R v Payam

Events of 7 July 2014

1. At about 10 o'clock the next morning, 7 July 2014, the deceased went, as arranged, to the Westfield Centre. The offender had already arrived at the centre by that stage, and had gone into Woolworths. There he bought a large kitchen knife which was still in its wrapping when he left the store, but was later concealed in the left sleeve of his jacket. A little over half an hour later the two of them met up and, after a few minutes, in which they were walking around the centre, apparently talking in a normal manner, they went and sat on a couch outside the Myer department store, with the offender sitting to the right of the deceased. The area was covered by CCTV, which showed what happened thereafter.
2. The two of them were talking, sometimes in a reasonably animated fashion, but without any apparent conflict, for about seven minutes. Suddenly the offender got up, put his left arm around the back of the deceased and threw him to the ground, so that he was lying on his back. The offender had the knife in his right hand. He straddled the deceased's upper body and stabbed him in the chest region on at least four occasions. He then sat on the couch beside where the deceased was lying and slashed him again, at least twice. After a short time he got to his feet and started to walk away, apparently dialling on his telephone.
3. He returned to where the deceased was lying on three further occasions. The first time he did so he raised his right arm over the deceased, but it is not possible to discern whether he was again stabbing him. The second time he appeared to be feeling for a neck pulse. On the third occasion he picked up the knife from an ottoman beside the deceased and appeared to stab the deceased before sitting down beside him, still on the telephone. He then stood up, stabbed the deceased twice in the chest, and walked off, leaving the knife in the deceased's chest. Shortly afterwards the offender removed his jacket, pullover and shirt. He told police later that he did this because he was "burning". He was walking around, naked to the waist and talking on his telephone, when the police arrived.
4. The offender made two telephone calls during this time. The first was a 000 call in which he apparently asked for the police and the ambulance. He was said to be in an emotionally heightened state during this call, sometimes yelling and swearing at the operator. He then telephoned Ms E. He told her that he had killed the deceased and that he loved her. It was at about this point that the police arrived. The offender was taken into custody and conveyed to Parramatta Police Station. There he agreed to participate in an electronically recorded interview with the assistance of a Persian interpreter. He declined the services of a lawyer.

The Offender's Interview

1. The interview commenced a little after 7.00pm and took approximately two hours. The offender first gave an account of his background, which I will be describing later in these reasons. He said that the deceased was his second cousin and, although they had never been close, they had enjoyed a cordial relationship. All this changed, he said, when the offender commenced his relationship with Ms E, at which point they became enemies. His own relationship with Ms E was, he said, a very good one. He described his relationship with T as "beautiful", saying that the boy regarded him as his father. He denied that he had ever threatened the deceased, but said that the deceased had once threatened him.
2. The offender admitted to telephoning the deceased the previous day and asking to meet him. He said he wanted to talk about the future of "their" son. The deceased eventually agreed to meet him the next morning at the Westfield Centre. Before meeting the deceased that morning, the offender said he went into Woolworths to buy a drink and saw a knife which he then bought. He was asked why he bought it, and said that he did not know…it was "by accident", as he put it. After he and the deceased had been talking for a while, the offender said the deceased started saying rude things about the offender and E, and spat in his face. The offender lost control, and - to use his own words - said "I think it was Satan that came to me". Later he said that he did not want to kill the deceased, but the deceased had provoked him. He thought that he had stabbed the deceased twice. When asked whether it could have been more than twice, he said "I don't think so". Later he was shown the CCTV of the events, and said that he did not think that he had stabbed the deceased so many times.

Post Mortem Report

1. An autopsy was conducted some time later by the forensic pathologist Dr Duflou. At that time the knife was still embedded in the deceased's chest. Dr Duflou found there had been one stab wound to the deceased's neck and six stab wounds to the chest, as well as three superficial chest wounds. The neck wound was about six to seven centimetres deep. It was the chest wounds which constituted the direct cause of death. Dr Duflou noted that they had caused extensive injury to the interior of the deceased's body, with stab tracks passing into the cervical spine, the chest wall, the heart, the aorta, the left lung, the diaphragm and the stomach. No defensive injuries were identified.

