R v Hosseiniamraei

Supreme Court of NSW|2016-08-17|Before: Hulme J

Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2015/16137

Judgment

HIS HONOUR: Leila Alavi was a 26 year old woman who was born in Iran. She and her sister Mitra left Iran seeking a better way of life, away from violence. She lived in Turkey for a few years where she met and married Mokhtar Hosseiniamraei in 2010. They came to Australia later that year. Mitra followed two years later and was the only other member of the family who lived here.
Mitra described Leila as "beautiful and kind". They saw each other every day and loved shopping and eating together. Marjan Lotfi, another sister who lived in the United States of America, described her as a "loving and kind person who was always laughing with her friends". She was looking forward to Leila coming to visit her.
Leila was brutally killed by her husband on 17 January 2015.
Mr Hosseiniamraei ("the offender") has pleaded guilty to the murder of Ms Alavi. It is a crime that carries a maximum penalty of imprisonment for life and a standard non-parole period of 20 years. These are legislative guideposts to which I must have regard along with all of the facts and circumstances of the case.

Background

The offender, who was also born in Iran, met Ms Alavi in Turkey 2009 and they were married in 2010. They came to Australia that same year and lived at Toongabbie. During the course of their relationship there were arguments and, on occasions, the offender was physically violent towards her. They generally resumed their relationship after such events. However, it would seem from some statements tendered in the defence case that Ms Alavi moved out in about August 2014.
On 25 October 2014 Ms Alavi reported an incident to Auburn police. She told them that the offender had said to her in a telephone call, "You're a slut, I'm going to kill you and I'm going to fix up your sister and friends who have been teaching you this". An Apprehended Domestic Violence Order ("ADVO") was made which included conditions that the offender not assault, molest, harass, threaten, interfere, intimidate or stalk Ms Alavi.
After Ms Alavi had moved out of the Toongabbie home she went to live with a relative. At some stage the offender also moved out and went to live with his sister and brother-in-law at West Guildford. He started working with his brother-in-law in his painting business.
Ironically, it would seem that despite the past violence and the threat to kill in October, Ms Alavi still cared for the offender's well-being. After they separated she still kept in contact; performed domestic chores for him; and in the days or weeks before she was killed she expressed genuine concern for his mental health.

