R v Azizi [2010] VSC 112

2 The trial was contested, but not on the basis that you were not responsible for the death of your wife, but on the basis that it was either an accident or self-defence. It is necessary to go into, not only your background, but also the background of your relationship with your wife, to fully explain the circumstances of this murder.

3 Both you and your wife were born in Pakistan and were cousins. When you married you married in Afghanistan, you were 29 years of age and your wife was 19 years of age. It was an arranged marriage. You and your wife had five children who were living at the time of her death, being: Behestha, born 21 March 1996 in Afghanistan; Shoaquib, born 21 March 1998 in Tehran, Iran; Mohammed, born on 30 March 2001 in Tehran, Iran; Hamsa, born 11 May 2006 in Australia; and Shaoub, born 27 August 2007 in Australia, when you were living in the marital home in Hampton Park.

4 You and your wife lived in Afghanistan for nearly four years after your marriage. Although there was no evidence of this during the trial, on the plea there was evidence given that you had an elder daughter who was born in Afghanistan who was killed during the fighting in Afghanistan and was one of the reasons that you and your wife fled Afghanistan and became refugees living in Tehran in Iran. You lived in refugee camps in Iran for almost seven years before coming to Australia. Having been accepted to come to Australia as refugees, you and your wife arrived in Australia in June of 2005 and at that stage, had three children still living. You were assisted to find temporary accommodation in Springvale and later you were able to obtain more permanent accommodation in Dandenong where you lived for almost two years. Despite not being employed during that time, you and your wife were able to save and buy a house together in Hampton Park.

5 Evidence was given in the trial by a number of witnesses, referring to the problems that had existed in your marital relationship over the years. Those persons were Katherine McKinnon (a coordinator from the Maternal Health Service), Magitas Suresh (a family violence case worker), Shookria Abid (sister of Marzieh Rahimi) and Monis Khaliqy (interpreter). The evidence of Marzieh's sister, Shookria Abid, related to the relationship over a substantial period of time, indicating that her sister had told her that you had abused her over the period of the marriage, commencing from the first night of the marriage. There was little in the way of specific detail but she indicated that she had spoken to you on a number of occasions and had asked you to be nice and to treat her sister well.

6 Approximately a month before she died, Ms Abid had conversations with her sister in which she told her that her life was very bad and all the things that were happening to her, when she was in Iran, were happening again. I accept that statement to be, relating to the fact of domestic violence being inflicted upon her. It is clear, from the manner in which Shookria Abid gave her evidence, that the language and words used by Afghani women are much kinder and more gentle words, than those commonly used by Australian women. This was consistent with the statements made by Marzieh Rahimi to various workers through interpreters. I also noticed a similar pattern which emerged when you Soltan Azizi, was giving evidence.

7 Marzieh told her sister that, there were occasions when she had been thrown out of the house in the morning and not allowed to come back into the house until night. She told her sister that, you had been beating her and a social worker was coming to the house for a visit and that, you were not very happy about those visits. Ms Abid indicated that she encouraged her sister to give you another chance.

8 Approximately a week before she was killed, Ms Abid gave evidence that she received a phone call from you in the early hours of the morning, in which you were asking her to speak to your wife, that is her sister, you said to Ms Abid that, Marzieh had become too Australian and changed and was saying things such as, she wanted a divorce. Ms Abid said, she told her sister not to go for a divorce and to give you another chance. Marzieh told her sister that, "she did not have to stay with her husband beating her, because in Australia there is a better chance, that in Australia the government would help her, there was a better chance for her". Ms Abid indicated that she encouraged her sister to remain within the marriage.

9 She further gave evidence that three days before her sister was killed, her sister rang her at home in America and gave her a new telephone number, saying it had been changed and that she was very worried that something would happen from Azizi to her.

10 The evidence from the other witnesses, Ms McKinnon, Ms Suresh and Ms Khaliqy all demonstrate that your wife had significant concerns, about the marriage and the relationship and the violence that was demonstrated towards her, by you. She was far from specific as to the violence that had been inflicted upon her, but made it clear that this was a relationship in which she felt abused - physically and emotionally. Ms McKinnon had in fact been talking to her at some length and determined that, in all probability, she was suffering from post-traumatic stress disorder, as a result of her experiences in Afghanistan and in Iran.

