R v Sjahadi

Judgment 1HER HONOUR: Eddy Sjahadi stands to be sentenced after pleading guilty to the murder of his sister-in-law, Lie Sjahadi. The maximum penalty for the offence of murder is imprisonment for life: s 19A of the Crimes Act 1900. The offence carries a standard non-parole period of 20 years imprisonment: s 54B of the Crimes (Sentencing Procedure) Act 1999. 2The offender pleaded guilty to the offence at an early stage in the Local Court. However, upon being committed to this Court for sentence, he did not adhere to his plea. It was explained to me at the proceedings on sentence that, after the plea of guilty was entered, the offender's legal representatives formed the view that it was necessary to investigate an issue as to the offender's state of mind at the time of the offence, particularly as to the extent and impact of his intoxication due to the ingestion of prescription drugs. 3The Crown conceded that the issue of intoxication was not confected and was properly the subject of further investigation and advice from appropriate experts. Throughout the investigation of the issue, it remained clear to the Crown and the Court that the offender accepted that his acts caused the death of the deceased, the only issue being his state of mind. In the circumstances, the Crown acknowledged that the utilitarian value of the plea combined with the degree of pre-trial disclosure by the defence, whilst not at the level of a plea entered at the earliest opportunity, remained high. The Crown submitted that it would be open to the Court to allow a discount to reflect the utilitarian value of the plea of between 15% and 25% but stopping short of 25%. I consider it appropriate to allow a discount towards the higher end of that range. 4The circumstances of the offence were set out in an agreed statement of facts tendered at the proceedings on sentence. The offender came to Australia from Indonesia at the age of 21, followed shortly by his brother, Pino Sjahadi. In 1996, Pino married Lie, the victim of the present offence. The offender, the victim and Pino Sjahadi shared accommodation together for many years, first in the city and then in Bondi. 5The relationship between the offender and the victim was difficult. At the time of the offence, the offender was not working and was receiving unemployment benefits. He owed his brother and the deceased $5,000. He and the deceased frequently argued about that and other domestic issues. 6In March 2009, an argument developed between the offender and the deceased when the offender complained that the deceased was making excessive noise as she cleaned the unit. He assaulted her, pulling her from behind by the hair and pushing her head forward. He threatened her that if she contacted police, he would kill her. 7The victim did call police and the offender was charged with assault. He was sentenced to a good behaviour bond for 12 months. As a result of that incident, an apprehended violence order was made against the offender for a period of 3 years from 25 March 2009. The terms of the order prohibited the offender from assaulting, molesting, harassing or threatening the deceased or engaging in conduct which intimidated her. The order also prohibited the offender from entering the premises at which she resided or from approaching or contacting her except through a legal representative. 8Regrettably, the offender resumed his occupation of the unit with his brother and the deceased, notwithstanding the prohibition of the apprehended violence order. In doing so, he committed a separate offence to which he has also pleaded guilty. The Crown has asked me to deal with that offence in accordance with s 167 of the Criminal Procedure Act 1986. 9The precise circumstances of the murder are not clear. On 9 December 2010, the deceased arrived home from work in the afternoon. Both her husband and the offender were at home. The deceased and the offender began to argue. As on the occasion of the earlier assault, the subject of the argument was depressingly trivial. The statement of facts records that the offender complained the deceased was taking too long to cook and clean the kitchen. At some point during the argument, the deceased reminded the offender that he owed her $5,000, to which he replied "you use my washing machine". 10Later that evening, the deceased asked her husband why the offender had to continue to live with them. He told her that the offender could not afford to move out on his own. 11Pino Sjahadi left for work shortly after 3.00 am the following morning, leaving the offender and the deceased alone together. Neighbours heard a loud argument in the unit between 10.00 am and 11.00 am. At some point, the offender took a knife from the kitchen and stabbed the deceased, causing her death. An autopsy revealed that she had suffered multiple stab and incised wounds to the back of the trunk, neck and head. Her injuries included multiple wounds to major vessels, the chest wall and the lungs; blood loss; collapse of the right lung; and pulmonary haemorrhage. She was found dead by her husband later that afternoon. He found her kneeling on the floor in their bedroom with her arms and head face down on the bed. It was apparent that she had been in her bedroom getting dressed for work at the time the offender attacked her. The placement of her wounds suggests that she was attacked primarily from behind. The autopsy report states that she may have been dead prior to sustaining some of the stab wounds, suggesting a sustained, uncontrolled attack. There were small cuts which could have been defensive wounds on her hands. 