offender returned to Australia on 14 February 2017. He had proposed to Ms Elahi on Valentine's Day, and the date was significant to him for that reason. I am satisfied that by that time he could have had no doubt that Ms Elahi still wanted a divorce.
Mr Khan gave evidence that he had lunch with Ms Elahi on 14 February 2017. A CCTV still of them kissing each other goodbye after that lunch was tendered at trial. They both look happy with each other and in love. It was the last time Mr Khan would ever see Ms Elahi.
On 16 February 2017, the offender 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.
On 17 February 2017, Ms Elahi wrote in her diary "If I die in 2017, that cannot be a natural death. Please investigate my death."
On 18 February 2017, the offender told another friend that Ms Elahi wanted a divorce. He said he was not going to help her, and he proposed to try and work on the marriage. At about 1:00 pm that day, a work colleague telephoned the offender to see if he could do the night shift on 19 February 2017. The offender sounded upset and spoke in a soft voice.
That same day, Ms Elahi met with her friend Ms Sayed for breakfast and spent much of the day with her. Ms Elahi was upset and stressed about her ongoing issues with the offender 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 that the letter had been found by his wife, who had shown it to the offender. The two women discussed moving in together and her friend agreed to assist Ms Elahi putting together the paperwork for the divorce.
Ms Elahi went back to the unit she still shared with the offender. At around 8pm, a neighbour heard a thud sound from their unit.
On the offender's account, he became angry with Ms Elahi that night. The reasons have differed in the accounts he told police and psychiatrists. After he became angry with her, he demanded her phone. He then snatched it from her and dragged her into the bedroom where he demanded that she tell him the truth about what was happening with Mr Khan. During this time, Ms Elahi suffered a small injury near her ear which bled and which she wiped with tissues the offender gave her (a bloodied tissue was later located in the bin by police).
The offender told her that she was lying about the relationship with Mr Khan and that the phone would reveal if there was still an ongoing affair. Ms Elahi said she was not 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 proving that I will go away." He then pulled her back into the bedroom.
The two of them sat on the corner of the bed. 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.
The offender reviewed the messages on the phone. They showed ongoing contact between Mr Khan and Ms Elahi within recent days, some of which were of a sexualised nature. After seeing those messages, the offender picked up the knife and stabbed Ms Elahi repeatedly, while she was begging for forgiveness.
The offender inflicted 14 stab wounds to Ms Elahi. This included a horizontal stab wound on her right neck, four stab wounds on her right upper back, four stab wounds on her mid to lower back, and one gaping wound on her right upper chest. There was a gaping stab wound through her right cheek and the tip of the knife was found lodged between two teeth. There was also an incised wound at the base of her right thumb consistent with a defensive injury. There were several blunt force injuries on her head, neck, torso and limbs.
After this vicious attack the offender left Ms Elahi on the bed and retrieved his cigarettes. He smoked several cigarettes over about 10 minutes. He did not attempt to render her any first aid. At 9:36 pm, he updated his Facebook status to read "THE END" and at 9:46 pm, he changed the profile picture on Ms Elahi's Facebook account to a photo of the two of them together, smiling. He had to use her thumb to do so. This is of some significance given that she had previously blocked him from her Facebook account and had told him he could not put post happy photos of them on social media.
It was not until 9:48 pm that the offender called triple-0. He told the operator he had killed his wife, that she was dead, and that an ambulance was not required.
When police arrived, they found the offender 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 dead at 10:53 pm. The cause of Ms Elahi's death was multiple stab wounds to the chest and abdomen.

Disputed facts

There were two facts found by Schmidt J on sentence that were disputed by the offender as follows.

Did the offender deliberately wait until Ms Elahi was dead before he called police?

It was submitted on behalf of the offender that I would not be satisfied beyond reasonable doubt that the offender deliberately waited until Ms Elahi was dead before calling police. The offender accepted the evidence that she did not die immediately, that she had pleaded with him, that he failed to render any assistance to her, that he failed to call an ambulance and instead smoked cigarettes and made Facebook entries. It was accepted that he knew she was dead by the time he called police (evidenced by him telling them that an ambulance would not be required). The offender also accepted that at the time of the stabbing he intended to kill Ms Elahi.
The only area of dispute was whether he intentionally waited to make sure she was dead, or whether that is just what happened.
Given the admissions, the timing, the nature of the Facebook entries, and the objective evidence about what he did, I am satisfied beyond reasonable doubt that the offender waited for Ms Elahi to be dead before calling police.

Did the offender still have hope the marriage could be saved when he returned from Bangladesh?

