R v Hossain

R v Hossain - [2023] NSWSC 1621 - NSWSC 2023 case summary — Zoe

[4]

The circumstances of the offending

The background matters that follow are drawn from the agreed facts (Exhibit A), and they reflect my findings. There are some confined issues about what inferences can and should be drawn from these facts - which will be identified and resolved.
The offender is Altaf Hossain. He was born in May 1969. The victim is Syeda Nirupama. She was born in August 1985. They were formerly husband and wife. They were married in 2006. It was an arranged marriage: Ms Nirupama was then living in Bangladesh, and the offender travelled from Australia to Bangladesh for the ceremony. In 2009 Ms Nirupama moved to Australia to live with the offender.
The offender and Ms Nirupama have two children - a son, who was born in November 2009 and a daughter who was born in July 2011. At the time of the killing, they were aged 9 and 7. They lived in a house in Minto which was where Ms Nirupama was murdered.
The offender and the Ms Nirupama had relationship issues during the course of their marriage. There is some evidence that the offender acted violently towards the Ms Nirupama during their relationship, but the agreed facts are that the offender denies that there was such violence in the relationship. Given that contest, I am unable to be satisfied beyond reasonable doubt that there was, in fact, violence in the relationship.
On 19 April 2019 - two days prior to the killing - Ms Nirupama was having a telephone conversation with her brother. During the course of that telephone conversation the offender "grabbed" the telephone and engaged in a conversation with the brother, which went for one hour and 30 minutes. The brother recalls the offender stating: The relationship between your sister and me is not going good. Nowadays I can't tolerate her much and sometimes if I become angry [it's] too much for me and a thought come to my mind of killing her. Now I am uncertain something can happen any time. I don't know when or what but and (sic) incident or accident can happen any time.
The brother also recalls the offender stating: Because of things going on at home I don't know what will happen, I may kill her. I may kill her and commit suicide or I will just commit suicide on my own.
The offender also complained that Ms Nirupama had accused him of having an extramarital affair, which he denied. Ms Nirupama's brother suggested that they get tracking devices so they could "monitor for each other" - an idea that the offender liked, and he asked the brother where he could purchase these devices.
I pause in this narration to deal with two contested issues that arises from what was discussed on the telephone between the offender and Ms Nirupama's brother and the nature of the disharmony in the relationship between the offender and Ms Nirupama more generally. First, the Crown submitted, essentially based upon what was discussed during the course of the telephone conversation with Ms Nirupama's brother, that the Court would find the murder was premeditated (Crown submissions at [7]). A finding of premeditation (and planning) would be a fact adverse to the offender, with the consequence that it would need to be established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. There is little material within the agreed facts upon which inferences might, possibly, be drawn in connection with this issue. Given the state of the evidence, I am not satisfied beyond reasonable doubt that this evidence relied upon demonstrates that the killing of Ms Nirupama was premeditated, in the sense that the offender had planned as at the time of the telephone conversation to kill Ms Nirupama and had resolved to carry that plan out. Secondly, the Crown also submitted that the Court would find that the offender displayed "anger and controlling behaviour towards the deceased over the course of the relationship". In my respectful view the evidence does not demonstrate behaviour of that kind "over the course of the relationship". I am mindful that the offender and Ms Nirupama had issues arise during the course of their marriage - the agreed facts are expressed in similarly general terms - and the content of the conversation that the offender had with Ms Nirupama's brother might be suggestive of this. Nevertheless, the agreed facts do not throw any other light on the nature of the conduct, during the course of the relationship, evidencing "anger and controlling behaviour". It follows, therefore, that I am unable to make that finding beyond reasonable doubt. In making that finding, I have not overlooked what is recorded in Professor Greenberg's report dated 27 July 2021 (for example, on p 47): however, the underlying material upon which this opinion was based was not admitted into evidence.
I return now to the narrative of background facts. On 21 April 2019, at approximately 1:30am, Ms Nirupama's brother received a telephone call from her: as Ms Nirupama's brother was on a bus, she asked him to call her when he got home as she needed to talk to him. Ms Nirupama's brother thought that Ms Nirupama "sounded like she was in trouble". When Ms Nirupama's brother arrived home, approximately 40 minutes later, he called Ms Nirupama via a messaging platform, but his call went unanswered.
At approximately 1:45am Ms Nirupama created a secret video recording of an argument between her and the offender. The agreed facts did not identify the duration of the recording, but the content of it has been transcribed. Neither the Crown, nor the offender, placed any particular reliance upon what occurred - except as demonstrating that they had engaged in an argument, that included allegations of marital infidelity.
The argument between the offender and Ms Nirupama went on for some period, but the evidence is such that it is not possible to make any precise finding about its duration. It certainly was not brief.
The argument occurred whilst they were in the house, but it continued into the garage.
The offender stabbed Ms Nirupama to death sometime between 1:45am and 3:50am on 21 April 2019 in the garage.
At 3:09am the offender made three telephone calls to Kazi Rahman. Those calls, initially, went unanswered as Mr Rahman and his wife (Ayesha Siddika) were sleeping. Mr Rahman woke up, saw the missed calls and telephoned the offender back. There was a discussion about why the offender was calling but, ultimately, the offender requested that Mr Rahman come to his house.
At 3:50am Mr Rahman and Ms Siddika arrived at the home in Minto. Ms Siddika asked what had happened, and where Ms Nirupama was. The offender invited them inside: when he opened the front door Ms Siddika immediately saw blood on the hallway floor. The offender then said: "I killed her".
Ms Siddika called 000 at 3:56am, and told the operator that she was at the Minto house and that the offender had killed his wife.
When police arrived at 4:04am they observed the offender had blood on his shirt, hands and feet. Police also observed a large amount of blood on the tiled floor of the hallway and Ms Nirupama was observed on the floor of the garage. The police officer who discovered the body of Ms Nirupama observed numerous wounds to her throat and face. There was a large pool of blood close to her body, as was a large kitchen knife.
At 4:06am the offender was placed under arrest and given a formal caution. This conversation was recorded on body worn video. A detective further cautioned the offender before asking him what happened - to which the offender replied that he and Ms Nirupama were fighting; that Ms Nirupama caused a cut that was observed on the offender's hand; and "then I kill her".
Police observed bloodied footprints leading from the garage to the kitchen, laundry and rear bedroom. There was blood in the sink of the kitchen and laundry.
Ms Nirupama was assessed by ambulance officers who confirmed that she was deceased.
Detectives removed the children from the house through the rear door. It is accepted that the children did not witness the killing or their mother's body.
The offender was taken to Fairfield Hospital and, following some treatment, the offender, having been informed of his rights in custody in the presence of an interpreter, participated in a recorded interview with police.
Neither the Crown, nor the offender, placed any particular reliance upon what was said in that interview with police other than to note that the offender admitted to killing Ms Nirupama.
During that interview the offender told police that the "argument started in the house but they moved into the garage" and that "he took the knife from the kitchen cabinet". When asked why he picked up the knife he said: "that because I became very much temper, hot temper in the head, you know, I don't remember".
The knife located next to Ms Nirupama was forensically tested: the tip of the knife had broken off - and was located inside Ms Nirupama's mouth.
Ms Nirupama underwent a post-mortem examination - which showed she sustained extensive injuries. In relation to Ms Nirupama's face there were numerous incisions/wounds, more extensively on the right side; the lips showed extensive injuries with numerous incisions on the mouth and several teeth were avulsed and displaced with crown and root fractures. The tip of the knife was located on the inner mucosa of the lower lip.
There were extensive stab wounds elsewhere on Ms Nirupama. By way of further example, in relation to Ms Nirupama's neck there were extensive slash/incision wounds present, as well as large gaping wounds and the left and right common carotid arteries and the left and right jugular veins were showing extensive damage. There were 20 stab wounds present on her back.
The left and right upper limbs and hands showed self-defence type injuries - one of which was a stab wound on the left upper arm extending into the underlying muscles, but not into blood vessels or the bone.
In total, Ms Nirupama had in excess of 80 stab wounds. Unsurprisingly, the post-mortem report concluded that the cause of death was multiple stab wounds.
There were no victim impact statements provided to the Court. Little is known about her family and indeed Ms Nirupama. Although little is known about Ms Nirupama, what is known is that she was a daughter, sister and mother. I have no doubt that her loss will be felt deeply by her children, family and the wider community. On behalf of the Court, I express my sincere sympathy to Ms Nirupama's family and friends.