11 The witness Ms. McKinnon indicated that it was not until her third visit to the house that your wife began to disclose your treatment of her. Then on 1 November 2007 your wife made two calls to triple 000 in the early hours of the morning seeking police assistance. It is most unfortunate and an indictment on our society that no assistance was forthcoming, as a result of a very disappointing reaction by the telephone operator, to your wife's inability to speak English, in anything other than a broken English manner. The next morning Marzieh contacted Ms McKinnon and although unable to communicate with her in anything other than broken English she made it clear that she needed to speak to her urgently and a phone interpreter was organised. She described your wife as speaking in rushed and emotional tones and indicating through the interpreter that the previous night there had been issues between yourself and her, and that you had been physically violent towards her, that you had hit her on the back when she was trying to get away from you and that, you had threatened that you would kill her. Your wife was extremely distressed and kept asking her why the police had not come. And I must say it is a question that I would pose to this day. She told Ms McKinnon that she had no bruising, this time, and it was then that she was referred to a domestic violence organisation in Casey, where she dealt with Ms Suresh.

12 Things appeared to improve slightly between yourself and your wife and then fall apart again a little, according to her sister, as I have already indicated. It appeared that your wife was trying to maintain and support the marriage, but was unsurprisingly tired and rather worn out. You had not been in employment since coming to Australia in 1995 and had in fact attended English classes right up until the time of your arrest. Your wife had indicated that she wished to attend some English classes and start to meet and mix within the community, but this was prevented by you.

13 In relation to this offending, you gave evidence upon your oath and having seen and heard you, I must say that I do not accept the majority of your evidence as being truthful or correct. The evidence about the improvement in the relationship came from Katherine McKinnon and the interpreter, Monis Khaliqy, in that your wife had told them that you had improved for the better, that you were trying to help her around the house and telling the children to listen to what she said to them and not undermine her. That, unfortunately did not last, as can be seen in the calls to her sister.

14 In your evidence before the court, you told the jury that this was a happy marriage, that you had many relationships with Afghani neighbours in Dandenong, but you said your wife was lonely, but only in that she missed her family in Afghanistan. You told the court that she had significantly changed after the birth of your fifth child. In fact it would have been your sixth. She was screaming, yelling, and you said, violent towards the children. You denied trying to keep her away from other members of the community. You denied physically harming her in any way. You denied in any way undermining her credibility with the children. You denied that she ever complained about your behaviour.

15 You gave evidence that, in fact, your wife became more difficult and had significant mood swings, after she was put on a contraceptive device in terms of an implant in her arm. You said, she became more aggressive, irritable and loud. She was agitated, frustrated, she put on weight, had night sweats and also that she suffered from post-natal depression, telling the jury that five days after the birth of the last child you saw her being teary, lacking sleep, irritable and picky.

16 In respect of what you said occurred on the day your wife was killed, you said you had both been out to the dentists, you had obtained an injection for the child and you were returning home. Upon returning home, you walked into the house and your wife was carrying the new born, Shaoub, and you had Hamsa the 18 month old. Hamsa wanted a drink of milk and was whinging. As soon as you walked into the house, after having been back to get the bag out of the car, you saw your wife lift Hamsa up and throw him onto the floor. You claimed that when you asked her why she was doing that to him, that she said in Australia that is her right, that the mum has the right to do those things, to which you responded to her, "It may be your right but the baby might die".

17 You said that you went to grab the baby and as you were bending down to pick up Hamsa, your wife pushed you over. You landed on the floor on your back and she immediately went to bite you on the left thigh. You said, you were in a lying position on your back, you lifted your head up and punched her in the face once or twice. You said you did not punch her with your fist. Your wife was wearing a scarf - you grabbed both ends of the scarf and pulled. You were in a semi-sitting position, and you described experiencing burning pain to your leg while this was occurring. You were trying to punch her to get her to let go with her teeth. It was after that, that you grabbed the scarf and, very quickly, after you grabbed the scarf and pulled the two ends, she stopped biting you. You said that, you lifted her head off your thigh, called to her, noticed that her face colour had changed colour, you lifted her clothes to listen to her heart, felt her pulse and called the police.

18 You told the jury that you did not intend to kill, or do really serious injury to her, when you pulled upon the scarf. The jury clearly rejected that version, as they brought in a verdict of murder. I agree with the decision of the jury, and find as indicated, that you are not a witness of truth, and I am not prepared to act upon the material you gave under oath. It is my view that you have, over the 14 years of your marriage, subjected your wife to ill-treatment both of an emotional and physical nature. I find that you have treated her as a person lacking in individual rights, and a person that must do what she was told to do by you. I find that upon your wife's move from Dandenong to Hampton Park, and her contact with the Maternal Health Services of the City of Casey she realised that she did not have to remain in a situation of a marriage where she was so desperately unhappy, and she communicated that unhappiness and that situation to you. I do not accept that there was any ill-treatment of the children by your wife, and I consider the calling of your daughter in this case, Behestha Azizi, to be a very sad, sad situation. She is only 13 years of age now, she was 11 when your wife died and she unsurprisingly loves you, you are her father. I have no doubt that she would say anything that you wished her to say to assist you. She is a child, and accordingly, is capable of being manipulated, particularly by the only parent she has left in this world. I will not use that in any way as an aggravating feature, in relation to the sentence I impose upon you, but it is a tragedy that your daughter had to become involved in any way in this trial, relating to the murder of her mother.

