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[2012] NSWSC 1324
Supreme Court of NSW
2012-06-08
Davies J
Original judgment source is linked above.
Judgment 1On 27 June 2012 a jury convicted Hazairin Iskandar of the murder of Mohd Shah Saemin on or about 21 February 2010. 2The maximum penalty for murder is life imprisonment and there is a standard non-parole period of 20 years.
3I will deal with the factual background. The facts which I find against the Offender have been found by me to be beyond reasonable doubt, and those in his favour on the balance of probabilities. 4Nita Iskandar and Hazairin Iskandar were born in Indonesia. They were married in 1984 and moved to Australia some three months later. There was only one child of the marriage being Andrew Iskandar. Andrew was born in Sydney on 16 May 1990. He was, therefore, 19 at the time of the offence. The family have lived at Croydon since about 1984. 5The Offender worked as a taxi driver and Nita came to work as a clerk in the Malaysian Consulate in Sydney in 2000. The Deceased Mohd Shah Saemin (known as Shah) commenced employment with the Malaysian Consulate in 2006. He had a second job driving buses to and from the Airport. 6Nita came to know that the Deceased and his wife had separated. Nita had a sister, Jujung also called Suzanne, in Indonesia. When she visited Nita and the Offender about eight or nine months before his arrest (perhaps May or June 2009) Nita introduced Suzanne and the Deceased. Although it appeared a relationship might develop between them Suzanne decided it was not for her. She returned to Indonesia. 7The Offender was first told by a friend in the Indonesian community, Bay Malik that Nita and the Deceased had been seen together in a way that was considered inappropriate for practising Muslims. Although the Offender thought nothing of that at the time other friends reported that the Deceased and Nita had been seen together. The Offender raised the matter with Nita and subsequently the Deceased. 8Both of them denied it. The rumours persisted. The Offender noticed that Nita had changed in some ways. She started to buy more fashionable clothes, she largely stopped cooking at home, she started coming home later from work, she would receive calls on her mobile phone and go into the bedroom to speak to the caller. The Offender heard the word "adultery" or "infidelity" (in Indonesian) mentioned at a wedding at which he was a guest, and he realised that the people concerned were talking about him. 9After this the Offender said he felt shock. It started to bother him. He lost motivation and concentration in his work driving taxis. He even had a minor accident through lack of concentration. He asked Nita about it again but she denied that there was an affair. She said she just loved the Deceased as a friend. The Offender and Nita started arguing a bit. The Offender rang the Deceased about it. He met with the Deceased about a month and a half before the Deceased's death. The Deceased said that he and Nita were like brother and sister, nothing more. 10On another occasion the Offender, whilst driving his taxi, saw the Deceased driving the airport bus. He called out to him to stop so that they could talk but he said the Deceased just drove off while giving him the finger. Some little time later the Offender saw the Deceased near the taxi queue at the airport. He asked him to stay away from Nita. He said the Deceased was "stretching his body" (I understood by his demonstration to mean that the Deceased was flexing his muscles) and told the Offender not to worry about it. The Offender said that he felt intimidated. 11I accept that the ongoing relationship between Nita and the Deceased caused the Offender considerable anguish. I accept Mr Malik's evidence that the Offender changed from being a happy man to one who was sad and apparently depressed, and that the Offender felt the affair brought shame on his family. 12By February 2010 the Offender said his relationship with Nita had completely broken down. She was not sleeping with him, not speaking to him or cooking for him. She would come home late and then shut herself in her room. He told her that if things kept going that way they would be broken up. He thought about divorcing her. He said that divorce was acceptable to him. However, his friend Mr Malik advised against divorce. 13On 14 February 2010 the Offender and Andrew went to the Kings Cross Branch of Budget Car Rentals. The Offender effected the hiring of a car whilst Andrew sat on one of the chairs in the office. The Offender was asked by the Budget representative if Andrew was to be an additional driver, but the Offender said that Andrew was his son and that he was too young. 14At some time during the following week the Offender and Andrew went in the rental car to the vicinity of the Malaysian Consulate in Woollahra. They parked the car in such a position that they could observe people and vehicles leaving the Consulate. Andrew took a photograph on his mobile phone from the front passenger seat of the car. The photograph depicts his father in the driver's seat, and the front of a property with a distinctive object on its front fence which is probably only 100 metres from the Malaysian Consulate can be seen in the background. 15The Offender admitted that the purpose of this visit to the street outside the Consulate was to spy on Nita and the Deceased. 