R v Gabor Ziha [2008] NSWSC 145

New South Wales Supreme Court

CITATION : R v Gabor Ziha [2008] NSWSC 145

HEARING DATE(S) : 7/2/08, 8/2/08, 11/2/08,12/2/08,13/2/08, 14/02/08,15/02/08, 18/02/08,19/02/08

JUDGMENT DATE : 29 February 2008

JUDGMENT OF : Barr J at 1

For the offence of murder imprisonment for a non-parole period of 18 years which will be taken to have commenced on 2 August 2006 and will expire 1 August 2024, and a balance of term of 6 years which will expire on 1 August 2030. DECISION : For the offence of malicious wounding imprisonment for a fixed term of four years which will be taken to have commenced on 2 August 2006 and which will expire on 1 August 2010. The first day of eligibility for release on parole will be 1 August 2024.

CATCHWORDS : CRIMINAL LAW - remarks on sentence - partial defence - substantial impairment by an abnormality of mind arising from an underlying condition

PARTIES : Regina Gabor Ziha

FILE NUMBER(S) : SC 2007/1954

COUNSEL : P Calvert (Crown) M Paish (Defendant)

SOLICITORS : Solicitor for Public Prosecutions (Crown) Voros Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

29 FEBRUARY 2008

2007 / 1954 R v GABOR ZIHA

REMARKS ON SENTENCE 1 HIS HONOUR: Following a trial by jury the offender, Gabor Ziha, was found guilty of the murder of Barry Corbett and of maliciously wounding Marija Ziha. For reasons which will appear, I shall refer to Marija Ziha as Mrs Corbett. 2 The offender and Mrs Corbett were husband and wife. They met in the former Yugoslav Republic when they were both teenagers. They lived not far from the Hungarian border and regarded themselves as Hungarian. Hungarian was their preferred language. They went to university and married there. Mrs Corbett was a linguist and interpreter in a number of languages. The offender was an electronics engineer. They have two children, a daughter, born in 1981 and a son, born in 1985. The family migrated to Australia in 1989 and in 2005 they were living at Baulkham Hills. 3 By that time relations between the offender and Mrs Corbett had been strained for a number of years. The offender was dedicated to and good at his job in the television industry. He did not generally seek the company of others and was described as a loner. There was only one person he could call a friend. Over the years the offender and Mrs Corbett had had their differences. The offender had an explosive temper, was described as having a "short fuse", and had struck Mrs Corbett on a couple of occasions, though it would not be correct to say that he was habitually violent towards her. For some time he had had an intense interest in the origins of the Hungarian language and considered that the orthodox teaching on the subject was mistaken. He devoted a substantial part of his leisure time to the study of the subject and Mrs Corbett considered his study obsessive and misdirected. It became a further source of dissension between them. In March 2005 the offender reacted badly to the news of the death of his mother and was suffering symptoms of what was later diagnosed as depression. Things became so bad that Mrs Corbett resorted to trying to communicate with him by letter. By June 2005 she was threatening to leave him, though she did not then do so. 4 The offender had a rigid attitude to morals, particularly in sexual matters. He became convinced that their daughter was gaining computer access to a pornographic website, and it was impossible to persuade him that he was mistaken. 5 In December 2005 the offender attempted to commit suicide by cutting his wrist. He was taken to hospital and, for the first time, diagnosed as suffering from depression. His condition was not apparently serious enough to warrant his being kept in hospital for any long time, however, and he was soon discharged. He refused all offers of medical help after his discharge. 6 Mrs Corbett moved out of the house at Baulkham Hills shortly after Christmas 2005 and began living in a flat in Stewart Street Parramatta. The offender and the children remained at Baulkham Hills. Mrs Corbett kept in contact with the offender by email and telephone. She also visited the family at the Baulkham Hills house, not least to maintain contact with the children. She had met a man called Barry Corbett and continued to see him. Their friendship grew. The offender never met Mr Corbett but he learned about his existence. 