19 In relation to the injuries suffered by your wife relating to her neck, there were blunt trauma injuries on the left side consistent with a punch; on the lip there was an injury indicating a separate application of force; there was an area of red discolouration over the right breast which looked substantially like a bruise; on her lower back, a small area of bruising which according to the doctor looked recent; on the left upper arm on the outer part, left forearm in front of the left elbow and in front of the left wrist and the left middle finger there was either bruising or contact abrasions. As well as those injuries, there was the injury that caused her death, being the strangulation, which resulted in petechial haemorrhages which take anything from 15 seconds to a minute to occur but often longer. There was a break in the voice box, in the hyoid bone. The thyroid cartledge had two breaks in it. There was haemorrhage in the strap muscles under the ligature. There were four layers of muscle, and there was bleeding within all of those muscles which demonstrated altogether at least moderate force. The injuries to the left arm, shoulder and hand were consistent with defence injuries. There was extensive facial bruising as well. The amount of force used in respect of the infliction of the injuries upon your wife were, in my view, significant. They were not a matter of a couple of seconds, they were, on the material before me, at least 15 seconds application of force in respect of the scarf, and the other injuries were prior to the use of the scarf. In relation to the bite mark to your thigh, I have no doubt that it was inflicted by your wife in an attempt to try and make you stop strangling her whilst she was on the ground and you were the one above her. It was through your jeans and did not break the skin.

20 Your treatment of your wife over a period of time was not what would be normally acceptable in this country, but you are not here to be punished for that, you are to be punished for your ultimate treatment of your wife, which was that you killed her. It was at the conclusion of some form of domestic altercation, of what nature I cannot say, but the evidence from at least one neighbour, is that the yelling went on for some time. Equally, your wife was yelling, at least as much as you were on that occasion, if not more.

21 It is clear that you were unable to accept that your wife had rights, which rights included the ability to leave you, if that was what she desired, to seek an intervention order against you, if that was what she required and to be supported to live separately and apart, if that was what she required.

22 Your complaint to your sister-in-law was that she was becoming too Australian, that is, she was not a docile and good wife in the terms that you expected her to be. That complaint was made only a matter of days prior to her death. I cannot speculate on what precisely precipitated the argument, but I am satisfied that, your wife did not in any way attack you first, or attack the children, or do anything to cause you to lose control and attack her in the manner in which you have.

23 I do accept that this was not a planned and premeditated murder, but one that arose spontaneously from an argument that occurred on that day. Equally, I accept that you did not attempt to flee from what had occurred, that you informed the police by ringing them, and telling them that, you were in fact responsible for the death of your wife.

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

25 I have to also take into account your personal circumstances. You are as I have stated 46 years of age, having been born in March 1964. You have five children, the eldest of whom is 13, being your daughter, and four sons, the youngest of whom is two, almost three years of age. You currently suffer from sarcoidosis, a matter to which I will refer later.

26 You were born in North Eastern Afghanistan and you were described as being of Tajik ethnicity. You attended school, graduating in 1981. You attended Kabul University from 1982 until the end of 1985, studying economics. You did not complete your degree and you began working, as your counsel described it, doing immigration-type work or clerical duties within the Afghani police. I am not entirely sure at what time period you commenced employment with them but your counsel informed me that in November of 1986, a Dr Naji Bullah was elected president of Afghanistan shortly before the Russian withdrawal. The Russians withdrew in July 1987 and a civil war commenced between the government of Dr Naji Bullah and the Mujahideen.

27 In 1990, whilst you were working for the Afghani police, a high ranking Mujahideen of a family called Safar, being of Pashtun ethnicity, sought to bribe you to obtain a birth certificate for his then 18 year old son, which demonstrated he was in fact 16, so as to avoid conscription into the army, you refused and the boy was conscripted and ultimately was killed fighting in Southern Afghanistan the next year.

28 The government of Bullah fell in 1992 and a warlord took over the province in which you worked. You had returned by that stage to the north eastern province from which you came and you did that after you left university, and it was there that you were working for the police force. When the government fell you ceased working for them When the government fell you ceased working for them. You and Marzieh Rehimi were married in 1993.

