R v Darbanou

Supreme Court of NSW|2018-06-08|Before: Lonergan J

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2016/292140

Judgment

On the evening of Wednesday 28 September 2016, Amir Darbanou killed his wife, Nasrin Abek. He did this by stabbing her to death with a large kitchen knife in their home at Potts Point. Nasrin was only 33 years old, a beloved daughter, sister, granddaughter and friend. Her mother Rahimeh Bagheri describes her as an angel and the best daughter you could want. She is described by her brothers as a "beautiful, happy and kind woman", and by her sister as a person with a heart of gold, the "sweetheart of the family".

Agreed facts of the offence

These facts are taken from the agreed statement of facts that was tendered at the sentencing hearing.
The offender and Ms Abek were Iranian nationals who met in Tehran, Iran. They were married in 2004 and arrived together from Indonesia to Darwin in March 2013. They were both placed in immigration detention.
The offender was released from immigration detention on 23 May 2013 and Ms Abek on 13 June 2013 and they flew to Adelaide together and stayed there for about a month, then moved to Sydney.
In the second half of 2013, the offender and Ms Abek moved to a unit at 3/9-11 St Neot Avenue, Potts Point and were both still living there on the day of the murder.
Ms Abek worked as a hairdresser, usually three days a week and occasionally five days a week when the owner was away.
There had been issues of domination and control by the offender over Ms Abek, including that he would demand to be present at all of her medical appointments including intimate consultations.
On 4 September 2016, not long before the murder, Ms Abek told her GP that her husband had hit her many times in the face whilst they were in Iran. The GP did not see any injuries consistent with domestic violence at that time.
Ms Abek was good friends with another employee at the salon, Ms Nasser, and shared with Ms Nasser that she was having difficulties with the offender and told Ms Nasser at the end of August 2016 that she hated him because he followed her everywhere and that the offender had told her that he won't divorce her, and he would "kill her first". She expressed fear to Ms Nasser that the offender was going to kill her one day.
About three weeks prior to her murder, Ms Abek told Ms Nasser that she and the offender had fought and that he had tried to suffocate her by putting his hands around her neck. She defended herself but the offender would not let her leave and he put a mattress against the door and lay against it all night so that she could not leave.
On the day of her death, Ms Abek met Ms Nasser in Chinatown in the city for lunch and shopping. Whilst they were shopping in the city the offender approached them at about 1.14pm and said, "hello, how are you guys, I am around this area and I just came for a walk". He also asked Ms Nasser for her husband's phone number and said he wanted to call him and he then left them.
The two women later parted ways at Town Hall. At 6.01pm, Ms Abek caught a bus from which she exited at 6.12pm, returning to her home at Potts Point at about 6.13pm.
At some time between 6.13pm and 7.14pm, the offender took a large knife and stabbed Ms Abek at least 60 times in the chest, face and upper limbs.
There were fractures to her left temporal bone, her nose and both ulnas, as well as injuries to her jaw bone and her teeth.
One of the most significant injuries included a wound to the left side of the nose which continued through the tongue and the floor of the mouth and into the right side of the neck, terminating at the level of the clavicle. This wound track was at least 20cm in length. There were no less than 17 defensive wounds to Ms Abek's left and right hands.
After he killed Ms Abek, the offender left the unit and placed the knife in a garbage bin at the rear of the premises. He walked to a car park on Elizabeth Bay Road and drove his car out of the car park at about 7.47pm.
Over the ensuing hours, the offender made a number of phone calls. During one call to an Iranian acquaintance at about 2.14am, the offender said, amongst other things, "I killed my wife", "I stabbed her eight times in the heart".
The offender returned to the car park at 5.31am and about this time received a phone call from Ms Abek's father who lived in Iran. A bit later, the stepfather of Ms Abek called and he then phoned Kings Cross Police Station and spoke to Detective Green because the offender had told him that his daughter Ms Abek was dead.
About 6.16am, the offender entered Kings Cross Police Station. He did not tell the police that he had killed his wife. He said that he had not seen her since the day before, and that he left his keys in his house and could not get in, and that she was not answering.
At 6.27am, officers from Kings Cross Police attended the unit with the offender, and found the deceased slumped over a couch covered in blood, with no pulse, and cold to touch.
The offender participated in a voluntary interview under caution with the aid of an interpreter. He provided a false version of his movements for the previous day. He said that he had arrived home late and could not get into the unit and that he went looking for Ms Abek for some hours and could not find her. He also said that Ms Abek has a history of self-harm and that she on occasions would physically attack him and that the last time he had a fight with her was two months ago.
At 1.15pm, the offender was arrested for the murder of Ms Abek and participated in an electronically recorded interview in which he made a number of admissions. He also made a number of assertions that Ms Abek had cheated on him and was disloyal to him.
Counsel for the offender has acknowledged that there was simply no evidence that Ms Abek had engaged in any such conduct, but the offender seemed to believe that she had. This is a subject to which I will return in the context of the psychiatric report of Dr Furst that was tendered on behalf of the offender.