The murder

Ms Alavi worked as a hair dresser at Benjamin's Hair Studio in Auburn Shopping Village. She often parked her car in the underground car park beneath it when she was at work.
In the early afternoon of Friday 16 January 2015 Ms Alavi spoke to the offender on her phone while she was at work. She became visibly upset and told a colleague that the offender had threatened her. She said, "He said he is going to kill me and all of us. Probably he is watching too many movies". She contacted her telephone service provider soon after and changed her number, telling a friend that this was in order to prevent the offender from contacting her.
Statements tendered in the defence case indicate that the offender was supposed to go to work on a painting job on Saturday 17 January 2015 with his brother-in-law and his (the latter's) father but he did not turn up.
At about 9.25am that day, Ms Alavi was at work and attending to a client. She became aware of the offender's presence in the shopping centre. She stopped what she was doing and a fellow employee took over. She said that she was going to speak to the offender and she was last seen walking down a ramp which leads into the underground parking lot.
When she had not returned after about 20 minutes a co-worker went to look for her. Ultimately she came across Ms Alavi's car in the underground car park and found Ms Alavi sitting in the driver's seat with a large amount of blood around her head and shoulders. The co-worker ran, calling for help. Police and an ambulance came. Ms Alavi was confirmed as deceased.
An autopsy examination by a forensic pathologist revealed that Ms Alavi had died as a result of multiple stab wounds caused by scissors. There were 56 wounds in total to the face; the front, back and right side of the neck; the left arm/shoulder; and a particularly high number over the upper front of the chest. Numerous defensive injuries were present on both hands.
The offender was found in Guildford West that evening. He was arrested and he participated in an interview with the assistance of an interpreter. In short, he admitted that he had killed his wife although at no stage did he really explain what had happened and why he had stabbed her so brutally and so many times. He said that it occurred after they had sat in her car and spoken for some unspecified time. When asked to describe the manner in which he had used the scissors he said, "I was angry. I cannot recall." Earlier in the interview when asked how Ms Alavi was when he left her he said, "I don't know. I was angry".
He told police that he had travelled by bus from Merrylands to Auburn that morning. He obtained a pair of scissors by taking them from a supermarket in Auburn a short time before the incident. He took them because, "maybe I wanted to hit myself, I don't know". He said he was meeting up with Ms Alavi because he needed work clothes from her car.
The offender said, in effect, that he had not eaten for 10 days and he had had nowhere to sleep in that time. He referred to the authorities having provided help to his wife but not to him. He spoke of living "in the jungle"; he clarified that he meant at Parramatta Lake. He said, "I live like an animal in the jungle because you haven't, and you didn't give me a place to live". He also spoke of being at a mental hospital; having depression; crying day and night; and that it had been six months since his wife had left him.
The offender said that he spoke with his wife every day on the phone, the last occasion being the day before. They saw each other once or twice a week. He had last seen her at a football game (Iran v Qatar at ANZ Stadium) two days before.
At various points in the interview he explained why he had killed his wife: Q 52 Why did you hit her? A Because, um, when we marry um, we have commitment, moral commitment towards one another. In this country this means nothing. For us it is very important your wife to be with you, your partner or wife to be with you until you divorce her, until you haven't divorce her. Q62 Where did you hit her with the scissors on her body? A In her heart and in her neck. Because she did not obey the rule of the marriage. Is she alive? Q113 Why did you kill Leila? A Because we were married and before divorce urn, she broke the contract. I could not tolerate it. … And ah, I could not forget it … I love her very much. Q189 So when you were in the car talking with Leila, what is it that she said that made you mad? A It's like, that I am not her husband. She didn't care for me. She answer back with, ah, to me. Q190 So when she answered back to [you] how did that make [you] feel? A How, how a man if he is a man ah, would feel when a [woman] answer her, answer him back like that. Q191 Is that when you struck Leila with the scissors? A Certainly should be like that. Q220 What made you hurt Leila instead [of] hurting yourself? A Maybe it was her reaction or the way she was behaving. I don't know.
The recording of the interview was tendered at the sentence hearing in addition to the transcript. Mr Smith SC for the offender sought to demonstrate that at various stages of the interview his client became quite emotional. He submitted that this would put into context some of the things that were said. Two things were particularly apparent from my viewing of the recording. First, it seems the offender was unaware that Ms Alavi had died until at Q64 he was told that she had passed away. Immediately, and at various stages thereafter, he was quite emotional, sobbing and putting his head down onto his arm which was on the table in front of him. I take this to indicate that the enormity of what he had done was registering with him. Secondly, when stating the various things I have just quoted, his physical demeanour (as limited as it can be judged when speaking through an interpreter) appeared to be quite clear and assertive.
After the interview the offender was taken to hospital to obtain anti-depressant medication. While there he began to complain of pain and was provided with treatment. He was then returned to the police station. In addition to his admissions, DNA analysis of various relevant items established a strong case that the offender was Ms Alavi's killer.

Other offences to be taken into account on a Form 1

The offender has asked that when he is sentenced for the offence of murder I take into account his guilt in respect of four further offences which I will detail shortly. I confirm that I will do so.
The first is the contravention of the ADVO. I have taken into account as an aggravating feature of the murder that the offender was, by court order, not even supposed to assault (etcetera) Ms Alavi so this offence should not lead to any further increase in the sentence.
The other three offences concern a completely unrelated incident that occurred on 15 December 2014 when the offender was at the Parramatta branch of Housing NSW seeking accommodation. He behaved in a hostile, aggressive and abusive manner towards staff who were simply trying to do their job in helping disadvantaged members of the community. In the course of all of this he caused some (relatively minor) property damage. The offences are one of behaving in an offensive manner in a public place and two of recklessly damaging property. Without intending to downplay the horrible experience he imposed upon the staff of Housing NSW, in the scheme of things these offences are relatively minor in comparison to the primary offence.