[5]

The relevant statutory provisions

Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for the offence of murder is life imprisonment: s 19A(1) of the Crimes Act. A life sentence must be imposed if "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence": s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the CSPA').
The Crown did not submit that the terms of s 61 were engaged and that a life sentence should be imposed. The offender argued that the commission of the offence, and the circumstances surrounding it, were such that it would not be appropriate to impose a life sentence. I agree. I am not satisfied that a life sentence is appropriate in this case.
Section 54A of the CSPA (when read with the Table - Standard non-parole periods, item 1) provides that the standard non-parole period for this offence is 20 years.
In undertaking the sentencing of the offender, I am required to be mindful of the two legislative guideposts - the maximum sentence of life and the standard non-parole period - and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27].
I also have had regard to the purposes of sentencing as expressed in s 3A of the CPSA. In relation to these matters they are considered, variously, in the course of dealing with the submissions that were raised.
It is, however, important to emphasise that the criminal law gives (and I have given) significant "weight to general deterrence, denunciation and community protection when sentencing an offender who takes the life of his partner or former partner as it does with respect to offences of domestic violence generally": Quinn v R [2018] NSWCCA 297 at [243]. Similarly, in Cherry v R [2017] NSWCCA 150 - drawing upon what was said by the High Court in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54] - the following was said (at [79]): In the context of domestic violence offences, the High Court has observed that it is a longstanding obligation of the State to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against repetition of violence …
The dignity of Ms Nirupama must be vindicated, and the offender held to account for his actions. Personal deterrence and protection of the community are, however, in the present case, less significant given the offender's age and the length of the sentence he will be required to serve.

[6]