7 At Mrs Corbett's invitation, the offender visited her at Stewart Street to perform a small task. On that occasion she showed him the flat, but he was prevented from seeing the bedroom. He developed a strong desire to see it. 8 The offender began to say dark things about the relationship between Mrs Corbett and Mr Corbett. He began sending SMS messages to Mrs Corbett, asking her why she was doing this to him and saying that he knew that someone was with her. He observed that in some countries the penalty for adultery was stoning. At Easter he added to a card that had been received the words "the bible says she should be stoned to death". He said that Australia was a stupid country because here if you stole bread you were sent to prison but if you stole another man's woman it is okay under this culture. He repeatedly said that he had plans, that he had to do what he had to do, that he would be in the news, that it would be Mrs Corbett's fault and that it was his destiny. He also said things that suggested that he was still thinking about committing suicide. 9 He found that Mr Corbett lived at an address in Darling Point. He went there and noticed Mrs Corbett's car, parked in the street. He made remarks to the children that Mrs Corbett had left him to have "hot sex". He said that Mr Corbett was rich and had a "big dick". He told his son that he had seen Mrs Corbett and Mr Corbett having sexual intercourse, though it seems unlikely that he had done so, and I think that he was probably describing what he had imagined seeing. He said that he knew the car that Mr Corbett drove. 10 He knew that their son had a set of keys to the Stewart Street flat. He stole the keys and secretly had them copied. He visited the Stewart Street flat, uninvited while Mrs Corbett was away, and entered it, using the keys. He looked into the bedroom, the subject of his principal curiosity, and into the bedside drawers. He noticed there a Cosmopolitan magazine. He looked at it. He considered that it contained pornographic material. 11 On 1 August 2006, on the eve of the offender and Mrs Corbett's wedding anniversary, Mrs Corbett was at the flat in Stewart Street and Mr Corbett was visiting. They went to bed and turned off the lights. The offender was at home at Baulkham Hills. He told his children that he was going to buy petrol and food for the dog and drove away from the house. After buying petrol he drove to the flat at Stewart Street. He noticed Mrs Corbett's car parked in the street and Mr Corbett's parked in Mrs Corbett's usual position. He walked along the side of the building, looking to see any sign of lights or television. He saw that the flat was in darkness. He had in the car a work bag containing a kitchen knife, which he used at work, gloves, a torch and the keys to the flat. He took those items from his car, put on the gloves, entered the front door of the building, using the keys, and the front door of the flat, using the same keys. The flat was in darkness. He turned on the torch and entered the bedroom. Mr Corbett, awoken, got out of bed and the offender savagely attacked him with the knife, inflicting more than thirty injuries. Two of the knife thrusts entered the heart, one damaged the aorta and another, delivered from behind, entered the lung. Mr Corbett was unarmed. He had no warning and no chance. He died there and then. During the attack Mrs Corbett tried to push off the offender and in the course of doing so received a knife wound to the thigh. Not realising that she had been injured, she ran out of the building to summon help. The offender cut off Mr Corbett's penis and placed it in the bedside drawer on top of the Cosmopolitan magazine. He closed the drawer. He left the house. He drove to the Parramatta River and threw in the knife and keys. He drove home, washed his clothes and waited for the police. 12 Mrs Corbett was able to get help and the police and ambulance officers attended. It was only then that Mrs Corbett realised that she had been stabbed. She was taken to hospital and her wound was stitched. 13 The offender was arrested in the early hours of 2 August 2006. 14 When he was arraigned at the commencement of the trial the offender pleaded guilty of the manslaughter of Mr Corbett. He said that he was not guilty of murder because his capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. When charged with the malicious wounding of Mrs Corbett he pleaded that he was responsible for wounding her but denied that the wounding was malicious. 15 Two psychiatrists gave evidence at the trial. Both had interviewed the offender but neither had treated him. He first saw Dr Westmore in April 2007. By that time he had been treated in the prison hospital with anti-depressants for about four months. The account he gave Dr Westmore of the events of 1 August 2006 was the first he had given. He had previously declined to answer questions the police would have liked to ask him. He said that having realised that all the lights were off at 9.30pm and that Mr Corbett's car was parked there, that was what he could not take. He was overflowed with emotions and decided to do whatever he had to do. He retrieved the knife, a glove, a torch and the keys from the bag in his car and headed towards the building entrance. He said to himself "if I go forward there is no way back". He said that he could not stop it. He knew what he was doing. He was conscious of what he was doing. He just could not listen to himself. He said to Dr Westmore "I wanted to take off the old man's tool. I just know that I could not control myself. It is easy to call it anger. I cannot describe it. I just know I was uncontrollable and I was frightened". 