Schmidt J was not satisfied that the offender still had hope that the marriage would continue when he returned from Bangladesh. It was submitted that I would find that he did. It seems to me that this would not be a mitigating factor in any event. The Crown case on sentence was that I would find that the offender wanted to control Ms Elahi. She had told him that she intended to separate from him and file the relevant paperwork to divorce him, reiterating that they had no future together.
If the offender did still have hope, it was contrary to every indication being given to him by Ms Elahi and was because he was ignoring her wishes. It is consistent with him not letting her get on with her life and instead trapping her in a clearly miserable marriage. If he did have hope, that is not a mitigating factor.

The offender's mental health

In order to establish the partial defence of substantial impairment in s 23A the offender had to establish three matters on the balance of probabilities at trial: 1. That at the time of committing the act he was subject to an abnormality of the mind arising from an underlying condition as defined in s 23A(8) of the Act; 2. That at the time of the stabbing his abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a), namely, to understand events, judge whether his actions were right or wrong or to control himself; and 3. That the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

The first limb: abnormality of mind

The experts agreed as to the first of these three limbs; the offender's adjustment disorder was an abnormality of the mind arising from an underlying condition.
It was common ground among the three experts who gave evidence at trial that the offender was suffering from that adjustment disorder at the time he killed his wife. They disagreed however as to the impact of that disorder on the offender at that time.
Dr Martin described the nature of an adjustment disorder in these terms: "A bad thing happens in a person's life. As a result of that thing, such as a relationship breakup or bad news or getting an illness, they develop depressive or anxious symptoms, which causes some distress or some level of impairment."
Dr Martin went on to describe it as a greater than expected reaction to an identifiable stress.
Dr Nielssen described the offender's adjustment disorder as chronic (in that it lasted more than six months). He described it as a clinically significant response to an adverse life event manifesting in depression. In this case, the adverse life event was the breakdown of his marriage.
Dr Allnutt (who did not examine the offender until five years after the killing), initially thought the offender could be diagnosed with a persistent depressive disorder but given that a chronic adjustment disorder was a differential diagnosis and that the other experts had "computed the chronic adjustment disorder as a depressed and anxious mood" he accepted that as the diagnosis. His evidence was that an adjustment disorder is a reaction to an external stressor that can result in a constellation of symptoms that move into the area of depression or post‑traumatic stress. They generally last for less than six months after the stressor, but they can persist for longer than six months.

The second limb: was he substantially impaired?

By its verdict the jury either was not satisfied beyond reasonable doubt of both the second and third limbs or, were satisfied of the second limb but not the third. To put that another way, either they were satisfied that the offender was substantially impaired in at least one of three capacities but were not satisfied that the impairment was so substantial as to warrant liability being reduced to manslaughter; or they were not satisfied on the balance of probabilities that the offender was substantially impaired in one of those three capacities.
The offender sought a finding by me for the purposes of sentencing that the offender was substantially impaired at the relevant time as per the second limb of this test. The Crown submitted that I would not make that finding. This is a mitigating factor that I must be satisfied of on the balance of probabilities. It is my role on sentence to find facts consistent with the jury verdict. It is not my role to try to ascertain the thought processes of the jury. [6] In order to resolve this question, it is necessary to have regard to the evidence at trial, including that of the three psychiatrists who gave evidence.
The relevant evidence on this issue includes from Ms Elahi and the offender's friends and work colleagues, Dr Ngo's notes, the internet searches, the Facebook entries, what Ms Elahi told her friends, Ms Elahi's diary entries, police evidence as to previous visits by them, what the offender told police, the nature of the injuries, the differing accounts the offender told the psychiatrists and the expert opinions of the psychiatrists. I have considered all of that material, much of which I have already summarised.
I am satisfied that from 2015 the marriage between the offender and Ms Elahi was an unhappy one. At a time when she was already unhappy, she started confiding in Mr Khan about this and the two of them fell in love. She clearly found it difficult to extricate herself from the marriage as whenever she did, the offender reacted angrily and on at least one occasion threatened to kill himself. She was no doubt scared of what he might do to her if she left him. This is clear from her diary note made the day before she died. It is unsurprising in these circumstances that she did not tell the offender that she still had feelings for Mr Khan.
If Ms Elahi's brutal death is considered in the context of her diary note it was inevitable that when she did try to leave the offender, he would kill her. That is a different categorisation to the murder being planned but it seems to me that the lack of planning in that context does not necessarily make it less serious. The offender's jealousy and unwillingness to let his wife go culminated in him finally killing her.
If the background to the relationship is considered from Ms Elahi's perspective, then this killing can be characterised as a case where a woman was being controlled by a man who finally kills her when he realises he cannot have her. But that is not the narrative which was provided to Dr Nielssen and Dr Allnutt. The narrative provided to them was that Ms Elahi had been unfaithful, had lied about it, that there was hope that the marriage would continue, but when Ms Elahi's deception was revealed it was too much for the offender who snapped when confronted with the infidelity. That is why the assumptions upon which the psychiatrists based their opinions were crucial to the partial defence and why I am unable to accept much of the expert evidence of Dr Nielssen and Dr Allnutt regarding the severity of the offender's symptoms. Before I go through what their assumptions were, I will briefly set out the opinions of all three experts.