The objective seriousness

The Crown submitted, and the offender accepted, that the Court can be satisfied on the basis of the agreed facts that the offender had an intention to kill. Given that concession, and the nature, extent and location of the stab wounds, I am so satisfied and find that the offender intended to kill Ms Nirupama.
The offender submitted that the objective features of the death support a finding that the offending was below the mid-range of objective seriousness (offender's submissions at [17]). In furtherance of this, the offender submitted that: (a) the spontaneous nature of his acts, together with his "mental impairments" at that time, support a finding that the offending was measurably below the midpoint of seriousness; and, (b) the offender's moral culpability was reduced "due to his impaired ability to control his actions and understand their consequences" further "reduces the need to reflect the seriousness of his offending in the severity of his sentence" (offender's submissions at [19]).
The offender also submitted that it was significant that there was no evidence of post death mutilation or dismemberment, nor evidence of any other features such as that the victim was tortured (offender's submissions at [20]).
The offender submitted that although the agreed facts provide context to the killing - essentially that there was marital disharmony and a fight that occurred shortly before Ms Nirupama was killed - the agreed facts, and evidence generally, do not enable any finding to be made about the offender's motive: the offender submitted that the absence of proven motive does not serve to increase or decrease the offender's sentence (offender's submissions at [21]-[22]).
The Crown, on the other hand, submitted that the offending fell above the mid-range (Crown submissions at [2] and [17]).
A sentencing court is required to undertake an assessment of the objective gravity of the offences for which an offender is to be sentenced. The requirements were explained in FL v R [2020] NSWCCA 114 at [58]-[60] in the following terms: [58] There is no question that a sentencing court is obliged to make an assessment of the objective gravity of each offence for which an offender is to be sentenced. That process is a central part of the sentencing exercise, necessary to ensure that an adequate sentence is imposed upon an offender in compliance with s 3A(a) of the Crimes Sentencing Procedure Act 1999 (NSW); and to observe the principle of proportionality, stated in R v Dodd (1991) 57 A Crim R 349 at 354 in this way: "… there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity …". [59] What is not required is for the sentencing court to express that assessment by reference to a formula, or a percentage, or by classifying the objective seriousness of an offence. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the High Court observed at [29] that: "A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard nonparole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed." [60] What is important is to fully identify the "facts, matters and circumstances" which bear on the assessment of the gravity of the crimes. It is not necessary to express the conclusion reached by reference to a position within a range, or by resorting to mathematical terminology: PK v R [2012] NSWCCA 263 at [24]-[27]; RC v R; R v RC [2020] NSWCCA 76 at [243]-[244].
The offender and the Crown submitted that moral culpability was relevant to a consideration of the objective seriousness of the offending (albeit that each argued for different findings about moral culpability). That approach accords with authority. As was explained in Khan v R [2022] NSWCCA 47 at [10]: An assessment of the "objective seriousness" of an offence and the "moral culpability" of the offender are two separate but related concepts of importance, or at least relevance, to the sentencing process (Paterson v R [2021] NSWCCA 273 at [29]; "Paterson"). A mental disorder or mental impairment that is causally connected with or materially contributed to the commission of an offence can inform an assessment of its objective seriousness (Tepania v R [2018] NSWCCA 247 at [112] per Johnson J).
In my view the following matters inform the objective seriousness of the offending - which I considered to be a very serious case of murder.
First, it is apparent that the offender acted with a very great degree of violence toward Ms Nirupama, making the offence objectively more serious than it might otherwise have been. That is, the objective seriousness of the offending is characterised by its ongoing severity. The stabbing extended, as the agreed facts clearly demonstrate, across a considerable part of Ms Nirupama's body - including her chest, neck, face, arms and back.
Secondly, the killing occurred in the family home - a place that should be regarded as one of safety - by a person she could be expected to trust.
Thirdly, the attack was ferocious and, as is evident from the agreed facts, Ms Nirupama attempted to defend herself during the course of it. There can be no doubt that Ms Nirupama met her death in horrific and terrifying circumstances and, given the defensive wounds she suffered, must have experienced not only pain but terror in the final moments of her life. The evidence does not permit me to make any meaningful finding about the duration of the attack, but I accept that it was not brief.
Fourthly, I have earlier found that the offender intended to kill Ms Nirupama: see [40], above. Generally speaking, an intention to kill tends towards a greater level of objective seriousness: Apps v R [2006] NSWCCA 290 at [5] and [49].
Nevertheless, as I have earlier found, I do not accept that, in line with what the Crown submitted, the murder was pre-meditated. I also do not accept the submission of the offender that these events were entirely spontaneous: on what the offender told police, although the offender and Ms Nirupama were arguing in the garage, the offender went from the garage to the kitchen to arm himself with the "large kitchen knife". Despite the defensive wounds that he caused Ms Nirupama, he persisted with his attack upon her. Nevertheless, given the limited evidence in connection with this broad issue, I am unable to make more specific findings.
Fifthly, in connection with moral culpability, although (as I later explain: see [111]ff below) I am satisfied that the offender suffered from a depressive illness (and consistent with the authorities earlier referred to, this can be considered as part of the determination of the objective seriousness of the offending), I am not satisfied that the symptoms of that condition were anything other than a very slight factor in the offender's overreaction to the confrontation he was involved in with Ms Nirupama. Thus, I do not consider that there is any significant reduction in the offender's moral culpability and, in turn, any significant reduction in the objective seriousness of the offending.

[7]

Aggravating factors

The fact the offence was committed in the family home - where Ms Nirupama was entitled to feel safe - was accepted by the offender to be, and I find it was, aggravating: s 21A(2)(eb); Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286 at [41]. I have taken this fact into account.
The offender next submitted that it was "not uncommon for a weapon to be used in a murder" (offender's submissions at [24]). To the extent the submission sought to characterise the use of a weapon as essentially a neutral matter, I do not accept it. Further, the fact that it is not uncommon for a weapon to be used in a murder is, in my respectful view, not to the point: there is a specific statutory prescription providing that an "aggravating factor" occurs when "the offence involved the actual use … of a weapon": s 21A(2)(c). That is this case. I find the use of the weapon - a "large kitchen knife" - to be aggravating, and I have taken this fact into account, albeit that given the offence is murder the use of that weapon does not significantly add to the degree of aggravation: Milat v R; Klein v R [2014] NSWCCA 29 at [95].
The offender also argued that, given that actual violence was inherent in the offending, it was not an aggravating factor: s 21A(2)(b). The Crown did not contest this submission and in those circumstances I am not prepared to find this fact to be aggravating.
The Crown submitted that the nature and severity of the stabbing was an aggravating factor: the Crown argued that the offence "involved gratuitous cruelty" within s 21A(2)(f) (Crown addendum submissions at [24]-[26]). Although I consider there to be considerable force to this submission, the agreed facts do not permit me to make that finding. It is, of course, undeniable that Ms Nirupama suffered widespread stabbing wounds and it is equally true that they involved what I infer to be major arteries in her neck region. Nevertheless, the evidence has limits: for example, it does not reveal the sequence in which the wounds were inflicted nor sufficient details about its duration that would permit me to make a finding, beyond reasonable doubt, that the offending necessarily involved gratuitous cruelty.