16 Dr Westmore took the view that the offender did not have available to him the defence that he was not guilty on the ground of mental illness and that he did not have available to him the partial defence of substantial impairment by abnormality of mind. 17 The offender continued to be treated. He consulted a second psychiatrist, Dr Nielssen, in October 2007. He gave a somewhat different account. Whereas he had given Dr Westmore no reason for having driven to Stewart Street, he told Dr Nielssen that he had driven past the flat because it was his anniversary and he wanted to keep the relationship with Mrs Corbett. When he saw that the lights were off and he knew that Mr Corbett's visit was not social, he went crazy. He said "I saw Marija and Barry in my imagination. I was flooded with emotions. It was like I was looking at the scene from a distance, it was not me. I saw myself doing it". When the offender was asked why he had cut off Mr Corbett's penis he said, "because it was our wedding anniversary". 18 Dr Nielssen diagnosed major depression, on the basis of not only the offender's account but on the medical records that were then available and on statements of persons who had observed the behaviour of the offender in recent times. The major depression was in remission. Taking these matters into account, Dr Nielssen was of the opinion that at the time of the offence the offender's perception of the events, his capacity to judge right from wrong and his capacity to control his actions were significantly impaired. 19 The offender saw Dr Westmore a second time in January 2008. The offender showed him a drawing that he had made, showing three faces. The offender's image was in the middle. On the left was the head of a man with horns and on the right a man's head wearing a laurel wreath. He pointed to the figure with the laurel wreath and said that that was the man who had tried to stop him. The figures on the right and left were arguing in some way. He said that he was on the bottom and wanted to do another suicide. He had wanted to reconcile with his wife. The incident occurred on 1 August and 2 August was their wedding anniversary. He said "and I lost all hope. It wasn't planned that I go there". He said that he had left his house to buy dog food. He had previously purchased a card and wanted to write on it to celebrate the anniversary. He had trouble formulating words for the card. He said that he thought that if he drove by Mrs Corbett's house he would get "an inspiration". He said that he was not really surprised when he saw Mr Corbett's car at the house because he knew that Mrs Corbett had another boyfriend, a thing he was tolerating. When asked what was different on that night he said "the light was off and I knew it was not just a friendly visit, and that was the difference". He denied being jealous. 20 Dr Westmore also noted the other material, the reports about the prior treatment of the offender and the diagnosis of depression in December 2005 as well as the statements of various other witnesses about the accused's demeanour and behaviour. He also had a copy of Dr Nielssen's report. 21 Dr Westmore observed that there is a close relationship between depression and anger, that angry men are often depressed and that anger may sometimes be controlled by treating depression. He observed that the case was a difficult one because he thought that there were two competing emotions which had to be considered in understanding the aetiology of the offender's aggressive action. He and Dr Nielssen agreed that he was depressed. He was also extremely angry. Dr Westmore thought that the additional history that he had received in the second interview might emphasise the importance of the depression in the offender's behaviour, particularly the evidence of a lay witness that the offender was depressed in early 2006 and even more so in May of the same year. As well, Mrs Corbett had referred to his becoming withdrawn and having few friends. Dr Westmore thought that the fact that the incident occurred on the eve of the wedding anniversary and in the circumstance of his unhealthy preoccupation with his wife and his relationship with her and the fact that their relationship had broken down were all factors relevant to the issue of loss of control. Dr Westmore considered that the choice from a psychiatric perspective was whether the offender was an overcontrolled, angry, obsessive, jealous man and whether those characteristics were dominant in his actions towards the deceased or whether he was primarily a depressed man and whether those emotions were the dominant ones causing his actions towards the deceased. Dr Westmore accepted that whatever occurred, the offender suffered from extreme anger and a loss of control. 