29 You believed that the family, particularly the father of the Safar boy, who was killed after he was conscripted, held you personally responsible for his death. You were shot at in 1993, when you were returning from a funeral in the country, and you believed that, that was as a result of the orders of the Safar father.

30 Also in 1993, you were travelling in the back of a utility which overturned and you sustained head injuries and were unconscious for some time. You say that you have ongoing problems in relation to headaches, dizziness, memory problems, sluggishness of thinking and forgetfulness on an ongoing basis from that time until the present. As a result tests were in fact done to ensure whether there was any cognitive deficit or intellectual impairment as a result of such an injury and Dr Lester Walton in a report, stated that you remain of normal intelligence and that his final conclusion was that you have no significant intellectual impairment at all as a result of the accident.

31 In February of 1995, your first born daughter, Zanab, was born and in March of 1996, your eldest surviving child ,Behestha, was born. In 1997, your mother and your sister were killed when a bomb exploded and blew up their house. Your father is still alive and in fact has remarried. Your wife Marzieh Rahimi's father was also killed during the civil war, but her mother remains alive. Equally, one of her brothers was killed by a bomb.

32 In 1998, the house in which you were residing with your wife, Marzieh Rahimi, was attacked by gunmen and your then three year old daughter, Zanab, was killed by gunfire. You, Marzieh and the child ,Behestha, escaped the house and survived.

33 In 1998, the Safar father captured and took control of the town, Pol I Baghlan, and allied himself with the Taliban. One of your brothers was subsequently captured and tortured and on 1 June 1998, you and Marzieh Rahimi together with your child, fled over the northern border into Iran. You resided in Tehran until approximately 2005. You had no papers and you took whatever jobs you could - working as a tea boy and as a cobbler and you and your family lived in alleyways in Tehran. In 2005 you were granted refugee status and shortly after migrated to Australia. You arrived on 20 June 2005. You had two sons whilst living in Tehran.

34 Since you have been in Australia, you have had another two sons, making a total of four sons and one daughter surviving. Your wife clearly was suffering from post-traumatic stress disorder, as Ms McKinnon gave evidence of, and it would be entirely unsurprising to find that you, having gone through the ordeal that you have, which is in many ways the same ordeal as your wife did, also suffer from the same disorder and in fact Dr Walton in his report stated:

It is very much my impression that Mr Azizi has been suffering from longstanding mood disturbance which is entirely consistent with the difficulties he experienced overseas and needless to say his previous anxiety and depression had been markedly aggravated in the aftermath of the death of his spouse and the consequences.

35 Your counsel submitted that there should be a moderating of the sentence that would be otherwise imposed due to the diagnosis by Dr. Walton of a chronic mix of anxiety, depressive disorder with some post-traumatic features and he is concerned that you may be at risk of completed suicide.

36 Shortly after being incarcerated in relation to this matter, you were prescribed antidepressants, but you ceased after a short time, saying that you did not like the side effects and you felt it was not giving you any assistance. You have not been receiving medication from that time.

37 Dr Walton believes you should receive medication and also receive psychiatric treatment. I am unaware of any request that has been made by you for such treatment, but such treatment is certainly available within the prison system, if required.

38 I do not accept that, yours is a situation where your then undiagnosed anxiety condition contributed in any way to the crime of which you have been convicted. Your counsel postulated a theory, but there is no evidence to support such a theory and I find that, it is not a factor that would mitigate your penalty.

39 What is a factor in relation to some mitigation of penalty is the fact that you do not speak English in any substantial form. You have been studying English in Australia between 2005 and the time of this offence in 2008, but despite that you do not speak English. It is difficult to understand why, you have not been able to pick up English a little better than you have in that time, but I do accept that, that is a problem that faces you and communication within the prison will be more difficult. Perhaps being surrounded by people only speaking English, it may well help you improve in respect of your knowledge of the language, but I will sentence you on the basis that you time in custody may be more difficult than the average, because of your inability to communicate with the other prisoners, in general, as well as the staff.

40 You have done a number of courses whilst you have been in prison, although I am not sure of how much benefit they have been due to your very limited English, but it is clear that you are doing all that you can to assist with your rehabilitation. The courses you have done mainly relate to caring for children.