Aggravating and Mitigating Factors

1. I turn to discuss the potential aggravating and mitigating factors as relevant to this offence. In this regard, by far the most significant issue is the extent, if any, to which this killing was premeditated by the offender. As already indicated, the offender told the police in his interview that he had not intended to kill the deceased, but that he had been provoked by the things the deceased said about his wife, and by the deceased spitting at him. As to his purchase of the knife, the offender said that it was "by accident" that he went into Woolworths to buy a drink, and at the same time happened to see the knife and bought it. A little later he was asked whether he had bought the knife to stab the deceased. He answered: "I swear to God that I didn't want to kill him … he provoked me and he said very rude things."
2. When asked what he wanted to do with the knife, he said: "I thought that, if necessary, I could just frighten him."
3. But when asked how he was going to frighten him, he said that his thoughts were "all over the place".
4. This is a particularly difficult issue in the circumstances of this case. As Mr Ierace's submissions point out, there are a number of grossly irrational aspects to this killing. By committing the offence in a public place, and then telephoning 000 immediately afterwards, the offender was placing himself in a situation where he would inevitably face a lengthy prison sentence. His own personal background, which I will be describing later, gave him every reason to dread the prospect of incarceration. Indeed, he said to Ms E when he telephoned her immediately after making the 000 call: "My life is over now…".
5. On the other hand, the objective evidence points towards a killing which was contemplated, at the very least that morning and very possibly the previous evening. I have viewed the CCTV footage of these events on numerous occasions, particularly with a view to discerning whether anything unusual happened in the interplay between the two men immediately before the offender threw the deceased to the ground and started stabbing him. The camera was to the side and back of the men, so the angle is by no means perfect, but you can still get a generally reliable idea as to who was speaking at any particular time, and whether anything unusual was happening.
6. I could discern nothing at all unusual in the interplay between the two men immediately before the offence. Certainly the deceased was the last one to talk, but his hand movements were no more pronounced than previously. As to whether their voices were raised immediately before the killing, there is a conflict of evidence. A Myers employee said that the first time he heard yelling between the two men, they were still sitting next to each other on the couch. A few seconds later he heard screaming and saw the offender leaning over something on the floor, which was clearly the deceased. On the other hand, an elderly man who was sitting on the other end of the same couch, said that the two men were chatting casually, and were not arguing at all, until suddenly the offender pushed the deceased to the ground and started stabbing him.
7. One thing the CCTV footage does show with certainty is that the deceased did not spit at the offender immediately before these events, nor was there any sign of the offender "ducking", as he later told the police.
8. The accumulation of events leads me irresistibly to the conclusion that there must have been a degree of premeditation on the part of the offender, at the very least to injure the deceased and possibly to kill him. The fact that Ms E had been so distressed the previous day by the deceased's actions is highly relevant here, as is the fact that it was on that same evening that the offender telephoned the deceased and asked to meet him the next day.
9. The final straw in this regard is the purchase of the knife. It was a large knife, with a blade 20 centimetres long and a sharp point. Given the background of events at that stage, it is impossible to accept that it was a mere coincidence or accident which led to the offender selecting and purchasing this knife very shortly before he was due to meet the deceased. The fact that he then concealed it in his clothing when he met the deceased supports this, as does the fact that he already had it in his right hand immediately after he got up and pushed the deceased to the ground.
10. For these reasons I am satisfied beyond reasonable doubt that, at least by the time the offender met the deceased on the morning of 7 July 2014, he had determined that he would, at the very least, stab him causing him injury. In addition, at the time the offender actually inflicted the fatal injuries, he must have intended to kill the deceased, not merely to injure him. The number and ferocity of the stab wounds bear clear testimony to this intention.
11. This is a significant matter when one is assessing the objective seriousness of this offence. The culpability involved in a killing which is completely unpremeditated, and is an unplanned response to unexpected circumstances, is significantly less than that which arises from a killing which has been planned in advance. On the other hand, I accept that it was probably only that morning that the offender determined to injure or kill the deceased, in a situation where his wife had been extremely distressed by the deceased's actions. This in turn involves significantly less culpability than a killing which has been premeditated well in advance, or for purposes of personal gain.
12. In addition, it is almost certain that the offender's impulsivity and anxiety problems must have played a major role in his behaviour that morning. As already mentioned, there are a number of highly irrational features to this offence. This in turn is a potentially mitigating feature, so long as it does not increase the offender's level of dangerousness. I shall be saying more about this when discussing the psychiatric evidence given on sentence.
13. A further aggravating factor, as the Crown submissions point out, is that this offence took place in a public area. The CCTV footage shows that several people came into this general area before the police arrived. The offender still had the knife in his hand during some of this time. Indeed, he pointed it in the direction of security staff, thereby no doubt causing considerable anxiety and alarm to a number of people.