The offender's background and personal circumstances

The offender was born in Iran in 1981 and so he was aged 33 at the time of the offences. He has no previous criminal convictions. For that reason he must be regarded as a person of otherwise prior good character, but that is tempered by the undisputed fact of his prior physical violence towards the deceased.
His father was a farmer and his mother a housewife. He has two sisters and two brothers. He completed 10th grade of schooling at the age of 17 and served in the military. He is of the Baha'i faith and, like other people of that faith in a predominantly conservative Islamic country, he and his family experienced animosity, discrimination and prejudice including in education, employment and their general ability to interact and function in society.
The offender met a woman in about 2005 and they began dating. She was from a conservative Muslim family so they had to keep their relationship a secret. After a year he thought it would be appropriate to inform the family, otherwise they could never get married. From that point he did not see this woman for two or three months; he later learnt that she had been mistreated by her family as a result of the relationship. They met up again and she came to live with him but after a short time her family came and took her away. Prompted by this experience the offender decided to leave Iran in October 2007 and sought asylum in Turkey. It was there that he met the deceased and they married on 20 January 2010. They came to Australia later that year.
The offender was seen by Dr Richard Furst, consultant forensic psychiatrist, on 24 June 2015 and on 9 June 2016. Dr Furst's report of 7 July 2016 included an account of the offender's life in Iran and Turkey that is consistent with what I have set out above.
The offender told Dr Furst that he had felt depressed and hopeless in his teens and early 20's and that there were self-harming and suicide attempts in Iran and in Turkey. After arriving in Australia he was unable to find work and he developed further symptoms of depression. He was admitted to Cumberland Hospital from 10 to 19 November 2014 after his mood deteriorated following the breakdown of his marriage; he was depressed and had suicidal thoughts. He said that he was essentially homeless after being discharged and was living rough in the Parramatta area. Later in the report it is said that he was sleeping "on the streets" for some days around Christmas 2014 and felt like a burden on his sister who he had been living with in Guildford.
The offender also told Dr Furst of having a significant drug problem. He smoked hashish in Iran from the age of 16 and used morphine from the age of 19. He smoked cannabis and used the drug known as "ice" in Turkey. In Australia he was using heroin and cannabis daily and ice on most days. He was taking Oxycontin for which he did not have a prescription. He was also gambling.
As to the killing of his wife, the offender said that he "gave up and decided to commit suicide" on 17 January 2015. Dr Furst quotes him as having said, "There was nothing left for me. I had no life". He said he was crying, could not sleep and felt lonely. He had "lost everything, my wife, my life".
However, he was unable to explain why his apparent depression and suicidal thoughts resulted in the death of his wife. He said, "I don't know. Suddenly everything changed." He claimed that he had brought the scissors with him to kill himself.
He is said to have "regretted his actions", saying that he had lost everything; he loved her; he wished he had killed himself; and that he cried every night.
The offender has been on prescribed medication since being in custody for his depressive symptoms and to help him sleep. He reported that his mood had improved. He said he accepted and admitted his actions. He said, "I feel sinful. A burden. A scar. I feel dead. A human being lost their life. Why wouldn't I be sorry? … How can I look into my parents' eyes? Her parents' eyes? It's very difficult."
To specific questioning by Dr Furst, the offender maintained that his wife was not obeying the "rule of marriage". He believed that she had "used him" to come to Australia. He said, "All the things she did. Difficult circumstances. That's what created depression for me … in my culture, you don't normally talk about your wife's betrayal." He felt "pushed" by her apparent "betrayal" and her actions in taking out an ADVO.
Dr Furst reported that the offender claimed to have been abstinent from drugs while in custody and did not want to use them again. He was open to engaging in counselling or other programs in custody to address his offending. He wanted to "compensate for what I did" by trying to help society.
Dr Furst reviewed the medical records of Cumberland Hospital in relation to the offender's admission in November 2014. They included that he felt depressed and hopeless, apparently in a reaction to his wife leaving him and taking out an ADVO a month before. Various diagnoses were indicated by the treating doctors. One doctor interviewed Ms Alavi who said that she left the offender because of domestic violence; that he had a history of substance abuse; and that he had been self-harming in the past. Notwithstanding this she visited him while he was in the hospital.
Dr Furst also reviewed records of a medical centre the offender attended following his discharge from Cumberland. Treatment with Avanza and Seroquel were continued. He was referred to a psychologist. The records of Justice Health of psychiatric assessments and treatments after the offender came into custody confirmed, amongst other things, continuing symptoms of depression but continued treatment with prescribed medication.
Dr Furst made diagnoses of chronic dysthymia; borderline personality disorder; substance use disorder; and adjustment disorder with depressed mood. He considered that the offender did not meet criteria for diagnosis of a major mental illness such as bipolar affective disorder or a major depressive disorder. The offender's use of drugs was thought to have probably exacerbated his underlying mood problems, personality dysfunction and adjustment difficulties. There were no indications of an intellectual disability or that the offender was mentally ill.
A particular portion of Dr Furst's report bears quoting: "The available history and his comments to police after his arrest suggest he felt that his deceased wife Leila had violated the 'moral commitment' they had towards one another, her perceived betrayal making things intolerable for Mr Hosseiniamraei. He was clearly angry towards his wife at the time of the offence, reflected in the threats towards her prior to her death and the frenzied attack upon the victim with 56 stab wounds to [the] head, neck, torso, left shoulder and upper arm. Although his depression and unstable personality disorder probably contributed to his anger and offending behaviour, non-psychotic motivations of anger, jealousy, feeling dishonored and revenge were probably more relevant in terms of his motivations and moral culpability. He continues to refer to his actions as an 'accident' that was out of his control, notwithstanding some expressions of regret and remorse."
As to the offender's prospects of rehabilitation, Dr Furst considered that they were "reasonable in the circumstances, notwithstanding the obvious serious nature of his offence". Although now abstinent from drugs of abuse, he considered that therapy, treatment and rehabilitation programs were required. Treatment such as the Violent Offenders Treatment Program and/or individual counselling with a clinical psychologist was required in relation to his attitudes towards women, impulsivity, anger issues and his emotional instability generally. English classes, vocational training and work programs would also be of benefit to him. Dr Furst thought that the offender was amenable to undergoing such programs and treatment.
Following his arrest the offender was held at the Metropolitan Special Programs Centre. An incident occurred there in the showers on 21 March 2015 when he was assaulted by three Polynesian inmates apparently because of the charge that he faced. He was taken to hospital and diagnosed with a broken nose, a cut eye requiring stitches and suspected deep bruising of the chest. He was transferred to a protective custody environment, albeit one of the less restrictive forms of such (SMAP).