41 In relation to your physical health it was submitted that you have been diagnosed as suffering from Sarcoidosis which, it was submitted, may often lead to lung cancer, and you have lost a significant amount of weight, and may be suffering from some form of anorexia. I have a report from Justice Health dated the 2nd of September 2009 and it appears from that report that you complained upon reception at the MRC in March 2008 of apparent weight loss and problems with a persistent cough. In that report it states:

Mr Azizi spent some time in St. Vincent's in February 2009 for further investigation. The main concerns were to exclude a malignancy or tuberculosis. Tests, including a further CT scan were not conclusive and suggested that the abnormality was, if anything, diminishing. Specific tests looking for tuberculosis were negative. The working diagnosis from that time has been sarcoidosis, which is a relatively minor condition in many people, often requiring no treatment or simply monitoring (perhaps with a regular chest x ray.) Mr Azizi's weight on 5 August 2009 was 54 kgs, which is similar to that on arrival at MRC (55 kg) so the problem does seem to be stable. Mr. Azizi had a chest x ray on 13 august confirming that the appearance is stable or improving."

42 Your counsel indicated that you have demonstrated some remorse in that you attempted to apologise to the family of Marzieh Rehimi, through your discussion with her sister. Having observed her giving evidence and hearing what she had to say I did not, I must say, find that what you were attempting to do was to apologise. The whole tenor of the conversation was to do with the fact that this was an accident, rather than you apologising for what you had done.

43 Equally, your counsel indicated that I should take into account the loss of your wife, or, as he put it, the loss of your best friend. That I certainly shall not do. You gave evidence on oath about the fact that this was a very happy marriage, that Marzieh Rahimi was much loved by you and was your best friend and treated in a loving and caring way, when the evidence demonstrates, quite conclusively, that your wife in fact wanted a divorce, she wanted to separate from you, that there had been threats and some sporadic violence within the marriage. You can not kill someone and then claim their loss as a factor that mitigates your penalty.

44 From the beginning your wife had, as a result of exposure to social workers and other health care professionals in the time leading up to her killing, realised that in Australia she could actually leave you because of your mistreatment of her and her unhappiness. It was shortly after, in terms of a matter of days later, that she was killed. I accept that you did not plan to murder her. By that I mean you did not sit down and hatch a plan to kill Marzieh Rahimi in a particular way on a particular day. But her death clearly resulted because of your belief that, you were entitled to dominate and dictate to your wife, what she could and could not do. Her growing resistance to your dominance must well have angered you, an anger which I noted flashed in this court room when you were giving evidence, and I interrupted you to allow the interpreter to catch up with the translation. Your reaction to my stopping you, was very evident to any observer, and involved you raising your voice, and telling me to be quiet.

45 I do not accept that you have any genuine remorse for the murder of your wife. I do accept that you are distraught at the loss of your children. The loss of your children will impact upon you heavily. They currently see you each week, and that will possibly remain the course. I have no doubt that you are truly bereft without them, as they were very important, and remain very important in your life.

46 This is a case that calls for both general and specific deterrence. It is unfortunately not an uncommon form of murder. It is referred to as a domestic murder. Your counsel submitted that although you ran your trial, it was only on the one issue of intent; you at all times admitting that in fact you killed your wife.

47 Whilst that is true, and I accept to a degree that you have always admitted you killed her, during this trial you made allegations relating to her that said she was in fact a person of violence, that she had physically abused her children, that she had physically assaulted you on this night, and that you were only acting in self-defence. You said that she was the aggressor, which as I say, I did not accept, and clearly the jury did not accept. You went a lot further than disputing your intent. You ran accident and self-defence, as well as lack of intent. All of which required you to give evidence on oath, and, in that evidence, to make different allegations about your wife and her conduct over the years. None of that is consistent with remorse.

48 This is, in my view, accordingly, a very serious form of murder and, equally, I am of the view that specific deterrence is required, although you have no prior convictions, but you do need to understand very clearly that behaviour of this nature is not acceptable nor ever will be acceptable. You are entitled to the benefit of your good character and I do take that into account in determining sentence. Also the difficulties that you will face in terms of isolation within the prison system, the loss of your children and everyday contact with them, your quite tragic background in terms of your later life in Afghanistan, and your terms of being a refugee in Iran. I have to balance however against those, the serious nature of the crime, the need for general and specific deterrence, the need to impose a just and appropriate penalty, together with all of the other factors to which I have already referred.

49 On the one count of murder you are convicted and sentenced to be imprisoned for a period of 22 years. I declare that you are to serve a minimum of 17 years and six months before being eligible for parole.

50 I declare that there have been 871 (eight hundred and seventy one) days served in pre-sentence detention in relation to this matter and such is to be noted in the records of the court.

52 Application for retention of forensic sample 464ZFB(1) is granted.

I certify that this and the 14 preceding pages are a true copy of the reasons for Sentence of Justice King of the Supreme Court of Victoria delivered on 8 April 2010.