Personal Circumstances of the Offender

1. The offender was born in Baghdad in November 1978 and is of Kurdish heritage. His parents had little formal education. When he was still a baby his family moved to Iran, and thereafter lived in Tehran. Because they were refugees the offender was not allowed to go to school. Nevertheless he managed to gain literacy and numeracy skills through other means. From the age of eight he worked as a street vendor. By reason of his belonging to a particular military group, the offender was imprisoned for over eight years in an Iranian gaol. It is clear that during that time he suffered unspeakable horrors. These included spending nine months in solitary confinement in a small space with no running water or toilet facilities, so that he was forced to live with his own effluent. Moreover he suffered serious torture and horrific sexual assaults. He was apparently very depressed after his release from prison. In 2009 he came to Australia by boat and later gained a permanent visa. Thereafter he lived at various addresses in the western suburbs of Sydney.
2. On 16 May 2011 the offender was convicted of one count of stealing from a person, the offence having been committed on 14 March 2011. He was fined $550. On 19 November 2011, he was convicted of one count of common assault, one of assault occasioning actual bodily harm and one of stealing from a person. All three offences were committed on 13 July 2011. The offender was placed on a bond to be of good behaviour for 18 months. A number of conditions were attached, including attending counselling and taking treatment in accordance with medical advice. The nominated psychologist was Ms Afsaneh Jolan.
3. The offender had already been referred to Ms Jolan, whose report, dated 15 September 2015, was tendered on sentence. Between October 2011 and May 2014 the offender attended regular sessions with her. She said that his symptoms back in 2011, were consistent with a diagnosis of depression, anxiety associated with post-traumatic stress disorder, and anger problems. Other psychological disorders surfaced later, particularly the offender's impulsivity. She said that in the last psychological sessions before he committed this offence, the offender had shown significant improvement. She did not see him again until shortly before writing her report, at which time, she said, he was extremely remorseful about this offence.
4. The offender was also assessed by the forensic psychiatrist, Dr Olav Nielssen, whose reports, dated 27 December 2014 and 11 September 2015 were tendered by the defence. Dr Nielssen interviewed the offender at the Metropolitan Reception and Remand Centre on 5 December 2014 for the purpose of his first report. In that report the doctor diagnosed the offender as suffering from an anxiety disorder associated with post-traumatic stress disorder, and a possible psychotic illness, based on the offender's history of having had aural hallucinations in the past. However, the doctor said that there was little in the way of objective signs of a psychotic illness during the interview.
5. Dr Nielssen again interviewed the offender on 26 August 2015 for the purpose of his second report. After that interview the doctor considered that it was less likely that the offender has a psychotic illness, as he reported no further symptoms and there was again little in the way of objective signs of such illness. On the other hand, the offender had been taking anti-psychotic medication and it was possible, the doctor said, that these were masking his symptoms. Dr Nielssen was unable to elicit a history of a direct link between the offender's psychological symptoms and the present offence.
6. Dr Nielssen gave evidence on sentence, in which he was asked by the Crown Prosecutor about this aspect of his report. The doctor said that a person who suffers from post-traumatic stress disorder can have a heightened perception of threat and of arousal. These are the symptoms of anxiety disorder. When asked whether this might make the offender more of a risk on his release, he said that it would probably do so if his condition remained untreated, but these symptoms are very treatable. In any event, the risk of homicide recidivism is very low.
7. I accept that, in all the circumstances, including the extreme irrationality of this offence, the offender is unlikely to present a risk to others upon his release, so long as he continues his treatment for his psychological condition.