16In the week before the killing, and after the Offender had hired the car from Budget, he followed the Deceased and Nita on a number of occasions. There may have been occasions before that time where the Offender followed one or both of them. On one occasion he saw them go into the Deceased's house and stay there for a few hours at a time. 17During the late afternoon and evening of 21 February 2010 there were a number of telephone calls and/or text messages passing between Andrew and the Offender including a text message from Andrew to the Offender which simply said "?". The Crown case was that this text concerned the planned murder and an enquiry from Andrew to the Offender when it was to happen. It is not possible to reach a concluded view about what that message meant. 18Andrew and the Offender left their home at some time late on the night of Sunday, 21 February 2010 in the rental car. They were both wearing similar clothing being dark hooded jackets. One of these jackets had been purchased by the Offender a week or so previously. They were both wearing caps. In the car was a knife, a hammer, a spanner and possibly a crowbar. The Offender first said that these were in the car because he had used them that afternoon to repair his taxi. He later admitted that he had put them into the car to use in order to scare the Deceased. There were also two pieces of folded blank paper with pegs attached in the car. The folded paper matched the size of the number plates of the car. I find that the purpose of those pieces of paper was to obscure the number plates of the car but the Offender was not able to achieve that because the rear number plate, at least, was flush with the car. 19The Offender drove over to the vicinity of Cromwell and Marion Streets in Leichhardt to wait for the Deceased to arrive home from his night job as an airport bus driver. The Offender said that the reason he drove to that location was to speak to the Deceased and to scare him. He asked Andrew to accompany him so that when the Deceased saw Andrew he would realise that the matter was serious. 20When the Deceased arrived he parked his car, a silver Volvo, on the western side of Cromwell St a short distance north of an electricity utility box. 21The Offender's account of what then happened is this. Either immediately before, or at the same time as, the Deceased alighted from his car, the Offender drove the rental car at the Deceased's car and hit it at the rear. After the Deceased alighted from his car the Deceased swore and then saw that it was the Offender who had run into his car. The Offender, who was by then out of his car, said to the Deceased, "Finish it. This is serious, no more, no more, no more". The Deceased then said, "That's your bad luck. You can't look after your woman" and he called the Offender "Betima" which is an offensive Indonesian word for a female animal. The Deceased also called him "poofter" using the English word. 22The Offender said that he lost control because of what the Deceased said and he tried to jump on the Deceased. A fight then ensued. Andrew became involved. Andrew and the Deceased were wrestling. The Offender went to his car and grabbed the knife and hammer. He hit the Deceased with the hammer which he had in his right hand, the knife being in his left hand. After the Deceased was hit with the hammer he ran diagonally across Cromwell St towards Marion St. The Offender gave the hammer to Andrew and said "Hit that animal". The Offender chased him, hitting him as he ran with the knife. When the Deceased fell on the footpath on the southern side of Marion St the Offender said that he "lost it" and stabbed him in the chest. In cross-examination he admitted also to stabbing him in the back when the Deceased was on the ground in Marion Street before stabbing him in the chest. 23Nada Bailey was walking down Marion St from Norton St on the southern side. As she approached the intersection with Cromwell St she saw three men who were running across Marion St from the direction of Cromwell St. The two men on either side of the man in the middle appeared to be kicking him very hard. The man in the middle was trying to get away. He ran over towards Ms Bailey, and he was calling out "help, help me". She said the man tripped over the gutter as he approached her, and he fell to the ground outside number 28 Marion St. She noticed his shirt was all wet. 24She shouted to the other two men to leave him alone but they continued to run after him. When he fell she tried to cover him with her body but one or both (she was not sure) of the two attackers kicked her out of the way into the gutter. One of the men was bashing him with a hammer. The other man stood to one side holding a small black object like a small bar. I am satisfied from other evidence that this object was the knife used to stab the Deceased and that the man holding it was the Offender. 