Dr Adam Martin

Dr Martin gave evidence that although the offender had an adjustment disorder it did not substantially impair any of the relevant three capacities. His evidence was that it seemed likely the offender was low in mood and anxious and distressed in the lead up to the killing. But he was not being treated by his general practitioner. Nor was he being actively pursued by his general practitioner to make sure he was seeing a psychologist. Nor was he taking any antidepressants in the period leading up to the killing. Dr Martin referred to Dr Ngo's notes in 2015 and the fact that the offender told Dr Ngo that he was feeling better than he was without active treatment, and Dr Martin said this: "… that to me speaks to a situation where things have settled down at home, for instance, or somehow he's coping better with the distress, and that's less likely to be a very severe mental illness, in my view, of a biological nature requiring assertive psychiatric treatment with medications and hospitalisation. Speaks more to a person who is in distress, understandably, whose mood is changing up and down, but he's still able to go to work."
Dr Martin also stated that, generally speaking, a person who is very severely depressed would be less likely to be planning business ventures (there was evidence the offender was doing this whilst in Bangladesh). It was Dr Martin's opinion having interviewed the offender and reviewed all the documentation, that the offender may have had some depressive symptoms in the years before 18 February 2017, but the rational explanation for the offending is that he was enraged by finding evidence of an affair on his wife's phone, which was forced at knife point "and that he subsequently stabbed her repeatedly out of jealously and perceived humiliation".
Dr Martin's evidence was, that "he may have had significant unhappiness and associated symptoms potentially consistent with an adjustment disorder and that while this may have made him over sensitive, he was in control of his actions and was functioning reasonably well up to the point of the alleged offending". Dr Martin did not regard the offender as being significantly impaired by his depression and/or adjustment disorder. His opinion was that there was very limited objective evidence (meaning evidence not coming and sourced from the offender) demonstrating that he was very severely impaired by mental illness up to the time of the alleged offending.
A joint report of Dr Martin and Dr Nielssen was prepared for Schmidt J and tendered at the second trial. It noted this: "Dr Martin was of the opinion that while being depressed would make a person more prone to over-reacting and could impact on a person's ability to control their behaviour, and could skew their sense of right and wrong, that the ultimate issue of whether Mr Ahmed was substantially impaired by chronic adjustment disorder to the point that murder should be reduced to manslaughter was a matter for the court."
Mr Woods relied on this aspect of Dr Martin's report at the proceedings on sentence in support of a submission that I would find that the offender was substantially impaired (within the meaning of the second limb) at the time of the killing. The difficulty with this submission is that when Dr Martin's evidence is considered as a whole, it did not support such a finding.

Dr Olav Nielssen

Dr Nielssen was of the view that the offender's adjustment disorder substantially impaired his capacity to control himself and understand events around him. In his report dated 9 May 2018 tendered at trial he concluded the following: "… I believe he would be able to raise the partial defence of substantial impairment by abnormality of mind. He had an underlying condition, within the meaning of section 23A of the Crimes Act, in the form of a pre-existing depressive illness following his wife's announcement that she wanted to end the marriage, and made worse on 26 September 2016 by the discovery that his wife was having an affair with his friend. The offence itself took place during an acute exacerbation of his condition triggered by the discovery of intimate text messages when he had believed the affair was over and that he was returning to Australia to resume the marriage. His abnormal state of mind affected his perception of events, as he described feeling that his wife and friend were mocking him and wanting to provoke him to commit suicide, and also his capacity for self-control, which is apparent in the offence itself." (Emphasis added.)
Dr Nielssen acknowledged under cross-examination that an assessment of whether the offender lost his temper or whether he acted due to an underlying medical condition was a "retrospective hypothesis". He based his opinion on the offender's version of what Ms Elahi was doing in the lead up to her death. The nub of his expert opinion is that the offender was suffering from an adjustment disorder caused by his wife's "infidelity" and when confronted by text messages between Ms Elahi and Mr Khan his ability to control himself was impaired.