22 The offender gave evidence before the jury. He repeated the account that, having filled the car with petrol, he had become diverted by the need to gain inspiration for the anniversary card and had for that reason driven past the block of flats. Having realised that Mr Corbett was there and that the lights were off, he saw them together in his imagination. He had a feeling that he could not describe and that he had not had before. It overwhelmed and overpowered him. He tried to stop himself but could not. He entered the building and the flat. He felt empty. He felt as if he were not himself, that there were two people fighting over him. That is what he had tried to depict when he had later made the drawing. It was as though he were an observer sitting in the cinema. One of the men in the drawing told him that he was a coward. He saw just two hands of the actor and the rest was just like a movie, like a Hitchcock horror movie. He was just horrified to watch everything that happened. He could not remember how many times he had injured Mr Corbett. He said a couple of times. It was out of his memory. He remembered Mrs Corbett pushing him and then disappearing. After that he turned on the light and saw Mr Corbett naked. He saw his genitalia. He felt that the man was not resisting but still provoking him by shoving his genitals into his face. He cut off the penis and put it in the drawer. He was asked why he did that and said that he did not know. It just occurred to him. 23 The jury's verdict shows that the offender failed to prove both that his capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition and that such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. 24 I regard as implausible the offender's explanation that he went to Stewart Street to gain inspiration for an anniversary card and that it was only at Stewart Street that some emotion, as though unexpectedly, welled up in his mind when he realised that Mr Corbett was with Mrs Corbett, that the lights were off and that it was his wedding anniversary. He was well aware that it was his wedding anniversary before he left Baulkham Hills. I think that he went to the house to see whether Mr Corbett was there and that his seeing his car came as no surprise. I do not think that there was any element of surprise for the offender at Stewart Street. The reasons why he went there can be better understood, I think, by considering some earlier events. 25 The offender, a rigid and obsessive man on questions of sexual morals, found out that his estranged wife was seeing another man. He suspected that they were having sexual relations. He found out where the man was living. He went to the man's house and saw his wife's car in the street. He stole keys and copied them so that he could enter Mrs Corbett's flat undetected. He used them. He looked at the bedroom where Mrs Corbett and Mr Corbett, in the offender's imagination, had had and would have sexual relations. He saw the Cosmopolitan magazine. I think that he took the keys with him when he left home on 1 August 2006 because he was intending to enter Mrs Corbett's flat. I think he took a torch because he was intending to use it in the flat. I think he took a knife because he was intending to use it in the flat. 26 During cross-examination the offender tried to resist the suggestion that he was jealous of the relationship between Mrs Corbett and Mr Corbett, though eventually he reluctantly admitted that he was a little jealous. He held up a finger and thumb about a centimetre apart to show how little. 27 I think that on 1 August 2006 the offender carried out an act he had been thinking about for some time. It had its beginnings, perhaps, in his remarks that people who stole other people's wives went unpunished and that in other countries people who committed adultery were stoned to death. Although I do not accept that he went to Stewart Street to gain inspiration for an anniversary card, I do think that the fact of the anniversary motivated him. I do not accept that he just happened to have with him the keys, the torch and the knife. I think that he left home with the intention of entering the flat and attacking Mr Corbett. His intent was to punish him by killing him for stealing another man's wife. His disposal of the severed penis was intended to teach Mrs Corbett a lesson for her adultery. 28 Although I accept that the offender was suffering from depression, which constituted an abnormality of mind arising from an underlying condition, I do not accept that his capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by that abnormality. He acted as an over-controlled, moralistic, jealous, indignant and angry man who decided to use a significant occasion to exact retribution. 