12When Pino Sjahadi returned from work, he first saw the offender lying on the lounge room floor, apparently well-affected by drugs. He found his wife dead in the bedroom shortly afterwards. In the lounge room, police found several handwritten notes evidently written by the offender. One was bloodstained and commenced with the words "my last wish". It contained a right index fingerprint impression and a left thumbprint impression which matched those of the offender. A second note said "sorry Pino, I have to do it to make peace for your sake. Goodbye". The offender was taken to hospital, where he was later arrested. On the advice of a lawyer, he declined to be interviewed by police. However, he consented to forensic procedures including the taking of DNA, photographs, hand swabs and fingernail clippings. 13At the hospital, the offender told medical staff that he had taken 80 Xanax tablets at approximately 8.00 am the previous day. According to the agreed statement of facts, the Crown accepts that this was a genuine attempt by the offender to commit suicide and may be taken into account as evidence of remorse. On that premise, the time when the offender said he took those tablets is inconsistent with the independent witness accounts of a heated argument several hours later. Against those inconsistent accounts, it is appropriate to proceed on the basis stated in the agreed facts, namely, that the offender attempted suicide by drug overdose after killing the deceased. I accept that his doing so is strong evidence of remorse. 14The offender later told a psychiatrist who assessed him for the purpose of these proceedings that, on the day of the offence, he took two Xanax and that the next thing he remembered was standing in the deceased's bedroom holding a knife and seeing blood everywhere. He immediately realised what he had done and then proceeded to take the whole packet of Xanax, together with other prescribed medication. 15As already noted, the offender was assessed by a psychiatrist, Dr Olav Nielssen, for the purpose of these proceedings. From the history elicited and the observations made during the interview, Dr Nielsson did not consider that the offender was suffering from any mental illness or condition that may have contributed to the offence. He considered that the two Xanax taken before the offence were unlikely to have affected the offender's capacity to form the intention to commit the offence. In light of the offender's loss of memory for the events surrounding the offence, Dr Nielsson considered whether the offender may have taken a larger number of Xanax tablets before the offence, which may have contributed to his condition in a similar way to intoxication with alcohol. However, based on the history taken from the offender of taking only two tablets, together with the evidence of the suicide notes which evidently preceded an overdose of prescription medication, Dr Nielsson concluded that the larger quantity of tablets was probably not taken until after the offence. I am not satisfied that the ingestion of any drugs prior to the commission of the offence was such as to reduce the offender's moral culpability for the offence to any degree. 16The offender was also assessed by a clinical psychologist, Mr John Machlin, for the purpose of the proceedings on sentence. The account of the offence given to Mr Machlin by the offender was consistent with what the offender told Dr Nielsson. Mr Machlin recorded that, when the offender realised what he had done, he reasoned that the only way to repay his brother was with his own life. He proceeded then to take an overdose of his medication. 17The offender told Mr Machlin of his ongoing regret and remorse in relation to the offence, especially the pain he had caused to his brother, whom he has not seen since his arrest. The offender said to Mr Machlin "what did I do to him? I broke his heart". He reported that the two brothers had enjoyed a very close relationship during their youth and said that he wished to apologise to his brother and to the family of the deceased. The offender told Mr Machlin that his regret and remorse about his offence, including the pain he has caused his brother, was his main source of distress whilst he was in prison. 18The reports of Dr Nielsson and Mr Machlin reveal no aspect of the personal circumstances of the offender that ameliorates the seriousness of his offending. They do, however, reveal an unusually strong measure of contrition and remorse for the offence, which should be taken into account as a mitigating factor. 19An important factor in determining the appropriate sentence is to assess the gravity of the offending. The Crown submitted that the killing was intentional. Having regard to the circumstances of the offence and the report of Dr Nielsson, I am satisfied beyond reasonable doubt that that is so. 20The Crown conceded, however, that notwithstanding the history of acrimony between the offender and the deceased and the offender's prior assault on the deceased, the offence was probably not premeditated. I accept that that is the case. 21Nonetheless, as submitted by the Crown, the seriousness of the offending cannot be doubted and it must be regarded as involving a high degree of culpability. The offender's attack on the deceased, involving 16 wounds to the back of the scalp, neck and trunk, must have been a horrific experience for her. She died in her own bedroom, helpless and no doubt in a state of complete terror. The attack involved a high degree of actual violence with the use of a weapon (see s 21A(2)(b) and (c) of the Crimes (Sentencing Procedure) Act. At the time of the offence, the offender had already been dealt with for an assault on the deceased and was subject to an apprehended domestic violence order (see s 21A(2)(d) of the Act). 