Dr Stephen Allnutt

Dr Allnutt's opinion was summarised in his report dated 29 August 2022 as follows: "If a person develops the trauma and stress related conditions such as an adjustment disorder in response to a stressor (in this case infidelity) it would be reasonable to conclude that the person would be psychologically and emotionally vulnerable to loss of control and experiencing cues that associated with the causal stressor. However, this can also occur in the absence of a chronic adjustment disorder, in a person of normal fortitude, who has a personality trait that affords a vulnerability to that stressor. But in principle, I am of the view that if a person has an adjustment disorder that person is made more vulnerable. … I would regard his underlying condition as having contributed to making him vulnerable to reacting in an aggressive manner, giving into feelings of humiliation, anger and/or jealousy, and losing control, as his underlying condition was directly related to the circumstances of the offending. If this formulation is accepted by the court and is factually determined by the adjudicator that he lost control, then in my view he has a defence of substantial impairment."
Dr Allnutt's evidence was that it was reasonable to conclude that the offender would be more prone to overreact emotionally to a stressor which related to infidelity or marital issues because of his adjustment disorder.

The assumptions upon which the expert opinions were based

The opinions of all three psychiatrists were based on accounts given to them by the offender. The difficulty is that the offender did not provide a consistent, or full account to all of them.
On matters relevant to understanding the relationship between the offender and Ms Elahi, the offender did not tell the doctors about the searches he made in Bangladesh about how to punish an unfaithful wife. Nor did he tell Dr Nielssen or Dr Allnutt that, while in Bangladesh, he constantly exchanged messages with Ms Elahi, nor that during those conversations Ms Elahi told him that she wanted a divorce and was making arrangements in relation to filing paperwork.
The offender did not tell Dr Nielssen that he had told his friends that Ms Elahi was seeking a divorce. Nor was Dr Allnutt aware that the offender on his return had told friends and colleagues that his wife was still seeking a divorce. Dr Allnutt's evidence proceeded on the basis that it would have been a shock when faced with the text messages but that overlooked the evidence that Ms Elahi had been telling him she wanted a divorce for some time, and he simply would not accept it.
The offender did not tell Dr Allnutt or Dr Nielssen that he would contact Ms Elahi frequently, including numerous texts when she was out with friends and also when she was at work. They were unaware of the controlling behaviour about which evidence was given at trial. Nor did the offender tell Dr Nielssen that they had had arguments about the deceased wanting to divorce him and that he had become aggressive and yelled at her during those arguments.
The opinions of Drs Allnutt and Nielssen were based on the marriage being one in which Ms Elahi was unfaithful, but the offender forgave her and wanted the marriage to continue. They were not based on a narrative of the true state of the marriage which was that Ms Elahi had been trying to leave him and that he would not let her. Nor were they made aware that she was scared of him and feared what he might do if she did leave him.
As for whether he was exhibiting symptoms of depression the offender did not tell Dr Nielssen that he had been assessed by the Mental Health Team on 26 September 2016 and found not to be a risk to himself or others. Nor did Dr Nielssen know of this fact at all until his cross-examination. The offender told Dr Nielssen and Dr Allnutt that he was missing work due to his marital problems. He did not tell either of them that in fact his work commitments had changed due to the surgery to his hand. Dr Allnutt in fact agreed that one of the symptoms that he had regard to for his diagnosis was that the offender was not showing up to work due to his marital problems. He had (incorrectly) attributed any changes in work to his mental issues.
Dr Allnutt accepted that although the offender told him he was having trouble sleeping in the period prior to the killing, Dr Ngo's medical notes showed that no complaint was made to his doctor about this after 2015. Dr Allnutt said that this did not change his opinion about the offender's symptoms. As for the fact that the offender was not complaining of any depressive or other symptoms to his doctor who he was seeing regularly, Dr Allnutt's evidence was that you cannot draw conclusions about severity based on whether a person with a mental illness seeks help or whether they are on medication.
As for the circumstances of the killing itself, the offender did not tell either Dr Martin or Dr Nielssen about updating his and Ms Elahi's Facebook pages after he killed her, although he told Dr Allnutt (who assessed him five years later and after the first trial). The offender told Dr Martin and Dr Allnutt that he had used the deceased's finger to open her phone to change the Facebook photo, but he told Dr Nielssen that he had opened her phone with her finger to call triple-0 to get help for her (which was false).
In his account of what occurred that night, the offender did not tell Dr Nielssen that he had threatened to kill the deceased before he saw the texts. Dr Nielssen accepted that he had included in his report that the offender told him they argued for one or two hours, and he was angry prior to seeing the messages. This is significant given his expert opinion that the offender became angry and lost control only when confronted with the texts.
Overall, Dr Nielssen accepted that the offender had told his work colleagues that his wife was getting a divorce. He also accepted that when he returned to Australia on 14 February, the offender was able to take part in normal domestic life, including cooking a meal, that he made no complaints to Relationships Australia about not being able to sleep and that he sounded calm in the triple-0 call. Dr Nielssen also accepted that punching the gyprock wall during the argument with his wife indicated some prior aggression.
Despite all of the factual challenges put to Dr Nielssen and Dr Allnutt in cross-examination neither of them allowed for the possibility that their opinions might change. Furthermore, Dr Allnutt's evidence was based on a version provided five years afterwards the details of which had changed over time. For all of these reasons, to the extent that the opinions of Dr Allnutt and Dr Nielssen were based on self-serving accounts that differed from the objective evidence I am unable to accept them. I do accept the evidence of Dr Martin. His opinion was consistent with the objective evidence and the assumptions upon which his opinion was based were more reliable.