25Whilst this was happening Janine Cahill was walking down the southern side of Marion St. She saw what she thought at first to be two men running across Marion St from Cromwell St. As she continued walking she saw two men attacking a third man who was on the ground. She also saw Ms Bailey trying to protect the man on the ground. When she was about level with 18 Marion Street she rang 000 and asked for the police. She then yelled at the attackers telling them she had rung the police. She saw one of the men striking the Deceased very hard with a weapon a number of times. Then the two men ran off in the direction of Cromwell St. 26The police were first notified at 11.53pm and arrived at the scene a short time afterwards. In the meantime Ms Cahill commenced to perform CPR on the Deceased,. When Constable Hickey arrived she took over performing CPR until the ambulance arrived. The Deceased was pronounced dead at 12.05 am. 27The police had noticed the silver Volvo in Cromwell St with the door open. Inspection of that car and its surrounds determined that it was the Deceased's car. It was damaged at the back where it had been struck by the rental car driven by the Offender. A clump of what turned out later to be the Deceased's hair was found, and there was a trail of blood leading from that car across both Cromwell and Marion Streets. The police also located a hammer lying on the ground near the car. Andrew Iskandar's DNA was later found on that hammer. 28The Post Mortem report makes it clear that the Deceased was both struck with a weapon consistent with being a hammer, and stabbed with a long-blade knife. Four stab wounds were identified, one to the lower right flank, one to the mid back, one to the upper back and one to the chest. The cause of death was a stab wound to the chest area which pierced his Vena Cava, the main vein carrying blood back to the heart. Despite the Offender's evidence suggesting that he inflicted only three of those wounds, one as he chased the Deceased in Cromwell St, and two when he was on the ground in Marion Street, I find that all four were inflicted by him. 29The Offender's defence to the admitted killing was that he was provoked. He pleaded guilty to manslaughter on the basis of provocation but that plea was not accepted by the Crown. The jury's verdict demonstrates that they did not accept the Offender had been provoked so as to reduce the crime to manslaughter. 30I do not accept the Offender's evidence that the Deceased said the words to the Offender as the Offender alleged. Significantly, when the Offender spoke to a number of his friends within 12 hours of the killing he did not tell them that the Deceased had spoken any words to him that had provoked him. He said that he did not tell them because he was embarrassed. I do not accept that evidence. Moreover, I accept Mr Malik's evidence that in a conversation he had with the Offender shortly after the killing that the Offender said to him that he bashed the Deceased "for the dignity of my family". Mr Malik also said, and I accept, that the Offender said only that he bashed the Deceased but said nothing about a fight with him first. 31Ultimately the account given by the Offender contains such inconsistencies that it cannot be accepted. At one time in his evidence he said he did not even intend to go to Leichhardt that night - rather, the idea only occurred to him as he was driving to have a meal with Andrew in Crown St. It was in a restaurant in Crown St that the Offender falsely told the police in his ERISP that he had met a stranger who, when he heard the Offender's story of his wife's affair, persuaded the Offender to kill the Deceased that night. At other times in his evidence he said that he planned to confront the Deceased and scare him that night. At one point he said he took Andrew with him, just to stay sitting in the car, so that the Deceased would see that he was serious when he told the Deceased to stay away from Nita. At another point he said that he took a knife and two hammers (one for Andrew and one for himself) so that they could scare the Deceased with those weapons. 32I find that the altercation happened in this way. The evidence establishes that the Deceased had just alighted from his car and was opening the rear driver's side door when his car was hit. He was almost immediately set upon by at least the Offender who was armed with one or more of the weapons. The clump of the Deceased's hair found in the back of his car is supportive of the immediacy of an attack while the Deceased was positioned right near the rear driver's side door. At some short time later Andrew was also involved in the attack. The trail of blood to Marion St establishes that the knife was used on the Deceased in Cromwell St. . 33I reject the submission made on behalf of the Offender that when he stabbed the Deceased he did not intend to kill him. The evidence from the pathologist was that two of the stab wounds, including the one that killed him, were made with considerable force. 34I find the position to be that the Offender went to ambush the Deceased on that evening with the intention of killing him. I find that the attack on the Deceased took place before there was any verbal exchange between the Offender and the Deceased. The Deceased was struck with the hammer and probably the knife whilst the parties were in Cromwell St. If the Deceased fought back at all he did not do so after he attempted to run from them in Cromwell St. At least two of the stab wounds were inflicted after the Deceased fell at the gutter on the southern side of Marion Street. He was completely defenceless. His brave defender, Nada Bailey, was kicked out of the way so that the Offender and Andrew could continue the attack. Whilst the Offender stabbed the Deceased Andrew was hitting the Deceased with considerable force, as the pathology report demonstrates, using the hammer that was taken to the scene in the car. The Offender and Andrew did not speak during the attack except when the Offender told Andrew to "hit that animal". That was because the killing was planned.