Seriousness of the offence of murder

The Crown did not contend that the murder fell within the worst category of cases which would warrant consideration being given to imposing the maximum penalty of imprisonment for life. That concession is both fair and reasonable.
It was, however, submitted by the Crown Prosecutor that the offence was above the middle of the range in terms of its objective seriousness. Five features were said to support that assessment but only one of them was really controversial. That was the Crown's submission that the murder was not impulsive but was preceded by the threats to kill about three months before and on the day before. There was also the fact that the offender had travelled to Ms Alavi's place of work that morning and acquired a pair of scissors on the way.
Mr Smith SC accepted that it was open to find that his client acted with an intention to kill. But it was his submission that I could not be satisfied beyond reasonable doubt (and the fact that matters adverse to the offender must be proved to that standard is important) that such an intention was formed prior to the offender being in the shopping centre, or in the deceased's car. He referred to a number of aspects of evidence that supported his submission but I need not refer to them because I accept it.
I accept that the offender had made threats in the past. But the evidence is not such that I could be satisfied that the killing of the deceased was something that was seriously planned or premeditated. In making the previous threats, it must be the case that he had thought of the prospect. But his thinking seems to have been quite chaotic in the weeks and days leading up to 17 January 2015. It seems more likely that an actual intention to kill Ms Alavi only really crystallised on the morning of 17 January 2015. That does not make the crime any less serious. It was a terrible crime that would have been worse if there was evidence that established beyond reasonable doubt that it was planned in advance.
Mr Smith SC also made a submission that I would not be satisfied that the intention was formed before the offender and the deceased were in the car. However, he prefaced it be saying "it may matter little" and I think that is right.
He conceded on his client's behalf that "this is a serious case of murder because of, at least, the manner in which the deceased died, the use of the weapon and the fact that it was committed in the context of an estranged domestic relationship". He submitted that the objective seriousness of the offence is at or about the mid-range.
The number of stabs, coupled with the fact that they were predominantly directed towards vital parts of the deceased's body in what must have been a ferocious attack, indicates that the offender's intention can only have been to kill and not simply to cause serious harm. It should be borne in mind as well that he was a larger man attacking a slightly built defenceless woman who posed no threat to him. It was carried out in a confined space from which she had no chance of escape. Her dying moments must have been utterly terrifying.
In my assessment, the objective seriousness of this offence is more than contended on behalf of the offender. In the scheme of things it is not at or near the worst case category but it is above the middle of the range.