[10]

Remorse: s 21A(3)(i)

Remorse shown by an offender is a mitigating factor and can be considered as part of the instinctive synthesis in sentencing the offender: s 21A(3). Relevantly here, as a mitigating factor, this may only be taken into account if "the offender has provided evidence that he … has accepted responsibility for his … actions" and "the offender has acknowledged any injury, loss or damage caused by his … actions: ss 21A(3)(i)(i) and (ii).
The offender submitted that his remorse had been demonstrated by his early guilty plea (which I accept is some evidence of remorse: see [59], above) as well as his admission to the offending to the police who attended, and who subsequently interviewed him. The offender submitted that he had never "taken issue with the suggestion that he was responsible for killing" Ms Nirupama (offender's submissions at [34]). To the extent there was any delay before a plea of guilty was entered, the offender submitted that the delay arose as a consequence of the need to explore whether there was a more appropriate plea to manslaughter available (offender's submissions at [34]). These matters, I accept, to be favourable to the offender, and I have taken them into account.
I am not, however, prepared to accept that the offender admitting "the offending immediately" alone demonstrates remorse. It is, in my respectful view, just as likely to be explained by the fact that his involvement in the killing was a recognition of the inevitable: put simply, it was (as I later explain in connection with the submissions concerning "assistance": see [71], below), as the Crown essentially submitted, "patently obvious to the police who attended" that the offender had killed Ms Nirupama. Nor am I prepared to accept that, in combination with the plea of guilty, remorse has been demonstrated.
The offender has not satisfied me that he is remorseful. The offender, as I have noted elsewhere, did not give evidence and the offender did not suggest there was (nor was my attention drawn to) any statement of remorse by the offender in any of the evidence. Nor has there been any acknowledgement of the kind referred to in s 21A(3)(i)(ii).

[11]

Reduction of penalty for assistance to law enforcement: s 23

The offender submitted that a reduction in "penalty" was warranted because the offender "admitted the offence both at the scene to police and shortly thereafter in an electronically recorded interview" (offender's submissions at [46]). The offender accepted, however, that the level of discount that should be afforded to him did not rise to the level that might be considered appropriate in circumstances where the assistance involved, by way of example, "the detection or prevention of other offending", but nevertheless submitted that "some discount" was "warranted" (offender's submissions at [47]).
The assistance thus relied upon was confined to the admission of the offending at the scene, and in the interview with police later that day.
The admission made by the offender on these occasions was, and accepted by the Crown to be, "assistance" in the "investigation of … the offence concerned within in s 23(1): Howard v R [2019] NSWCCA 109 at [5] and [65]. Given that, the Court may impose a lesser sentence than it would otherwise "having regard to the degree to which the offender has assisted" law enforcement authorities in the investigation of the offence: s 23(1). The section confers a discretion, not an obligation, to impose a lesser sentence: Williamson v R [2015] NSWCCA 250 at [68]; R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90 at [31] ('XX').
In assessing the degree of assistance, and in deciding whether to impose a lesser sentence (or otherwise), the Court must consider the matters in s 23(2): XX at [61]; Ahmad v R [2021] NSWCCA 30 at [41] ('Ahmad'). Further, having considered the matters in s 23(2), the sentencing court is required, before imposing a "lesser penalty" to ensure that any reduction in the sentence is not "unreasonably disproportionate to the nature and circumstances of the offence": s 23(3). The level of discount must also be specified: s 23(4).
The written submissions of the offender were confined in the way that I have earlier outlined: see [66], above. They were not developed during oral submissions. None of the matters in s 23(2) were referred to.
In my view, the offender's admissions were, in the circumstances, of limited significance and usefulness (s 23(2)(b)). That is because, in my respectful view, it is a little difficult to accept following the recording of the argument between the offender and Ms Nirupama, and the involvement of Mr Rahman and Ms Siddika, that anyone other than the offender was responsible for her killing. The fact that the offender admitted to killing Ms Nirupama added little to what was known and discoverable at the scene. As the Crown submitted, the fact that the offender killed Ms Nirupama "was patently obvious to the police who attended the scene who found the offender in front of [the] house where [she] was killed, covered in blood. The Crown's case was very strong even in the absence of his admissions to police" (Crown addendum submissions at [8]). I agree.
The nature of the assistance has been referred to (s 23(2)(d)), as was when it was given (s 23(2)(e)). It was not suggested that, in this specific context, the offender will suffer "harsher custodial conditions" as a consequence of the assistance (s 23(2)(g)). The assistance obviously relates to the offence for which the offender is being sentenced (s 23(2)(i)).
In my respectful view the offender has simply failed to establish the value of the "admissions" and to the extent that this matter may be discernible from the objectively known facts, the admission was negligible: Ahmad at [36]. This was not a case where, say, the offender had come forward to disclose his involvement that would not otherwise have been detected.
The considerations in s 23(2) do not favour, in my view, any lesser penalty being imposed by virtue of the power in s 23(1).

[15]

Introduction

The offender submitted that he suffers from a depressive illness - and at the time that he killed Ms Nirupama he suffered from that illness.
The existence of a mental illness or disorder can be relevant to the sentencing exercise in a range of ways. The principles to be applied when sentencing were summarised in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (citations omitted - 'De La Rosa') as follows: • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence … • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed … • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced … • It may reduce or eliminate the significance of specific deterrence … • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public …
The offender relied upon the first, second, third and fifth 'principles' from that decision (albeit that I have considered the five principles identified). Before addressing the offender's submissions, it is important to emphasise three matters. The first is that the "mental health problems" of an offender are not required to amount to "a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence": De La Rosa at [178] (citing R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269). The second matter relates to the nature of the underlying condition that is argued to engage the relevant principles relied upon from the decision in De La Rosa: as pressed, the only condition relied upon by the offender was a depressive illness or depression. To be clear, the offender specifically eschewed reliance upon any suggestion that the presence of frontoparietal lobe atrophy was material. In adopting this position, the offender accepted that the conclusion expressed by a neuropsychologist qualified by the Crown, Professor Piguet, was not "wrong". Thus, to the extent that any written submissions covered that condition, and its possible consequences and materiality to the De La Rosa principles, they can be put to one side. The third matter is that the principles in De La Rosa were expressed in "permissive terms ("may"), ie, none of the consequences automatically follow from the presence of a mental disorder. Amongst other matters, the nature of the disorder and its relevance to the offence and the offender must be considered": R v Wang [2020] NSWSC 1335 at [61].