35The Offender was born on 13 November 1954 in Palembang in Indonesia. He is now aged 58 and was 55 at the time of the offence. He left school at 18 without any formal qualification. He worked for a few years before moving to Australia in 1979. He worked in a variety of positions including labouring, restaurant work and factory work. 36On a visit home to Indonesia in 1983 he was introduced to Nita. They were married in 1984 in Indonesia. She then moved with him to Australia. Their son Andrew was born in 1990. The Offender worked as a taxi driver from about 2003. 37The Offender and his family are of the Islamic faith and his beliefs about matters relevant to the circumstances of the offence are informed by that faith. 38The Offender has only one matter on his record. He received a s 10 Bond for a common assault in May 2007. It arose from an altercation he had with a passenger in his taxi who refused to pay the fare by reason of the way she alleged he drove. 39References were tendered from friends and neighbours of the Offender, and from Nita, who all spoke highly of him. Some spoke of the volunteer work he did for the Indonesian community. I accept that this offending seems to be quite out of character for him. However, I note what Dr Jonathon Adams, the psychiatrist who examined him in September 2012, said in his report: On the basis of the information currently available it appears that the offence took place in the context of Mr Iskandar's feelings of social embarrassment and shame - strongly linked with his religious beliefs - alongside his increasing preoccupation with his wife's infidelity and adjustment difficulties. However, bearing in mind Mr Iskandar's reported background history and these predisposing and precipitating factors, in my opinion the severity of violence involved in the offence is difficult to understand. On the one hand this formulation might be reasonable, but on the other hand I am concerned that there are unknown variables - perhaps in relation to Mr Iskandar's dispositional traits - that I am not currently aware. 40Dr Adams noted that the Offender did not report any history leading up to the offence consistent with mental illness, including a mood, psychotic or anxiety disorder. He said that the Offender's presentation was in keeping with that of adjustment difficulties prior to the offence. 41When he gave evidence at the sentencing hearing he had been provided with the Offender's evidence at the trial, the evidence of Bay Malik and the references to which I have referred. On the basis of that further material Dr Adams said that he considered the Offender suffered from an adjustment disorder at the time of the offence. One effect of that, Dr Adams said, was that it would have impacted on the Offender's ability to think rationally at the time of the offence. The difference between adjustment difficulties and adjustment disorder, he said, is "the impact upon one's functioning and how that prolongs over time". 42It is apparent that Dr Adams' diagnosis that the Offender was suffering from an adjustment disorder came from his acceptance of the Offender's and Mr Malik's evidence. However, I do not accept that in all matters the Offender told the truth. Contrary to the Offender's evidence I have found that this offence was carefully planned, that there were no words spoken by the Deceased before the attack, that the attack occurred in a way different from that described by the Offender and was far more vicious and brutal than he recounted. I shall return to the relevance of any adjustment disorder presently.