Conclusion

The conclusion as to whether the offender was substantially impaired at the time of the killing within the second limb is to be viewed in the context of all of the evidence, not just that of the experts. I am satisfied that the offender was understandably depressed and anxious that his marriage was over. It is a normal response to a stressor such as a marriage breakdown to experience feelings of depression, low mood, grief, anxiety, humiliation and anger. I accept that in the offender's case those feelings worsened and resulted in an adjustment disorder. But I am not satisfied on the balance of probabilities that at the time he killed his wife he was substantially impaired in either his ability to understand events, judge whether his actions were right or wrong or to control himself. Rather, I am satisfied that at a time when he was depressed about the end of his marriage he flew into a jealous rage about the inevitability of his wife's departure and her affection for another man.
I accept the evidence of the defence experts that, generally, just because someone has not been complaining of symptoms does not mean they are not depressed. I also accept that men may be less likely than women to seek such help. But those generalised assertions do not apply in this case. The offender saw Dr Ngo 32 times over two years for a range of reasons. He had no difficulty complaining about his wife to Dr Ngo in 2015 but there were no complaints about her and the marriage after 2015.
I have had regard to all of the evidence including: how the offender killed his wife; how calm he was afterwards; the fact that he was working and had travelled and was planning a business venture; that he had not complained to Dr Ngo of any depressive symptoms recently; that he gave conflicting accounts to the experts some of which lessened his culpability and impliedly blamed the deceased; the Facebook entries; the spitefulness involved in the offender changing Ms Elahi's Facebook profile with a happy photo of them both after he killed her where she had previously expressly told him not to do so; and the fact that he had previously searched out how to punish her. When the evidence is viewed as a whole, I am satisfied that the offender was a jealous and humiliated husband enraged that his wife was leaving him and that things were not going the way he wanted them to. The offender was already enraged before he saw the text messages and he already had a knife with him by that time.

Objective seriousness

It was submitted on behalf of the offender that I would find the objective seriousness to be below the mid range, whereas the Crown submitted that I would find it to be above mid range. It seems to me that this was a somewhat arid debate given that it was accepted by counsel that there is no obligation to plot the objective seriousness of an offence on such a range.
As Yehia J recently observed in DH v R [2022] NSWCCA 200 at [60], the requirement to make a finding as to objective seriousness is a requirement to identify all the factors relevant to the objective seriousness of the offence. But this does not require a sentencing judge to nominate where on the scale of seriousness an offence lies by reference to a notional mid point. Doing so adds nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.
Similarly, Button J (with whom Meagher JA and Wilson J agreed) recently noted in KM v R [2023] NSWCCA 10 at [52] that "fine distinctions based on artificial segmentation of a spectrum are… unnecessary; apt to confuse…; and liable to give rise to appeal grounds that do not advance the interests of justice." While it remains incumbent upon sentencing judges to provide a concise and clear assessment of the objective seriousness of offences, and the evidence on which that assessment is based, "such an assessment should be in terms readily understood by laypersons" in easily understood English adjectives. [7]
It was common ground that I would sentence the offender on the basis that he intended to kill his wife rather than simply inflict grievous bodily harm on her. An offence involving an intention to kill is ordinarily more serious.
I have already recounted the circumstances of the killing in detail above, including my findings in relation to the extent of impairment. The offender attacked his defenceless and physically much smaller wife in a brutal, sustained attack with a deadly weapon. She begged for forgiveness. He did not render her any assistance. He delayed calling triple-0. He had made internet searches as to how to punish an adulterous wife before he returned to Australia from Bangladesh and killed his wife four days after his return.
The offence was not premeditated. But it seems to me that the deceased feared for her life as to what the offender would do to her if she left him. It was most likely for that reason that she found it so difficult to leave him. Just because the murder was not planned, it is still very serious. The deceased feared that the offender would react badly and kill her when he realised he could not prevent her from leaving and that is exactly what happened.
The fact that the offender made full admissions which have assisted the prosecution militates in his favour. Many of those admissions were certainly against his interest and relied upon by the prosecution in urging a finding that this was objectively a very serious murder.
As the court observed in DS v R; DM v R [8] , although an offender's mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness, it would only affect objective seriousness if there was a causal connection between the impairment and the offence and it would depend on the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between them. An example of this would be where the mental impairment was effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. But that is not this case. It is for that reason that I have not have regard to the offender's adjustment disorder in my assessment of objective seriousness.
Although I am not satisfied that has any bearing on the objective seriousness of the offence, it does have some impact on the assessment of his moral culpability.
Overall, I consider that this was a grave example of murder. A defenceless woman was killed in her own home by someone who purported to love her for the simple reason that she had fallen in love with someone else and wanted to leave the marriage.