[16]

The nature of the underlying mental health condition

The offender relied upon two reports from Dr Olav Nielssen, consultant psychiatrist, as well as material within the offender's medical records and a psychiatric report secured as part of a personal injury claim, to support a finding that he suffered - and suffers - from depression or a depressive illness.
Notwithstanding that the offender does not rely upon the presence of the frontoparietal lobe atrophy (and its possible sequelae in any way), as earlier noted, a short description of that condition is in order.
In the course of assessing the offender, Dr Nielssen reviewed a CT scan performed on 26 September 2018 which, according to Dr Nielssen, "showed significant reduction in the volume of frontal and parietal lobes of the brain" (report dated 7 August 2020, p 9). In that report Dr Nielssen raised the possibility of that atrophy being associated with some impairment in the offender's cognitive functioning.
Given the offender did not contest the opinions expressed by Professor Piguet in his report dated 2 September 2022, it is appropriate to move directly to those opinions to explain why, I find, that is not so - viz., that the atrophy is not associated with impairment in the offender's cognitive functioning. By way of summary, Professor Piguet expressed the following opinions (which I accept). First, that the brain volume loss evident upon the CT scan dated 26 September 2018 was unlikely to have had an impact on the offender's emotional and/or impulse control in April 2019. This opinion was principally based upon the PET scan performed on 6 December 2021: that scan indicated that notwithstanding there were structural changes in the offender's brain, "neural activity appears unchanged" - which suggested that those abnormalities shown on the CT scan were "unlikely to have had an impact on [the offender's] emotional and/or impulse control in April 2019" (report p 2). Secondly, there was no "evidence of gross structural abnormality involving the brain regions" that "mediate decision-making, impulse control and disinhibition" such that any brain volume loss evident upon the CT scan dated 26 September 2018 was unlikely to have substantially impaired the offender's ability to control himself in April 2019 (report p 2). Thirdly, that it was likely, notwithstanding any brain volume loss evident upon the CT scan dated 26 September 2018, that the offender would have "had the capacity to understand events and/or judge whether his actions were right or wrong in April 2019" (report p 3). And, fourthly, that when comparing volumetric loss identified in the CT scan of 2018, and an MRI scan conducted in 2021, that "no gross additional brain atrophy has taken place between the two scans" (report p 4).
There is a further matter that should be addressed: the presence of auditory hallucinations. In relation to that matter, it was submitted on behalf of the offender that there were "question marks" about the existence of that phenomenon. I agree. The presence of those hallucinations was, I find, self-reported, episodic (for example, Professor Greenberg, the forensic psychiatrist qualified by the Crown, noted in his report dated 27 July 2021, that the offender "was vague when questioned" about them), raised only after the killing (there is, in the material, only one fairly non-specific report in a medical record dated 27 June 2012, in the context of a complaint by the offender that he was bullied at work by his boss, of hearing "his [boss'] voice screaming verbal abuse"), and in any event has not been the subject of diagnosis. In fact, Dr Nielssen all but excluded this as the offender "did not offer a delusional explanation for the experience, and no other abnormal beliefs were elicited suggesting the presence of an underlying or emerging psychotic illness" (report dated 7 August 2020, p 8). Dr Nielssen confirmed in his later report, dated 27 February 2021, that there were "no objective features of psychotic illness during the recent interview" (p 5). And, for completeness, it should be noted that Professor Greenberg did not suggest that the offender suffered from a psychotic illness.
It follows, from the findings that I have made and the absence of a clear diagnosis of psychotic illness, that I do not accept the submission made by the Crown that the presence of auditory hallucinations, such as they are, was relevant to the question of whether the offender might pose a danger in the community and, therefore, a material and important sentencing consideration.
I will next deal with the offender's submissions that he suffered from - and continues to suffer from - a depressive illness.
By way of summary, the submissions of the offender reduce to the following three propositions: (a) that the offender suffered from, and continues to suffer from, an enduring and chronic depressive illness; (b) there are a range of symptoms produced by that condition; and (c) those symptoms were "enduring and continuing in the moments of the killing" and made some contribution to him doing so.
The evidence establishes, and I find, that the offender commenced suffering from depression from around 2012. (Where these reasons describe the condition as a "depressive illness", that expression is used synonymously with "depression"). That was essentially the diagnosis made by a psychologist, Navin Goonniah, in a report dated 10 July 2012: the offender was, upon presentation, said to have "symptoms consistent with an Adjustment Disorder with a Moderate Depressive Episode" (Exhibit 1, p 65). The cause for the offender suffering from that condition was a consequence of him being "bullied" in the workplace. Since that time, the offender was similarly diagnosed: for example, in a report dated 13 May 2013 from psychologist Jignasha Khatri, the offender was reported as having symptoms "consistent with Chronic Adjustment Disorder, with mixed depression and anxiety" and that was also the diagnosis made by a consultant psychiatrist, Dr Ishrat Ali when he treated the offender during 2015. (Consistent with this background medical material, Dr Nielssen also diagnosed the offender as suffering from a depressive illness when assessed by him in 2020: further detail about this assessment, and the opinions expressed by Dr Nielssen are addressed later). I also accept and find that the offender continued to suffer from symptoms of depression up to the time that he killed Ms Nirupama. (To the extent that these continuing symptoms were raised to be relevant to the question of "hardship in custody", they are dealt with in that context: see [136]ff, below).
The offender also suffered from pain in consequence of an injury that he suffered to his neck. The evidence is not altogether clear but apparently this injury occurred in late 2016. In consequence of that injury the offender underwent surgery (described as a cervical decompression) in April 2018. Despite this surgery, the offender continued to suffer ongoing pain in his cervical spine and sought treatment from a pain specialist. I also accept and find that the offender continued to suffer from symptoms of pain referable to the neck injury up to the time that he killed Ms Nirupama. (Again, to the extent that these continuing symptoms were raised to be relevant to the question of "hardship in custody", they are dealt with in that context: see [136]ff, below).