22In noting that the deceased was killed in her own bedroom, I have not overlooked the authorities that hold this should not be regarded as an aggravating factor where the home of the deceased is also the home of the offender. It is doubtful whether those authorities apply in the circumstance where an offender is prohibited from residing at that place under the provisions of an apprehended violence order. However, since in the present case I am to deal with the offender for the separate offence of breaching the order by residing at those premises, I have not in this instance had regard to that circumstance as an aggravating feature of the murder so as to avoid punishing the offender doubly for that circumstance. 23I am required under s 21A(3) of the Crimes (Sentencing Procedure) Act to take any relevant mitigating factors into account in determining the appropriate sentence. As already noted, the Crown acknowledges that the offence was not premeditated (s 21A(3)(b)). Having regard to the degree of contrition and remorse expressed by the offender and the fact that he will no longer face the circumstance of domestic tension which evidently gave rise to the offence, I accept that he has good prospects of rehabilitation and is unlikely to re-offend (s 21A(3)(g) and (h)). As already explained, I also accept that he has shown remorse (s 21A(3)(i)). He has pleaded guilty to the offence and made it clear from the earliest opportunity that the only basis on which the charge might have been defended was the issue of his mental state at the time of the offence based on his ingestion of drugs (see section 21A(3)(k) and (l)). He has no prior convictions other than the domestic violence offence to which I have already referred. 24Finally, I must have regard to the maximum penalty of imprisonment for life and the further guidepost that, for an offence in the middle of the range of objective seriousness, a standard non-parole period of 20 years is prescribed for this offence (s 54A of the Crimes (Sentencing Procedure) Act; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120). 25I should also acknowledge that victim impact statements were supplied to the Court from Pino Sjahadi and his two children, the stepson and stepdaughter of the deceased. As I hope has been explained to them, the Court is not permitted to have regard to that material in aggravation of the sentence to be imposed. I would nonetheless wish to acknowledge the pain and grief experienced by the family of the deceased, as eloquently articulated in their statements to the Court. 26I turn first to the offence of breaching the apprehended violence order. The maximum penalty for that offence is imprisonment for two years or 50 penalty units; s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. As already noted, the offender is to be dealt with on the basis that the conduct amounting to a breach of the order was his living at the premises occupied by the deceased and being in her presence, contrary to clauses 3 and 7 of the order. The Crown noted that it would not be permissible for me to take acts of violence constituting the murder itself into account in sentencing the offender for the breach of the apprehended violence order, since that would entail punishing him doubly for the same circumstance. 27The offender pleaded guilty to the breach of the apprehended violence order at the earliest opportunity and is accordingly entitled to a discount to reflect the utilitarian value of the plea in the full amount of 25%. 28In my view, the breach of the order must be regarded as one of substantial seriousness, even leaving aside the fact that it resulted in the murder of the deceased (as I must for this purpose). The agreed statement of facts records that the offender resumed his occupation of the unit with the agreement of both Pino Sjahadi and the deceased. Whilst I am bound to sentence the offender on that basis, since it is presented as an agreed fact, I would not accept that the deceased welcomed the offender back into her home with any enthusiasm. The conversation between the deceased and her husband the night before she was killed reveals that she would have preferred that the offender comply with the order. 29Police must despair of such cases. If apprehended violence orders are not respected as orders of the Court, they lose any efficacy. Such orders are an important protection, sometimes the only protection for vulnerable women such as the deceased against the familiar progression of a deteriorating relationship from denigrating complaints about the performance of domestic chores to open displays of violence. The flagrant disregard of such orders for reasons of personal convenience warrants condign punishment. 30I accept, as submitted on behalf of the Crown, that the offence must attract a term of imprisonment cumulative upon the sentence to be passed for the offence of murder. I would have imposed a term of one year for the breach of the order. The discount to which the offender is entitled to reflect the utilitarian value of his early plea means that the additional sentence will be 9 months imprisonment. 31For the offence of murder, I propose to sentence to the offender to a term of imprisonment with a non-parole period of 14 years and a balance of term of 5 years. The offender submitted that there were special circumstances warranting a departure from the statutory ratio of those terms, which ordinarily provides that the non-parole period will be three quarters of the total sentence. The imposition of a cumulative sentence for the breach of the apprehended domestic violence order means that the ratio between the aggregate minimum term and the total sentence does depart from the statutory ratio. Otherwise, however, I consider that the period on parole will provide sufficient opportunity for supervision of the offender and I do not propose to make any further adjustment. 32The earliest date on which the offender will be eligible for release to parole is 10 September 2025.