Moral culpability

It was submitted that the offender's moral culpability was reduced due to his adjustment disorder. I have already set out the details of that disorder.
I have given consideration as to whether I would reduce the offender's moral culpability due to his adjustment disorder. The offender killed his wife who wanted to leave him. The adjustment disorder he had was not preventing him from working or socialising. He told friends she was divorcing him, yet he still would not let her go. Despite this, all three experts agreed that he did have an adjustment disorder in the circumstance described. Accordingly, I am prepared to accept that the offender's adjustment disorder reduces his moral culpability to some extent.

Subjective case

The proceedings on sentence were conducted on 10 February 2023. The offender did not give evidence but relied upon the accounts of his background contained in the psychiatric reports tendered on sentence, namely Dr Olav Nielssen dated 9 May 2018, the Joint Opinion of Dr Olav Nielssen and Dr Adam Martin dated 28 March 2019, and the report of Dr Stephen Allnutt dated 29 August 2022.
The offender was born on 23 November 1983 in rural Bangladesh. His parents separated when he was six years old. He lived with his grandparents until moving to the city to live with his father and stepmother. He was educated until Year 12 in Bangladesh. The rest of his personal history has already been recounted. He was always employed. He has no connections in Australia beyond his life in prison and the legal proceedings.
The offender wrote a letter to the court dated 2 February 2023, in which he wrote that he keeps himself busy and motivated in jail. He is the head of the cafeteria at the Macquarie Correctional Centre and described cooking and hospitality as his passion. He has no jail charges and was recognised as a trusted inmate at the Lithgow Correctional Centre. I accept that he has been an exemplary inmate.

Criminal history

The offender has no history of criminal behaviour or violence, which is a mitigating factor as set out in s 21A(3) of the Sentencing Act.

Remorse

The offender called triple-0 shortly after the offence and made admissions to killing his wife. He also participated in a recorded police interview that night. This is a subjective mitigating factor as set out in s 21A(3)(m) of the Sentencing Act.
Although he did not plead guilty to murder (and thus is not entitled to any specified discount on sentence), his admissions significantly shortened the trial, and I propose to ameliorate the sentence on that basis.
Section 21A(3)(i) of the Sentencing Act provides that remorse can be taken into account as a mitigating factor but only if the offender has provided evidence that he has accepted responsibility for his actions and has acknowledged any injury or loss, or damage caused by his actions or made reparation for such injury loss or damage. In his letter dated 2 February 2023, the offender stated the following: "I killed my wife. By killing her, I took away someone's daughter, sister, friend, cousin and colleague. I have done something which is unforgivable. I will serve my sentence in this world and as a man of faith, I will no doubt be punished in the hereafter for what I have done. There is no excuse or justification for taking someone's life in the way I did. I never denied taking Fariha's life. I called the Police myself because that is what needed to be done. … there is no winner in this case. I am going to be in jail for a very long time and everyone has lost Fariha forever. Fariha was the first love of my life, and she will be the last one. Not a day goes by that I don't think about her, our memories and the night that I killed her. The thought of the fact that I killed Fariha is something that I have to live with for the rest of my life, even after my jail sentence. I am sorry to Fariha's family. I am sorry to Fariha's friends. I am sorry to anyone that knew or was touched by Fariha. I am sorry to God for taking away one of His beautiful creations. As much as I want, there is nothing I can do or way to bring Fariha back."
The Crown submitted that the letter militates any genuine remorse expressed by him. It was submitted that the initial sentence shows that he views the deceased only through the prism of her relationship to him and the expressions about the impact of her loss on others are superficial. The remainder of the letter focuses on the offender and his family.
Mr Woods submitted that the letter includes expressions of remorse for his actions and shows that he has an awareness of the consequences he must face.
I have considered the letter. I note that English is the offender's second language and there is no suggestion he got any assistance in writing the letter. It is well established that an offender is not required to give sworn evidence in order to establish remorse. [9] Having considered all of the evidence including his admissions, early acceptance of guilt and the letter itself, I am satisfied that the offender is remorseful within the meaning of the Sentencing Act. I would have regard to that as a further mitigating factor on sentence.
As I recently observed in Pritchard v R [2022] NSWCCA 130 at [102], questions of remorse, rehabilitation and the risk of re-offending are often interconnected. Based on the material before me, I am also satisfied that the offender has good prospects of rehabilitation and is unlikely to re-offend. That material includes his conduct in custody, his lack of criminal history and the fact that his adjustment disorder is now stabilised. The Offender Integrated Management System (OIMS) notes tendered on sentence confirm that his mental health is well managed in custody.