[17]

The symptoms of the depressive illness

The next issue is the nature and extent of the symptoms that resulted from the depressive illness, with particular attention to the period leading up to when the offender killed Ms Nirupama. Speaking generally, there is no doubt (and I find) that the offender's symptoms from that condition varied. It may be accepted (and I also find) that the condition was "chronic" - in the sense that although the symptoms fluctuated, at least some of the symptoms persisted. But the diagnosis and descriptions only go so far: it is the nature of the symptomatology that is, in the present context, the most important.
In this last respect, the focus of the submissions (which were principally - but not exclusively - directed to the first of the principles in De La Rosa) was on the period leading up to the killing, albeit informed by the historical course of the condition.
A purpose of the offender's submissions - directed to how the offender was presenting in this time period - was as a step towards demonstrating a connection between the various symptoms alleged to have been suffered by him as a result of that condition and the killing of Ms Nirupama. At the outset, it should be emphasised that this - ultimate - task is not altogether straightforward, for two reasons: first, the offender did not give evidence; and, secondly, although the offender relied upon opinion evidence from psychiatrists who had been qualified on his behalf, to the extent that such evidence was directed to this particular issue, it was extremely confined and somewhat generally expressed.
Thus, the immediate task (viz., identification of the symptoms of the depressive illness) being undertaken essentially involves reconstructing the offender's presentation in the period leading up to the murder from the medical records that were tendered. In this respect, although I have considered the records tendered spanning many years, I will pay particular attention to the material from late 2018 as well as the expert evidence qualified by the Crown and offender: the material in this period was argued to be (and in my view was likely to be) the most useful evidence to throw light on the nature and extent of the offender's symptoms referable to his depressive illness. In this period, the following material was relied upon by the offender as relevant: 1. Report from Dr James Yu dated 13 November 2018: Dr Yu noted that there were ongoing complaints of neck and lower back pain, and that the offender continued to see his clinical psychologist once per month and was consulting a new psychiatrist. In relation to treatment, Dr Yu recommended a "multidisciplinary pain management approach" and to continue with psychological/psychiatric treatment and the medication that had been prescribed. 2. Report from Dr Yajuvendra Bisht dated 7 February 2019: Dr Bisht was the offender's treating psychiatrist (following the retirement of Dr Ali). Relevantly, Dr Bisht noted: "Depressive [symptoms] continue in partial remission but somewhat better than last time". (It should be noted that there is no earlier report in evidence from Dr Bisht). Dr Bisht recommended a continuation of "the same medications" and counselling. 3. Report from Dr Christopher Canaris dated 21 March 2019: Dr Canaris was a consultant psychiatrist qualified by the solicitors representing the offender in relation to his personal injury claim arising out of what was alleged to be harassment and bullying in his workplace. Dr Canaris diagnosed the offender as suffering from a persistent depressive disorder, and noted that the offender reported symptoms that included feeling helpless, hopeless and worthless with thoughts of dying associated with loss of confidence, loss of energy and motivation, diminished self-care, social withdrawal, insomnia, fluctuating appetite and weight, and loss of libido while presenting with a flat and restricted affect. 1. Report from Dr James Yu dated 28 March 2019: Dr Yu noted the offender presented with persistent neck, right arm and lower back pain and that the offender was "battling depression and anxiety".
The offender also relied upon the opinions expressed by Dr Olav Nielssen, consultant psychiatrist, in his reports dated 7 August 2020 and 27 February 2021.
In the 2020 report, Dr Nielssen diagnosed the offender as having a "depressive illness" - a diagnosis that Dr Nielssen based upon the symptoms described by the offender, "the information in the various medical records and some aspects of [the offender's] presentation" during the examination conducted. In terms of symptoms, Dr Nielssen reported as follows: He reported long-standing low mood, anxiety, lack of energy and motivation, interrupted sleep, irritability and impairment in mental performance. He has seen a psychologist for depression intermittently since late 2012 and has been under the care of a psychiatrist since 2015 and had been treated with antidepressant medication since at least that time. His presentation during the recent interview was consistent with his appearance in the recordings made by the police, and he did not appear pervasively depressed …
Given the offender's submissions, and the self-reporting of "impairment in mental performance" to Dr Nielssen, it is useful to note the following matters from the mental state examination performed by Dr Nielssen during the consultation. Relevantly, in the report, Dr Nielssen said of the mental state examination: … He became animated in describing the events, but was not irritable and he did not seem especially depressed during the interview, although he became agitated and appeared distressed when reflecting on the events surrounding his wife's death. His answers seemed relatively fluent and spontaneous, and the interpreter did not report any abnormality in the form of his speech … [The offender] was alert and maintained attention for the duration of the interview. His registration and retrieval of information was unimpaired, from his responses to questions and the history he was able to provide. His overall intelligence was estimated to be in the normal range …
Notwithstanding these observations, Dr Nielssen expressed the opinion that the offender's "abnormal state of mind affected his perception of events, as chronic depressive illness is associated with a pervasively negative outlook in which the affected person's circumstances appear worse than they actually are" (p 9).
The offender was further assessed by Dr Nielssen on 24 February 2021, and Dr Nielssen prepared a report dated 27 February 2021.
When assessing the offender's mental state, Dr Nielssen considered that the offender "did not appear especially depressed or anxious, nor was there obvious lability of mood" and, later, that the offender "did not seem pervasively depressed" (report pp 4-5). In view of his assessment of the offender, Dr Nielssen revisited his diagnosis: he considered that any depressive illness was "in remission" (report p 5).
In relation to the mental state examination of the offender, aside from observing that the offender did not present as "especially depressed or anxious" etc., Dr Nielssen also noted the following in connection with the offender's cognitive functioning (report p 4): [The offender] maintained attention for the duration of the interview and his concentration seemed unimpaired. Cognitive function was not formally tested, but his registration of information seemed unimpaired from his generally appropriate responses to the questions put to him … He complained of poor memory, but there was no apparent impairment in his day to day memory, for example, his memory of the names of previous doctors, his lawyers, his medications and in his complaints about the lack of progress in the request for a brain scan and for medical attention.
In relation to these complaints of impairment in cognitive function, Dr Nielssen remarked: "He complained of subjective impairment in cognitive function, but there was no apparent impairment in his ability to retrieve information about his case and health care" (report p 5).
Finally, Professor Greenberg's opinion was largely the same as the other diagnoses. In his report, dated 27 July 2021, he diagnosed the offender as suffering from: "Mood disorder: Chronic Adjustment Disorder with depressed and anxious mood" (report pp 43 and 45). At the time of the alleged offence, Professor Greenberg's opinion was that the offender was "suffering from depression", and he also considered that the offender's capacity to understand events or judge whether his actions were right or wrong "was not substantially impaired by abnormality of mind arising from the underlying condition", and nor was his capacity to control himself (report pp 50-51).
The offender submitted that some of his symptoms were recurring (that is, they "kept arising") - described as the offender being: "anxious, panicky, depressed, frightened, fear, thought-disordered". It was further submitted that there was "every reason to believe that those characteristics of his illness were enduring and continuing in the moments of the killing". In what follows I deal with the nature and extent of the offender's submissions referable to the symptoms of his depressive illness. (I deal with material contribution and related issues later: see [113], below).
In my view, informed by the offender's historical presentation and symptoms and with focus upon the period leading up to the killing, I consider that (in line with my earlier findings: see [96], above) the offender's symptoms fluctuated but included some symptoms of low mood, anxiety, loss of energy and motivation, interrupted sleep, irritability and a "negative outlook". I am not prepared to make any more particular findings about the severity of these symptoms and it would be, in my respectful view, somewhat artificial to do so given how this task - of necessity - has been approached.
I am not prepared to accept, however, that there was any significant or material impairment in "mental performance" as Dr Nielssen suggested. That is for the following reasons: first, Dr Nielssen did not explain what was embraced by this somewhat general term; secondly, his opinion (and report more generally) did not identify the basis for that opinion, at least not clearly and in a way that made it possible to assess and critically analyse the basis for it; thirdly, Dr Nielssen did not satisfactorily reconcile - or attempt to reconcile - the clinical findings (essentially, what he reported of the offender's mental state examination) and the suggested impairment in "mental performance"; fourthly, Dr Canaris did not, at least expressly, identify that suggested symptom as being present when assessed in the period shortly prior to the killing.
Further, although the offender submitted that a symptom of his condition was that he was "thought-disordered", this term was not the subject of definition and I am not prepared to accept that he suffered from that suggested symptom - except in the limited way that I have described above. To the extent that this submission sought to pick up Dr Nielssen's suggestion that the offender had an "abnormal state of mind", this phrase was later explained by Dr Nielssen to involve depression resulting in a "pervasively negative outlook" and not resulting in the offender being thought-disordered: indeed, earlier, Dr Nielssen excluded the offender as having any form of mental illness "that might have deprived him of the awareness that his actions were wrong" (report p 9).