Sentencing principles

The offence of murder is contrary to s 18(1) of the Crimes Act 1900 (NSW) and carries a maximum sentence of life imprisonment and it carries a standard non-parole period of 20 years. A life sentence must be imposed if the level of culpability involved in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) ("the Sentencing Act"). The Crown did not submit a life sentence should be imposed, and although this was a murder of extreme brutality, I have concluded that it does not meet the statutory test for a life sentence.
The maximum penalty and the relevant non-parole period operate as legislative guideposts that inform the exercise of the court's sentencing discretion. [1]
The other features to which I must have regard when determining sentence are the objective gravity of the crime, the relevant principles of sentencing and the personal circumstances of the offender. Clearly, murder is a very serious offence, but where on the continuum of gravity this individual offence falls is dictated by the facts of the crime, and the offender's moral culpability.
When assessing objective seriousness, the intent of the offender at the time of the offence is relevant and an intention to kill is a consideration tending to greater objective seriousness. [2]
Another matter to take into account is that a lack of premeditation may be relevant to the objective seriousness of the offence. [3]
This was an offence committed in the context of a domestic relationship, and these attract particular considerations of general deterrence. As observed by Wilson J of this court in R v Archer [2015] NSWSC 1487 at [174]-[176]: [174] Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. Violent and non-fatal attacks by persons known to the victim are also common. That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders such as Mr Archer. [175] It is incumbent upon this Court to clearly signal the community's intolerance of domestic violence. The High Court has recently given powerful expression to the need for the courts to denounce domestic violence at [55] in Munda v Western Australia [2013] HCA 38, "A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law." (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) [176] This court must be guided by that principle.
An issue has been raised here as to the possibility that the offender may have been suffering from a mental illness in the nature of a delusional disorder at the time of the murder. Considerations relating to mental health may have an impact on sentencing. [4] It may affect the moral culpability of the offender if it contributed to the commission of the offence. It may affect the degree to which the offender is an appropriate person to reflect general deterrence and specific deterrence. It may adversely affect the offender's incarceration and weigh more heavily on the offender, and it also may increase the danger to the community so that there is a need to reflect that in any deterrence considerations.
Whilst a mental disorder of even modest severity may be relevant in sentencing in order to moderate general or specific deterrence, [5] even when there is a causal relationship between the mental illness and the offence, it does not automatically lead to a reduced sentence. [6]

Objective gravity of the offence

The Crown submitted in this case that the murder was an extremely brutal and callous act and showed particular factors that justify it being assessed as above the middle range of objective seriousness for crimes of this kind. Those factors are the large knife used, that Ms Abek was stabbed in excess of 60 times, that it was clearly a violent and brutal death, and there was no chance of survival. The Crown also submitted that it was clear that the offender intended she be killed, the murder occurred in her home, motivated by apparent anger following an argument, as well some ongoing resentment, where there was no justification for such resentment. The Crown submitted there was no action by the deceased which contributed to the events leading to her death.
The Crown submitted, and counsel for the offender conceded, that the offence should be assessed as above the middle range of objective seriousness for offences of this type and I agree with that assessment.
I am satisfied beyond reasonable doubt that the offender intended to kill Ms Abek. He stabbed her at least 60 times in her chest, her face and her upper limbs. At least 22 of these stab wounds occurred in a cluster in the upper chest, predominantly on the left side. Several of these penetrated the chest cavity and perforated the lungs and heart of Ms Abek.

