HIDDEN AJ: The accused, Shahram Hejabian, has been found guilty of the murder of Nouha Salame between 18 and 21 April 2014 at Doonside. He stands for sentence for that offence. At some time between those dates he killed Ms Salame, with whom he had been in relationship, and attempted to kill himself. In the manner in which the trial was conducted, the only issue was whether he had available to him the defence of substantial impairment by abnormality of mind. To understand this event, it is necessary to sketch some background.
The accused was born in Iran on 5 July 1976. Accordingly, he was 37 years old at the time of the offence and is now 40. He was of the Bahai faith, and from his youth in Iran he suffered discrimination, abuse and violence because of his religion. He married in Iran but, as a result of this persecution, he and his wife took refuge in Turkey. He was then in his early twenties. They remained in that country until travelling to Australia in 2001, he being accepted as a refugee.
He and his wife had a son but, within months of arriving in Australia, they separated. They were divorced in 2004. It seems that life was not easy for him during this period. He was prevented from seeing his son, and he perceived difficulties in obtaining accommodation and social security benefits. He felt that he had received no help and support here, despite his refugee status. Notwithstanding his fears about life in Iran, he returned to that country.
There he remarried. In 2005 he and his second wife returned to Australia, where his family had also settled. Unfortunately, his second wife suffered from schizophrenia. She was given to episodes of self-harm and spent periods in hospital for psychiatric treatment. He decided that he should look after her as she was his wife and was dependent upon him. He became her carer. All this caused him considerable, ongoing stress. From 2011, he underwent psychological and psychiatric treatment, having been diagnosed with long standing post traumatic stress disorder and depression. It would appear that these conditions had their origin in his experience of persecution in Iran, but were maintained and heightened by the effects upon him of his wife's mental illness.
It was in or about 2010 that the accused met Ms Salame, the deceased, and a relationship between them developed. However, they did not live together. At the time of the murder she was living at Mt Druitt and he at Doonside. He had been living at that address with his second wife but from time to time she was absent during periods of hospitalisation. Some months before the murder, she had been placed permanently in a mental health facility.
At the trial, relatives and friends of the deceased, and the brother of the accused, gave evidence of their observations of his relationship with her. As one might expect, those observations varied but what emerged from that evidence, for the most part, was a troubled relationship. The accused himself gave various accounts of the relationship to health professionals with whom he came into contact after his arrest. This included two forensic psychiatrists, Dr Stephen Allnutt and Dr Richard Furst, who gave evidence on the issue of substantial impairment. There were significant inconsistencies in those accounts, but I do not find it necessary to examine them for present purposes.
I am satisfied that the accused became very emotionally dependent upon the deceased and, as the Crown Prosecutor put it in submissions on sentence, saw her as his saviour in a future which otherwise appeared devoid of hope. He wanted her to marry him but, no doubt understandably, that was not a course to which she was prepared to commit herself. The deceased's eldest daughter, Sarah Salame, described his behaviour in the weeks leading up to the murder as "obsessive". He would call the deceased on her mobile phone "multiple times", and arrive at her home unannounced. The deceased was not happy about this because, whilst Sarah was aware of the relationship, her younger siblings were not.
Also some months before the murder, he told the deceased that if she left him, he would kill her and himself. It seems that she did not take this seriously, and the Crown Prosecutor did not rely upon it as evidence that the murder was premeditated. Nevertheless, it is an indication of the intensity of his feelings for the deceased and the extent of his emotional dependence upon her.
The deceased was killed some time between the afternoon of 19 April 2014, when she spoke to a friend on the phone, and the evening of 21 April 2014, when police gained entry to the home at Doonside and found the body of the deceased in the hallway and the accused, barely conscious, in a bedroom. It may well have occurred later on 19 April, but that cannot be firmly established by the evidence. The accused also gave accounts of what happened to health professionals and to Dr Allnutt and Dr Furst, which are inconsistent and much of which I do not accept. Whether these accounts were deliberate falsehoods or the result of impaired memory, or both, I find unnecessary to decide. His counsel, Mr Austin, did not rely upon any of those accounts but, rather, on observations at the crime scene which included, importantly, some writing on a wall which amounted to a suicide note.
Dr Kendall Bailey conducted an autopsy on the deceased. She noted two lacerations on her scalp, under one of which there were two skull fractures. The nature of the lacerations conveyed that they had been caused by an implement like a hammer. She also noted abrasions on her neck and face and petechial haemorrhages in her eyes and on the skin around the eyes. She saw these injuries as the result of compression of the neck. She thought it unlikely that the head injuries alone would have caused death, and concluded that it was the result of the combined effects of those injuries and neck compression.