[18]

Material contribution to the offence and reduced moral culpability

In the written submissions, the offender argued that his depression "contributed to the offending at least to some degree", which was later submitted to be a reduction in his capacity "to judge the seriousness of his actions, [which] made it more difficult to control his emotions and led him to be unempathetic to his victim". It was also submitted that "his moral culpability is diminished as a consequence" (offender's written submissions at [40]-[41]). (I have earlier dealt with moral culpability in this respect when dealing with this submission in the context of the objective seriousness of the offending: see [53], above).
I do not accept this submission for the following reasons. First, I do not accept that these matters were significant or material features of the offender's depressive illness and none of the evidence that I have referred to in the period leading up to the killing make reference to any of these matters. The offender did not identify, in writing or during submissions, any evidence directed to establishing the particular matters argued. Secondly, to the extent that this submission might implicitly be anchored in Dr Nielssen's opinion that the offender's "abnormal state of mind affected his perception of events, as chronic depressive illness is associated with a pervasively negative outlook in which the affected person's circumstances appear worse than they actually are" (report dated 7 August 2020, p 9), this is exceedingly general evidence essentially demonstrative of the fact that the offender would have a "negative outlook". That is, in my respectful view, a distinctly different assessment to what the offender submitted - namely, that there was a reduction in capacity "to judge the seriousness of his actions, made it more difficult to control his emotions and led him to be unempathetic to his victim".
The offender also submitted that it was "critical" to have regard to the fact that, consistent with what Dr Nielssen is reported to have stated - namely, that the offence itself was "evidence of lack of proper self-control" and that the proper finding to be made is that the offender would not do this "unless there was something wrong with him mentally". It was, ultimately, submitted that the depressive illness affected the offender's "perception of events … made him anxious … made him startled" and was "a factor in his overreaction to the confrontation he was involved in" with Ms Nirupama.
In my respectful view, Dr Nielssen's evidence falls well short of providing support in the way argued. The only suggestion made by Dr Nielssen dealing with possible contribution of the depressive illness to the offender killing his wife was his opinion, following the diagnosis that he made (and as I have earlier pointed out), in the following terms (report dated 7 August 2020, p 9): His abnormal state of mind affected his perception of events, as chronic depressive illness is associated with a pervasively negative outlook in which the affected person's circumstances appear worse than they actually are.
See also, in this respect, [112] above where I dealt with the suggestion that the offender was "thought-disordered".
Nor do I accept, as was argued, that the offence itself evidenced absence of proper self-control and that, necessarily, the reason for this was the depressive illness. I am, nevertheless, prepared to accept that the depressive illness was a factor - albeit a very slight factor - in his overreaction to the confrontation he was involved in with Ms Nirupama. In that limited way, I accept and find that the offender's depressive illness contributed to the offending.
I accept, therefore, given that finding, and as the Crown essentially submitted (Crown addendum submissions at [40] and [45]), that there is a very slight reduction in the offender's moral culpability.
Whilst addressing moral culpability, I add the following. I accept (and have taken into account), as the Crown submitted, that the offender knew that the death of Ms Nirupama would deprive their children of their mother which is also relevant to moral culpability: R v Lewis [2001] NSWCCA 448 at [67]; Sheiles v The Queen [2018] NSWCCA 285 at [29]-[40].