Aggravating and mitigating factors

The law requires that a sentencing judge may not take into account facts adverse to the offender unless they are established beyond reasonable doubt but I may take into account facts favourable to the offender if they are proved on the balance of probabilities.
The Crown submitted that the aggravating factors that I should take into account include that the offence involved the use of a weapon, that it occurred in the home of the victim, and the offence involved gratuitous cruelty.
I accept the first two matters are proved beyond reasonable doubt, however note what was said by the Court of Criminal Appeal in the case of Milat [7] that the fact that a knife was used does not add much to a determination of the objective seriousness of the offence. Also, in respect of the last consideration, I am mindful of what was said by the New South Wales Court of Criminal Appeal in a case called McCulloch: [8] "[30] Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain."
In the circumstances of this case, whilst this murder was violent and appalling, I make no additional finding of gratuitous cruelty as an aggravating factor, as the acts of the offender involved in the murder are intrinsic to my determination of the objective seriousness of the murder itself.
There were mitigating factors submitted on behalf of counsel for the offender. The first is that he entered a plea of guilty at the first opportunity. The second is that there is no previous criminal history since arrival in Australia in 2013. The third is that there is no evidence the offence was planned. The fourth is that the offender is a foreign national with restricted English which may cause additional difficulty during his incarceration.
It was submitted by the Crown and on behalf of the offender that there is some evidence of remorse. On arraignment in September 2017 the offender said when he pleaded guilty that he was "very sorry for that" and when he was interviewed by Dr Furst the psychiatrist in December 2017 he said, "It was my mistake. My rage. It was my fault. It was wrong. It happened. I kill her. This is wrong".
I am not satisfied, however, that those statements are expressions of remorse, even taking into account English is not the offender's first language. They rise no higher than expressions of some insight that it was wrong to murder his wife, and perhaps an acceptance of responsibility for it, not that he was experiencing or expressing remorse for the murder. In other words, it is not acknowledging at all the loss he has caused to Ms Abek's family, and all those people who loved her.
Counsel for the offender submitted that I should take into account that the offender "was at the time, and still is, a man with an untreated delusional disorder" as well as being alcohol dependent.
I do not accept that submission. It proceeds on the assumption that the offender had a mental illness in the form of a delusional condition or disorder at the time of the offending. Dr Furst concluded there was only the possibility of a delusional condition, not that one was probably present. Dr Furst makes it very clear in his report that he does not support a causal connection between the murder and any mental condition suffered by the offender.
Second, I do not accept the untested account of events that the offender gave to Dr Furst to the effect that he was "blind drunk" when he committed the murder and that "if he had not been drunk, he would not have killed her".
There is nothing at all in the agreed statement of facts that refers to the offender having consumed alcohol that day, or having been intoxicated. In any event, the Sentencing Act s 21A(5AA) states that self-induced intoxication of the offender at the time of an offence is not taken into account as a mitigating factor.
I am of the view that the multiple injuries were suggestive of a frenzied and purposeful attack on the deceased, likely driven by anger and jealousy.

Victim impact statements

There were some statements from Ms Abek's family read at the sentencing hearing. Ms Abek's family members live overseas and on my understanding are not able to be present. Ms Abek's mother spoke of feeling "in limbo". She described how on the first day she heard "this horrible news, my mouth went crooked and fixed in place". She spoke of feeling paralysed and losing the will to live, with a burning sensation in her heart" as though her "heart is on fire". She describes wanting to scream so hard she could just die.
Ms Abek's brothers and sister wrote of how much they love and miss her and that their eyes are "dry from crying" and describe the physical symptoms they suffer from their overwhelming grief and distress at the way that Ms Abek was killed in another country, being defenceless and at the mercy of the offender. Ms Abek's grandmother spoke of a happy and kind child, who grew into a capable and intelligent young woman, uncomplaining, kind, generous, clever and helpful. She cries for her darling Nasrin and cries for her own daughter who has lost her beloved daughter who she describes having died "so viciously" and "so young".
The relevance of this material to the sentencing of the offender is prescribed by s 28(4) of the Sentencing Act, namely that the harmful impact of the death of Ms Abek on her family is an aspect of the harm done to the community as a whole. A recognition of that harm is one of the purposes of sentencing: as set out in s 3A of the Sentencing Act.