Experience in prison

The offender wrote in his letter that his experience in gaol was made more difficult both by COVID-19 and the fact that he has no family in Australia who can visit or call. He did not make any reference to his experience in custody being made more difficult due to his mental health and I am satisfied that is well managed in custody.
I accept that his experience in custody was made more onerous due to the pandemic and associated lockdowns. He has been in custody since 18 February 2017 and has spent most of his time on remand. This court has proceeded on the basis that prisoners who were incarcerated during much of 2020 and 2021 suffered particular hardship, including isolation, no visitors and frequent lockdowns. I propose to mitigate the sentence I would otherwise impose on account of this.
I have also had regard to the fact that since his successful appeal to the Court of Criminal Appeal, he has once again been on remand as an un-sentenced prisoner. The result of the long procedural history in this matter has led him to spending a longer than usual time as a remand inmate.

Comparable cases

I was provided by the Crown with other cases of domestic violence murders. It was not suggested that any of them were comparable, but they were provided to show the different factors that can be relevant in such offences. I have considered those decisions and do not consider it necessary to go through them all for the purpose of these reasons. Although some patterns emerge, they all differ in significant respects.
The offender relied upon three decisions in particular: R v Haydar (No 4) [2017] NSWSC 615; R v Latu (No 3) [2019] NSWSC 951; and Lechmana v R [2019] NSWCCA 112. I will briefly consider those decisions to highlight the differences and similarities between them and this case.

R v Haydar (No 4) [2017] NSWSC 615

Mr Haydar stabbed his wife to death in a frenzied attack with a knife. He also stabbed their daughter, who tried to intervene, for which he was convicted and sentenced. In relation to the murder, Mr Haydar was sentenced to imprisonment of 22 years with a non-parole period of 16 years and 6 months. As in this case, the fact of the killing was admitted; the only issue at trial was whether the partial defence of substantial impairment was made out.
The findings made in that case were different. Following a judge alone trial, Garling J had concluded that Mr Haydar's depressive disorder had substantially impaired his capacity to control himself when he killed his wife, satisfying the second limb of the s 23A partial defence. Mr Haydar was convicted of murder because the third element was not established. Mr Haydar had a significantly greater degree of impairment than was present in the offender's case and Mr Haydar did not conduct himself after the killing in the same manner the offender did.

R v Latu (No 3) [2019] NSWSC 951

Mr Latu was convicted after a jury trial. He had viciously attacked his partner in her own home, including multiple blunt force blows to her head by the use of his fists on her face, head and body. He had also moved her head against a wall and stomped on her. He called triple-0 shortly after the attack requesting an ambulance saying that his girlfriend had stopped breathing but lied as to his own involvement. He was sentenced to imprisonment of 28 years with a non-parole period of 21 years.
Lonergan J assessed the objective seriousness as well above the mid range of objective seriousness of offending of this type, but her Honour did not find beyond reasonable doubt that Mr Latu intended to kill her. He has assaulted her in the past in a similar way and there had been an escalation of his violent and controlling behaviour in the months leading up to the offence.