[25]

Poor health

It is well-established that illness or poor health can mitigate the type and length of a sentence. As recently explained in Geraghty v The Queen [2023] NSWCCA 47 at [106] ('Geraghty'), when illness or poor health are relied upon: … there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life": R v Achurch. The second was identified by King CJ in R v Smith: The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his [or her] state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. (footnotes omitted)
The offender suffers from an historic neck injury, and its ongoing effect. The offender's written submissions did not refer to this condition as impacting upon his time in custody although during oral submissions it was argued that, "prison is going to be harder than it would be for people much younger and fitter" without that problem. It was not argued that any treatment that the offender might require in the future cannot be provided by Justice Health, the body charged with responsibility for providing health services to "offenders and persons in custody" (as to which see s 236 of the Crimes (Administration of Sentences) Act 1999 (NSW)).
There was no particular evidence relied upon to demonstrate that, by reason of the neck injury and its sequelae, the offender's time in custody will be a greater burden upon him. Nor was there any evidence that, by reason of his time in custody, there was a serious - or indeed any - risk "of imprisonment having a gravely adverse effect on the offender's health" in line with the authorities to which reference has been made. I am not prepared to mitigate the sentence on account of this condition alone, or in combination with the depressive illness.
In relation to the depressive illness, the offender essentially submitted that the custody or sentence would weigh more heavily upon him and also drew attention to the medical notes from Justice Health: in this last respect it was submitted that, following initial presentation, he had been placed "on a waiting list for entry into the mental health ward", and was currently "housed in the mental health part of the prison". There was no specific submission that, aside from being placed on a waiting list for entry into the mental health ward, any treatment that the offender might require cannot be provided by Justice Health. In this respect I note by way of example, that, from the Justice Health material, the offender has undergone psychiatric/mental health consultations on 3 and 7 April, 2, 7 and 21 June and 7 July 2023 (the records appear to have been printed on 1 August 2023). During the course of these consultations, the notes record that the offender had been using medication.
I am prepared to accept (notwithstanding there is no evidence specifically directed to this issue) that, given the depressive illness, his time in custody will - to a degree - be a greater burden upon him, and I have taken this into account.

[27]

Delay

The offender submitted that, as he has been in custody for over 4.5 years, he has been "in a state of uncertain suspense for that time" (offender's submissions at [48]). Further, to the extent there has been some delay, that was due to a range of factors, including the need to carry out "appropriate investigations to ascertain the correct charge for him to plead to" as well as delays in the criminal justice process that included adjournments of his sentence for which he was not responsible (offender's submissions at [48]).
The relevance and significance (if any) of delay in the sentencing of the offender depends on all the circumstances. The relevant principles were set out in Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114 at [58]-[64] ('Scook') and in Elchiekh v R [2016] NSWCCA 225 at [56].
Relevant to the submission that the offender had been in a state of "uncertain suspense", in Hill v The Queen [2017] NSWCCA 136 at [193] it was said: Delay will ordinarily be a mitigating factor on sentence where (inter alia) it has resulted in significant stress for an offender, or left him or her, to a significant degree, in uncertain suspense: Scook v R [2008] WASCA 114 at [57] and following per Buss JA, cited by Bathurst CJ in Giourtalias v R [2013] NSWCCA 216 at [1787]-[1788]. Because delay is a mitigating factor, there is an onus upon an offender to establish that the consequences of such delay are as he or she asserts: Sabra v R [2015] NSWCCA 38 at [47] per Bellew J (Meagher JA and Schmidt J agreeing).
In relation to the offender's submissions, the following matters should be noted. First, whether, and if so to what degree, any delay has impacted upon the offender is unknown: the offender did not give evidence and no other evidence was identified in order to make findings about such matters. In those circumstances, I am not prepared to find that he has been in an "uncertain suspense" as argued. Secondly, and separately, in connection with the submission that there has been delays in the criminal justice process "that included adjournments of his sentence", the chronology that was Annexure A to the Crown submissions records that the offender's original sentence hearing was to occur on 8 September 2023, but was adjourned. (This issue was also addressed in the offender's solicitor's affidavit - Exhibit 3). The reason for the adjournment, however, should be stated: shortly prior to the date allocated, the offender sought - and the Crown consented to - an adjournment of the sentence hearing because the psychiatrist qualified by the offender (Dr Antony Henderson) was unable to prepare a report by that time; and, as it happens, no such report was relied upon by the offender at his sentence hearing. Thirdly, and overlapping with the second matter, much of the delay related to investigations so as to determine the appropriate charge for the offender to plead to. In my respectful view, this is the "normal operation of the criminal justice system", in the sense discussed in Scook at [61]. Indeed, that was essentially the way that the offender sought to characterise his conduct when explaining the "primary cause of the delay in this matter proceeding to a guilty plea" (offender's submissions at [34]).

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