Level of Criminality

1. Since the High Court judgment in Muldrock v The Queen [2011] HCA 39, a two-stage approach to sentencing is no longer to be undertaken. Nevertheless, it is still appropriate to assess the objective criminality of the offence in question. In this case, both the Crown and the defence agree that the objective criminality is below the mid-range, although the Crown submits that it is only slightly so, and I would have to agree that it is not significantly below the mid-level of criminality, taking account of the aggravating factors mentioned earlier. Mr Ierace did not seek to argue to the contrary.

Other Considerations on Sentence

1. A moving Victim Impact Statement was presented on behalf of the offender's nephew, who is still a school student. The rest of his immediate family lives in Iran, and he had come to regard the deceased as his father. He has been severely affected by the deceased's death. The Crown has applied, pursuant to s 28(4) of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014, to have the Victim Impact Statement taken into account on sentence. In accordance with the legislation, I take the statement into account as part of the harm which this offence has done to the community, and in accordance with the judgment of McCallum J in R v Halloun [2014] NSWSC 1705.
2. The offender pleaded guilty to murder, and is therefore entitled to a reduction on sentence. The plea was not entered at the earliest opportunity, the reason being - as Mr Ierace's submissions make clear - that the offender was waiting to receive a psychiatric assessment in order to determine whether a defence was available to him. As soon as he received this assessment, he entered his plea of guilty. In these circumstances, the offender is entitled to a significant discount on sentence. The Crown acknowledged this, and suggested that a reduction of 15% to 18% would be appropriate. In the circumstances I propose to reduce the sentence I would otherwise have imposed by approximately 18%.
3. Given the offender's background, the great majority of subjective factors are of a mitigating nature. Indeed the only aggravating factor is the offender's previous record of convictions. In this regard, the fact that he was fined or placed on a bond on both occasions indicates that the offences were of a relatively low order of culpability. Apart from his imprisonment in Iran, he has never been in prison before.
4. Mr Ierace has submitted that there are special circumstances in this case which warrant a departure from the statutory ratio between the non-parole period and the balance of term of sentence, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). The offender would benefit, he submitted, from an extended period of supervision and counselling in the community, given his troubled life before arriving in Australia. In addition, the experience of imprisonment is likely to be significantly more onerous for the offender by reason of the trauma he suffered during his imprisonment in Iran, and the impact that this has had on him ever since. The Crown submitted that, given the length of sentence which is likely to be imposed for this offence, there will already be a lengthy period on parole which will be ample for the offender's supervision and readjustment to community life.
5. I accept that the offender's experience of imprisonment is, by reason of his background, likely to be more difficult for him than it would be for a normal person, and that a lengthy period on parole might be of significant benefit to him. I propose to take account of these matters by reducing the non-parole period I would otherwise have imposed, but for the reasons expounded by the Crown, the reduction will not be a substantial one.
6. The maximum sentence for the offence of murder is life imprisonment, and the standard non-parole period is imprisonment for 20 years. Since the decision in Muldrock, both of these have been recognised as guide-posts to be taken into account during the sentencing process.
7. For the sake of the record I should say that, in determining the appropriate sentence, I have taken into account the purposes of sentence as set out in s 3A of the Act.
8. The offender has been in custody since 7 July 2014, and his sentence is to commence on that date.

Sentence

1. Kazem Mohammadi Payam, for the murder of Nabil Naser I sentence you to the following term of imprisonment: 1. a non-parole period of 13 years and 6 months, commencing on 7 July 2014 and expiring on 6 January 2028, 2. a balance of term of 5 years and 6 months, commencing on 7 January 2028 and expiring on 6 July 2033, making a total term of imprisonment of 19 years. 3. The earliest date on which you will be eligible for release on parole is 6 January 2028.

Amendments 11 December 2015 - Incorrect counsel on coversheet 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: 11 December 2015