Observation of the brain disclosed signs that there had been some deprivation of oxygen, which could cause asphyxia. Dr Bailey could not say whether the neck compression produced death or merely an altered level of consciousness, but she saw it as a contributing factor. She said that the deceased may have been unconscious from a combination of the head injuries and neck compression, and then been unable to protect her airway, leading to asphyxia.
The deceased was found lying on her back and Dr Bailey considered the possibility that, in an unconscious state, her tongue had blocked her airway. She agreed that the airway could be blocked in that manner, but the effect of her evidence was that in the present case that would not have caused asphyxiation in the absence of neck compression. It could not explain the facial and neck abrasions and, in particular, the petechial haemorrhages.
Evidence was also given by Dr Peter Ellis, a forensic pathologist, who had been supplied with Dr Bailey's report and the crime scene evidence. Put shortly, he was of the view that the head injuries would have been sufficient of themselves to cause death. He doubted that any neck compression would have contributed to the death, as there was no injury to the underlying tissues or structures of the neck. He saw Dr Bailey's observations as "very supportive" of asphyxia, but thought it more likely that it was the result of some obstruction to breathing "by interference with maybe the nose and mouth, in some form of suffocation." He shared Dr Bailey's view that the deceased would be unlikely to have asphyxiated simply by her tongue falling back and blocking her airway. He saw the petechial haemorrhages as "more indicative of a more active interference with breathing."
The significance of this evidence is its bearing upon whether the accused intended to kill the deceased rather than to cause her grievous bodily harm. Mr Austin submitted that I would not be satisfied beyond reasonable doubt that the deceased's asphyxiation was the result of a deliberate act of the accused. In my view, however, the expert evidence admits of no other conclusion. I am satisfied that, apart from the blows to the deceased's head, the accused did an act leading to her asphyxiation. The conclusion that he intended to kill her is inescapable.
This is not to say that the killing was planned. A consistent thread in the various accounts of the accused was that he and the deceased had a heated argument. I accept that that was the case and, whatever its precise terms might have been, it was directed to his perception of their failing relationship. As I have said, on the wall of the bedroom in which the accused was found was writing by him in Persian. A Persian interpreter gave evidence of her translation of that writing. There was no punctuation in it, but she supplied some punctuation in the translation so as to make it more readily understood.
The message began with the accused's complaints about his treatment in Australia, and referred to the breakdown of his relationship with his first wife and the difficulties of coping with the mental illness of his second wife. Relevantly, it continued:
Within this time I met this lady. It is about 4 years that we have a relationship. We have even had sex. Within these 4 years this lady has made me many promises that she will make me a happy man. I am an emotional and weak person. From feelings point of view this lady has broken my heart. Within this period she kept changing her words. She would say I love you but she did not. She used me in every ways. She always lied to her children and first husband. When she was speaking with them on the phone she always lied. She said she would marry me. I said okay. Whatever she said I said okay because I really love her. But she always played with my feelings. She put so much emotional pressure on me. She caused me much torment. She left me a year ago. No matter how much I begged her she didn't have mercy on me. I fell into a sick bed for 3 months. I had much stress and anxiety and fear of everything in this prostitute bearing country. Forgive me for having written this but the reality is that one disaster happened to me that was due to severe stress. I do not know what else to say.
The underlined words and figures in that passage are as they appeared in the writing on the wall. The message continued by expressing the accused's desire that his mother be told not to be sad for him, and an assertion that he loved his family. It ended with the word "Farewell". Insofar as that passage suggests that the deceased behaved deceitfully, or set out to cause the accused emotional distress, I have no reason to believe that that was so. I do, however, accept that that was his perception.
As I have said, the accused was found in the bedroom barely conscious. He had a number of pressure sores on the right side of his body, conveying that he had been lying on the floor on that side for a lengthy period. Ambulance officers conveyed him to Westmead Hospital.
Pharmacological evidence established that he had taken a significant overdose of Mirtazapine tablets, which he had been prescribed for his depression, and a substantial overdose of Clozapine tablets, an anti-psychotic drug which would have been prescribed for his wife. Medical evidence established that he was likely to have become unconscious following his ingestion of this medication and that he had been lying in the same position long enough to have contracted a condition known as Rhabdomyolysis. This arises from muscle damage, causing the release of a particular protein which, in turn, causes kidney failure. Eventually, if untreated, it can be fatal. It has left the accused with enduring problems with mobility, requiring the use of a wheelchair.