R v Lechmana [2010] NSWSC 849; Lechmana v R [2019] NSWCCA 112

Mr Lechmana killed his wife in their shared bedroom by manual strangulation. The trial judge found that it was obvious to him that she was in mortal danger if he did not loosen his grip, yet he persisted.
As with the present case, that offender did not dispute that he had killed his wife but relied upon the partial defence of substantial impairment, which the jury rejected. The jury found him guilty of murder. He was sentenced in 2010 by Latham J in 2010 to 23 years' imprisonment with a non-parole period of 17 years and 3 months. The offender was sentenced on the basis that his depression was not so substantial that it warranted the reduction of the verdict from murder to manslaughter. He too had killed his wife in the context that he could not accept his wife's decision to leave. The offender later appealed against his sentence on the basis of "Muldrock" error. [10]
There are similarities with the present case. That assault was not premeditated. Mr Lechmana was convinced his wife was having an affair with a male work colleague, despite no evidence of an affair. The court, in separate judgments, accepted that his moral culpability was reduced somewhat by the findings the trial judge made that he required treatment for depression, however the depression was not so serious or pervasive that it diminished his moral culpability to a significant extent. Campbell J noted the trial judge's finding that "the offender's violence towards his wife on the night she died was not the act of a man so deep in the grip of depression that he was unable to control himself. It was the act of a man who could see that his wife no longer loved him, that she was outside his authority as her husband… and there was nothing he could do to prevent it."
I have had regard to the principles derived from all of these cases as well as the factors relevant to objective seriousness in each of them. I have found them helpful. But I do not consider that any of them are comparable factually; no two cases are ever truly comparable.

Victim impact statement

The Crown tendered a victim impact statement written by Khondkar Mahbib Elahi, the father of the deceased. Ms Elahi's family all reside in Bangladesh and did not attend the proceedings on sentence. Mr Elahi wrote about memories of his daughter, including their shared love for reading and her favourite foods. He now spends time in her bedroom, weeping silently for his beloved child and hiding himself from her mother. He wrote that his memories of his daughter are overshadowed when he visualises the agony of her last moments while the offender waited for her to die and announced her death on Facebook. He wrote that "Only death will be able to bring the end… wipe our daughter… all her memories… from us."
Section 30E(1) of the Sentencing Act provides that when a victim impact statement is tendered in relation to an offence, the court must consider the statement and may make any comment on the statement that the court considers appropriate. Section 30E(3) of the Sentencing Act provides that a victim impact statement of a family victim may also be taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if the prosecutor applies for this to occur, and the court considers it to be appropriate. The Crown made such an application in this matter and noted the observation of McCallum J in R v Halloun [2014] NSWSC 1705 at [46]: "I would construe the new provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way."
It is clear that the deceased's senseless death has had a significant impact on those who loved him. No sentence that the court might impose could adequately reflect that loss and no sentence could possibly ease the grief of those who were close to her. On behalf the court, I extend my condolences to the family and friends of the deceased for their loss.

Special circumstances

It was submitted on behalf of the offender that I would find special circumstances based on three factors.
Firstly, the offender is a foreign inmate who will do his time more onerously because he does not have the support of friends and family visiting and because he would experience social isolation more acutely.
Secondly, the offender has done his time more onerously because of the COVID-19 pandemic.
Thirdly, the offender did not come to Australia for the purpose of committing crime.
Although it is to be accepted that the decision whether to vary the statutory ratio should not be looked at exclusively from the perspective of the desirability of a longer than usual period on parole, [11] all of the factors relied upon went to that issue except for the aspect pertaining to the COVID-19 pandemic (a factor which has already led me to ameliorate the head sentence). I have considered the submission made on behalf of the offender but am satisfied that the matters advanced on behalf of the offender would be sufficiently addressed by the parole period I propose to impose. Furthermore, when considering whether special circumstances apply in any given case, the proper exercise of judicial discretion is constrained by the need to ensure that the non-parole period reflects, inter alia, the objective gravity of the offence and the need for general deterrence.

Conclusion

It is necessary to give credit for the period the offender has been in custody since his arrest. [12] Accordingly, the sentence will commence on 18 February 2017, the day he went into custody.
As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence. [13] I ask the offender's solicitor to undertake that task on the court's behalf.

Conviction and Sentence

For the offence of murder, Shahab Ahmed is convicted and sentenced to: 1. Imprisonment for a term of 24 years to commence on 18 February 2017 and expire on 17 February 2041. 2. The non-parole period is 18 years' imprisonment to commence on 18 February 2017 and expire on 17 February 2035.

Endnotes

R v Ahmed (No 2) [2019] NSWSC 517.
R v Ahmed (No 3) [2019] NSWSC 625.
Ahmed v R [2021] NSWCCA 280.
R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46.
ERISP Q/A 310, Exhibit W.
R v Isaacs (1997) 41 NSWLR 374
KM v R [2023] NSWCCA 10 at [52].
[2022] NSWCCA 156 at [90].
Butters v R [2010] NSWCCA 1 at [16]-[18].
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534.
Sentencing Act, s 47(3).
Crimes (High Risk Offenders) Act 2006 (NSW), s 25 C.

Amendments 20 February 2023 - Coversheet correction 23 February 2023 - Coversheet and at [142] "2042" amended to "2041" 28 February 2023 - Pinpoint reference change in [97] 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: 28 February 2023

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