Objective seriousness 43The starting point is that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 at 293. It is the responsibility of the Courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31]. 44I mentioned earlier that murder carries a standard non-parole period. I note what was said in Muldrock v The Queen [2011] HCA 39 at [17], [20], [25] - [27] and [29] concerning the way the standard non-parole period is to be dealt with. What remains unclear from Muldrock is whether any assessment should be made of where in the range of objective seriousness the offence lies: R v Koloamatangi [2011] NSWCCA 288 at [19]. In cases decided by the Court of Criminal Appeal since Muldrock the preponderant view appears to be that it is not an error to do so and may be helpful: Beveridge v R [2011] NSWCCA 249 at [10]-[18]; Madden v R [2011] NSWCCA 254 at [36]. 45In my opinion this offence should be regarded as falling a little above the mid-range of objective seriousness. The following matters support that. 46First, I have found that the Offender had an intention to kill the Deceased. Secondly, there was considerable pre-planning. Thirdly, it was committed in company. Fourthly, weapons were used. Fifthly, there is the nature and length of the attack. 47I have made reference earlier to the first and fourth of those matters, that is, the intention to kill and the use of the weapons. I have referred to the fact that the offence was committed with his son Andrew as an active participant. In relation to the second matter, the pre-planning, the following facts lead me to the view that the Deceased's murder was pre-planned: (1)The hiring of the car and the spying on, and following of, the Deceased ; (2)The purchase of the second dark spray jacket in the week before the offence, and the wearing of those jackets on a hot summer night; (3)The wearing of caps at night in an attempt to disguise themselves; (4)The taking of the weapons in the car; (5)The paper folded to the size of the number plates with the pegs although they were not able to be used; (6) The lack of communication between the Offender and Andrew during the attack, particularly seen in the light of the number of telephone calls earlier that day between father and son; (7) The failure of the Offender's encounters with the Deceased to persuade him not to see Nita and the Offender's ongoing frustration with the situation; 48The fifth matter going to the objective seriousness of the offence concerns the level of violence employed. I share Dr Adams' view that, in the light of what is known about the Offender, the level of violence is very difficult to understand. This was a vicious, prolonged and brutal attack with some of the worst aspects of its violence being perpetrated whilst the Deceased lay on the ground endeavouring to protect himself and with his attempted protector, Nada Bailey, as I have noted, having been kicked out of the way. 49Although the one offence on the Offender's record involved a small measure of violence I do not regard that offence as an aggravating factor.
50I turn now to consider mitigating factors. 51I accept that the Offender is genuinely remorseful for what happened. On more than one occasion at the trial whilst giving evidence he cried. On another occasion whilst he was listening to evidence being given he broke down completely necessitating an adjournment of the court. These incidents were not feigned. 52At his sentencing hearing he asked to be able to say that he was sorry to the Deceased's family for what he had done. His further evidence in relation to that apology highlighted the significance of his religious beliefs, and demonstrates that his feelings of guilt, shame and remorse are genuinely held. 53I have given consideration in determining whether he is genuinely remorseful to the fact that the Offender has maintained his account of provocation by the Deceased, and for that reason has continued to say that he did not set out to kill the Deceased. In this regard s 21A(3)(i) is relevant as is what was said by the Court of Criminal Appeal in Windle v R [2011] NSWCCA 277 at [44] and [52] - [54]. Remorse is a mitigating factor in accordance with s 21A(3): but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 54I do not think that the Offender deliberately lied when giving this evidence. I consider that, in a way that is often observed in witnesses, the Offender has come to believe that his account is the way it happened, although that account does not accord with the true position. I consider that he is sincerely sorry for what he believes was his lack of control that resulted in the death of the Deceased. I do not consider that his statement that "Satan took hold of me" was other than his way of acknowledging that he had done a very wicked thing. 55It was submitted that regard should be had to the Offender's mental state at the time of the offence and matters of provocation not amounting to a defence. 56I accept that the relationship between Nita and the Deceased caused the Offender to become upset and to some extent depressed. It did not prevent him, however, from working nor from carrying out ordinary activities such as taking Andrew for driving lessons and socialising with his friends in the Indonesian community. It did not prevent him endeavouring to make arrangements within a week before the offence for his relatives in Wollongong to come to Sydney to visit him and the family although that did not eventuate for reasons external to the Offender. 