Subjective circumstances

The offender is 44 years old and was born and raised in Iran. He was married to Ms Abek for 12 years. From an early age, he had worked with his father, repairing, hiring and selling cranes, forklifts and generators for a large industrial company.
He told Dr Furst of some elements of hardship during his childhood.
As I said earlier, he came to Australia as a refugee, arriving in March 2013 having met Ms Abek in Iran in 2003 or 2004.
He began consuming alcohol from age 12 or 13 which was provided to him by his father and developed alcohol dependency. It seems he consumed alcohol regularly in his adult years. He claimed to Dr Furst that it affected him and had a role in the offending, an assertion Dr Furst did not accept from the history that was relayed, and nor do I. The offender told Dr Furst that Ms Abek had started being unfaithful to him from about 2 years into the marriage. He told Dr Furst about this infidelity and asserted Ms Abek was abusive to him.
There is no evidence whatsoever supporting the offender's statements in that regard, nor did he give sworn evidence at the sentencing hearing about this or any other matter.
Counsel for the offender submitted that the longstanding irrational thoughts about infidelity that the offender had, could offer some explanation for his offending and therefore, it seems the submission goes, amount to a subjective factor I should take into account. If that is the submission made, I reject it. Irrational thoughts held by a person about another, or rational thoughts for that matter, can never justify taking the life of another. Jealousy and rage and a sense of entitlement and ownership by a man over his partner in a domestic setting is an ugly and abhorrent feature in the all too frequent crimes of this kind.
The offender's English is poor and he has regularly needed the assistance of an interpreter. The offender's family live in Iran and he has few, if any, local supports. The offender likely faces cancellation of his permanent residency and deportation when his sentence comes to an end, although as the Crown correctly submitted, this is a fact irrelevant to my sentencing task.
The offender was treated for depression after his arrest and he continues on antidepressant and antipsychotic medication. Dr Furst diagnosed the offender with a current adjustment disorder with depressed mood, substance use disorder, alcohol dependence and a possible delusional disorder jealous type. These matters, and the incarceration far from his family are factors that I take into account in determining the appropriate sentence. I accept that the prospects of rehabilitation are limited if the offender does not obtain assistance with his English so that he can fully undertake any rehabilitation assistance that is offered in custody.
Pursuant to the requirements of s 25D of the Sentencing Act, I have reduced the sentence that I impose by 25% in recognition of the guilty plea entered in September 2017.
I make no findings of special circumstances, nor was I asked to do so. As the offender was taken into custody on 29 September 2016, the sentence must commence on that date.

Sentence

Amir Darbanou, please stand. For the offence of the murder of Nasrin Abek, I sentence you to a term of imprisonment of 21 years. That sentence will commence on 29 September 2016 and expire on 28 September 2037. I specify a non-parole period of 15 years 9 months which will expire on 28 June 2032.

Crimes (High Risk Offenders) Act

I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to offences of the type for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you be held in detention or receive supervision at the end of your sentence if the court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.

Endnotes

Muldrock v The Queen (2011) 244 CLR 120; 212 A Crim R 254; [2011] HCA 39.
Apps v R [2006] NSWCCA 290 at [49] per Simpson J.
Versluys v R [2014] NSWCCA 98 at [21].
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim A 1; [2010] NSWCCA 194 at [177].
De La Rosa at [178].
R v Engert (1995) 84 A Crim R 67 at 71.
Milat v R; Klein v R [2014] NSWCCA 29 at [95].
McCulloch v R [2009] NSWCCA 94 per Howie J at [30].

Amendments 06 November 2018 - Changed "Accused" to "Offender" on cover sheet. 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: 06 November 2018

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21, 21A, 25D, 28, 61, s 61(1)

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