Clearly, this was a serious suicide attempt on the part of the accused. The Crown Prosecutor accepted as much.
By reference to the terms of s 23A(1) of the Crimes Act 1900, the defence of substantial impairment was presented on the basis that at the relevant time the accused's ability to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, that impairment being so substantial as to warrant his liability for murder being reduced to manslaughter. As to the underlying condition, both Dr Furst and Dr Allnutt reviewed the history which I have outlined and records of the accused's psychiatric and psychological treatment, both before the murder and at Westmead Hospital and in custody after his arrest. Both psychiatrists diagnosed him with post-traumatic stress disorder and depression, and were of the view that he was suffering from an abnormality of mind at the relevant time.
Whether that amounted to an impairment sufficient to warrant the reduction of murder to manslaughter was a matter which they properly left to the decision of the jury. In my view, it was probably upon that issue, involving the application of community standards, that the defence failed.
However that may be, I am satisfied that the accused had lost self control at the time he killed the deceased and that his mental illness was a significant factor contributing to his conduct. This was an uncharacteristic episode of serious violence, there being no evidence of any other violence on his part during the relationship. As Dr Furst observed, his state of mind is best divined from the message he wrote on the wall and his serious attempt to end his own life. Accordingly, in the light of a long line of authority on this issue, his moral culpability for his actions is reduced and the need for his sentence to reflect the consideration of general deterrence is moderated. The Crown Prosecutor accepted that the principles emerging from those cases dealing with the bearing of mental illness on sentence are applicable here.
That said, the offence remains a serious one of its kind and, while taking into account the accused's mental illness, the sentence I pass must reflect an appropriate measure of denunciation and deterrence. The crime of murder carries a maximum sentence of imprisonment for life and a standard non-parole period of 20 years. It is not suggested that the present case falls into the worst category calling for the imposition of the maximum sentence, and the accused's background, the circumstances of the offence as I have found them, and his otherwise favourable subjective case to which I shall refer, justify a significant departure from the standard non-parole period.
I received a victim impact statement from the deceased's daughter, Sarah Salame, which she read to the court. That was no easy task but, notwithstanding her obvious distress, she did so with courage. The statement expressed eloquently the outrage and grief of herself, her siblings and her extended family, and the enduring effects upon all of them of this tragic event. I expressed my deepest sympathy to Ms Salame and her family members at the sentence hearing, and I do so again now. I have regard to that statement in accordance with prevailing authority.
The accused has a brief criminal history. In 2002 he was convicted and placed on bonds for offences of common assault and contravening an apprehended domestic violence order, those offences relating to his first wife. I have no details of the offences but, while the common assault suggests an episode of domestic violence, I place little significance on them given their age and the lenient outcome. In 2013 he was again convicted and placed on a bond for offences of indecent assault upon a person under the age of 16. I place little significance upon those offences also, but regard must be had to the fact that he was subject to that bond at the time of the murder.
The accused will require ongoing treatment for his mental illness while in custody, and I take into account the fact that that mental illness, together with his physical disability arising from his suicide attempt, will make his time in custody more difficult. As I have said, there was no history of violence in his relationship with the deceased prior to the murder and I consider that, with appropriate treatment and supervision, his prospects of rehabilitation are favourable. As I have said, I expect that he will continue to undergo treatment while in custody and, no doubt, it is important that a treatment plan be developed and maintained upon his release. With those safeguards in place, I think it unlikely that he would re-offend in this way.
Mr Austin submitted that I should find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period. However, the sentence I impose must be lengthy and, in my view, the period of parole eligibility afforded by the statutory proportion would be sufficient to foster the accused's rehabilitation through supervision and the continuing sanction of parole.
Taking all these factors into account, I have decided that the appropriate sentence is imprisonment for 21 years. Applying the statutory proportion, the non-parole period is 15 years and 9 months. As I have said, the accused was conveyed to Westmead Hospital on 21 April 2014 and, although he was not formally arrested until two days later, he has been effectively in custody since that date. Accordingly, the sentence will date from 21 April 2014.
Shahram Hejabian, for the murder of Nouha Salame you are sentenced to a non-parole period of 15 years and 9 months, commencing on 21 April 2014 and expiring on 20 January 2030, and a balance of term of 5 years and 3 months, commencing on 21 January 2030 and expiring on 20 April 2035. You will be eligible for release on parole on 21 January 2030.
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Decision last updated: 01 December 2016