57Further, the extent of the pre-planning that commenced with the Offender following the Deceased and Nita to see where the Deceased lived, and included the hiring of the car a week in advance and the detailed planning for the night (the purchase of the spray jacket, the placement of the tools, the sheets of paper and pegs) do not point to a person incapacitated to any significant extent by an adjustment disorder. I consider that any such disorder has small relevance to the offence. That is, in a sense, supported by Dr Adams who denied any causal relationship between the disorder and the commission of the offence. 58I have already rejected the evidence of provocation on the night of the offence. I take into account the upset and shame the Offender felt as a result of the ongoing relationship over which he appeared to have no control. However, as this Court said in Regina v White (NSWCCA - 23 June 1998 - unreported) these matters only explain the Offender's motive for murdering the Deceased, and where the crime is a carefully premeditated murder motive should not be regarded as a mitigating factor. 59Nevertheless, the provocation from the ongoing relationship means that personal deterrence has less of a role to play. On the other hand it has some significance for general deterrence. As the Court of Criminal Appeal said in Dwayne William Smith v R [2011] NSWCCA 209, people cannot be allowed to take the law into their own hands and exact vengeance for wrongs done to them. 60The Offender pleaded guilty to manslaughter on the first day of the trial. The result was that the only significant issue in the trial was provocation. That meant that agreement was able to be reached on a number of matters - DNA evidence, fingerprint evidence, phone records and evidence from Malaysian witnesses who had returned to their own country. There was a saving of time and money. This showed a willingness to facilitate the course of justice (R v Doff [2005] NSWCCA 119), and I have allowed a discount of 10% for this. 61Consideration must be given to the Offender's age. He is, as I have noted, now 58 years old. On any view he will be of advanced years when he leaves prison. It may be accepted that, for that reason, prison will be more onerous than for a younger person who will still have many years left when released: Holyoak v R (1995) 82 A Crim R 502 at 507. The authorities stress the significance of the objective seriousness of the offence and the need to provide for an appropriate sentence whilst not overlooking the future of an older Offender: De Rosiers v R [2006] NSWCCA 16 at [32]. They also suggest that the case may be a less appropriate vehicle to give voice to general deterrence: Goebel-McGregor v R [2006] NSWCCA 390 at [128]; Holyoak at 507. 62Although I have taken into account the Offender's age and that a lengthy sentence will be more onerous as a result, the Offender is not in ill-health. Further, and most significantly, this was a brutal and, for the Deceased, a terrifying slaying where he no doubt suffered considerably before he died. The reason for the commission of this crime makes it a suitable vehicle to give voice to general deterrence as I have mentioned above.
Parity 63I sentenced Andrew Iskandar on 16 March 2012 for his part in the murder to a non-parole period of 18 years with an additional term of 7 years. I made a small adjustment for special circumstances because of his age, lack of criminal record and prospects of rehabilitation. 64The differences of significance between the present Offender and Andrew Iskandar are twofold. First, is what I have found to be the genuine remorse of the present Offender. I found that Andrew Iskandar expressed no remorse. Secondly, the present Offender is to be given a discount for his plea. 65I gave some consideration to Andrew's youth and in the same way I give some consideration to the present Offender's more advanced years. Partly because of the age of the present Offender, his obvious remorse and the victim-specific nature of the crime, rehabilitation is not an important factor here. Those matters also mean that he is unlikely to be a danger to the general public in the way that those who kill randomly or concomitantly with the commission of property or drug offences are such a danger. 66As at Andrew's trial the evidence at the present trial suggests the present Offender was the moving influence in what was arranged and perpetrated. The evidence also demonstrated, however, that their culpability in the execution of the crime cannot be differentiated. Both employed savage and brutal force with the weapon each wielded.
Sentence 67Taking all of these matters into account I consider that the appropriate non-parole period is 17 years with an additional term of 6 years. The Offender has been in custody since 23 February 2010. The sentence will commence on that day. 68Hazairin Iskandar, for the murder of Mohd Shah Saemin I sentence you to a minimum term of 17 years imprisonment commencing 23 February 2010 and expiring 22 February 2027 with an additional term of 6 years expiring 22 February 2033.
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: 07 December 2012
R
Hazairin Iskandar