Moral culpability

In addressing the offender's moral culpability, the Crown Prosecutor submitted that, whilst there was evidence of occasions after the separation when the offender and the deceased appeared to engage amicably, this should be seen "in terms of the dynamics of the relationship, … a man who was quite happy when she did as he expected her to do, but who resorted to violence when she failed to meet those unrealistic and quite improper expectations". The example cited was the occasion when the pair attended a football match on 15 January 2015. I accept that there is force in the submission.
The offender's moral culpability is less than it otherwise might be on account of his mental condition as described by Dr Furst. But, having regard to what Dr Furst said in the passage from his report that I have quoted, this is not to any great extent. He killed his estranged wife in the most callous and brutal circumstances and in the context of a history of physical violence and threats to kill her. He was not deterred by being subject to an ADVO. His attempt to justify his actions by blaming Ms Alavi for her disobedience of the "rule of marriage" which he said he "could not tolerate" discloses a breathtakingly arrogant and misogynistic attitude towards the right of his wife to choose her own destiny.

Other matters affecting the assessment of sentence

I accept that the offender regrets causing the death of the deceased. In a legal sense he has accepted responsibility. I am unable to find that he is genuinely remorseful, however, having regard to what I have just said about his attitude of holding her as partly blameworthy.
It is a statutory mitigating factor if an offender has "good" prospects of rehabilitation. In this case there is the opinion of Dr Furst that such prospects are "reasonable". That was said after the doctor noted that the offender appeared motivated to engage in counselling and programs and after he set out quite a number that the offender should engage in. I accept Dr Furst's opinion, qualified as it was. The offender did not give evidence in the sentence proceedings and so I am not placed in a better position to assess the offender's motivation to seek treatment and engage in rehabilitation programs.
Dr Furst was not prepared to offer anything definitive on the offender's risk of reoffending. He indicated that when an offender is facing a lengthy sentence for murder such a prediction is fraught with difficulty. Much will depend upon the offender's progress in custody over a substantial period of time.
The offender's early plea of guilty is something that I am required to take into account. In accordance with accepted sentencing practice it will produce the result that the sentence will be 25 per cent less than it otherwise would have been.
General deterrence is a matter of great significance in a case such as this. It is ever so slightly reduced commensurate with the offender's slightly reduced moral culpability on account of his mental condition.
The Courts must consistently denounce crimes of serious violence such as this in no uncertain terms. Those who feel that they are entitled to take advantage of a position of power and dominance in an intimate relationship must know that violence fuelled by anger, jealousy, feelings of being dishonoured, revenge or the like will be severely punished.
Personal deterrence is also of significance as are the other purposes of sentencing of adequate punishment and making the offender accountable for what he has done.
Mr Smith SC submitted that the non-parole period of the sentence should be reduced on account of this being the offender's first time in custody; the onerous conditions of his custody; and the need for a longer period of parole supervision. I have considered that submission. However I am of the view that the parole period I have in mind will be more than adequate to address the last aspect. The other aspects are matters I have taken into account in the assessment of the overall sentence.
The offender has been in custody since his arrest and so his sentence must be backdated to 17 January 2015.

Family victim impact statements

Sentencing proceedings for serious crimes like this necessarily focus a lot on the nature and seriousness of the offence and upon the personal circumstances of the offender. The law requires that. But there is another aspect that should not be ever forgotten. Statements by Mitra Alavi and Marjan Lotfi have informed me of the depth of their sense of grief over the senseless loss of their much-loved sister Leila. They have suffered terribly and will continue to do so. They have my most sincere sympathy.

Sentence Convicted. For the murder of Leila Alavi (and taking into account four further offences), sentenced to imprisonment comprising a non-parole period of 15 years 9 months and a balance of the term of the sentence of 5 years 3 months. The sentence will date from 17 January 2015. The non-parole period will expire on 16 October 2030 and the total term will expire on 16 January 2036. The offender will become eligible for release on parole at the end of the non-parole period. That is a total sentence of 21 years. Without the early plea of guilty it would have been a sentence of 28 years.

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: 25 August 2016

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