29 That is not to say, however, that the offender's depression can be put aside as of no effect. By August 2006 he had been suffering from the condition for a substantial time and it must have made keener his feeling of despair upon realising that he had lost the love and companionship of his wife. Whether the effect of his illness is described as impairing his capacity to a degree less than substantial or whether other terminology may be used may not matter. I am satisfied that the effect upon him of his illness does to some degree mitigate his criminality. 30 The offender was born on 15 March 1950 and is now 57 years of age. He has never previously been in trouble with the law. During the trial he expressed remorse for his actions. He declared that Mr Corbett was innocent and did not deserve to suffer what had happened to him. That was substantially different from what he had told Dr Westmore, namely that Mr Corbett was a victim of his own foolishness. The offender intends to forswear entitlement to any part of a joint fund of money, apparently the proceeds of the sale of investment property formerly owned jointly by Mrs Corbett and himself. That, I think, is some evidence of the genuineness of his recent expressions of remorse, though it can go little way to alleviating the loss and anguish which Mrs Corbett has suffered. I think that he regrets the hurt he has caused Mrs Corbett though. He may also be truly sorry for killing Mr Corbett, though the evidence of that is less impressive. 31 Not long after his arrest the offender was transferred to the Acute Crisis Management Unit at Long Bay because he was threatening to commit suicide. He was kept there until discharged in August 2007. During his time there he settled down, but on occasions indulged in self-righteous, stubborn and childish behaviour towards others. Shortly before the trial began he was readmitted to the Unit, I think under the stress of the forthcoming hearing. He is still kept there but, as before, he is being helped, and there seems no reason to suppose that he will not once again settle. Once the strain of this litigation is behind him his depression should return to remission and he should be able to pursue a normal path of assessment and work in the general gaol population. 32 The offender is highly intelligent. He does not seek the company of others and does not always tolerate it. He is impatient and contemptuous of others. He appears to have prospects of rehabilitation, though his rigid and selfish nature will make progress difficult for him, particularly when he is obliged to be in the company of those he would prefer to avoid. Circumstances like those that gave rise to these offences will not occur again, of course, and his risk of committing similar offences again is not high. That is not to say, however, that there is no need for the offender personally to be deterred from re-offending. 33 The features that tend to require a longer sentence are the cool, stealthy way the offender planned his attack and carried it out by surprise on persons who should have been safe in the privacy of their own home, the savage and sustained nature of the attack, the disgusting mutilation of Mr Corbett's body after death and the histrionic use of the magazine in the drawer. 34 Those that tend to require a lesser sentence are the offender's remorse, his prior good character and his chance of rehabilitation, that he will not offend again. He is entitled also to consideration for the economical way his case was conducted, not challenging the part he played in the attack on the deceased but raising only the partial defence of substantial impairment. There is also the effect of the offender's depression, though that was limited and does not substantially reduce the need for a generally deterrent sentence. 35 Balancing these matters, I have come to the conclusion that I should set a non-parole period for the murder somewhat shorter than the standard non-parole period. 36 The maximum penalty for malicious wounding is imprisonment for seven years. I think that the offender is genuinely sorry for wounding Mrs Corbett and I accept that he did not intend to do so. His plea of not guilty resulted from his lack of understanding of the requirements for proof of malice and he did not challenge the evidence. The offence of malicious wounding occurred incidentally during the course of the attack on Mr Corbett. There was no desire to stab Mrs Corbett. I think that a concurrent sentence is warranted in the circumstances. 37 Mrs Corbett read the Court a statement describing her love for Mr Corbett and the manner in which she has suffered and continues to suffer as a result of his cruel murder. She understands, I think, that the Court may not take these matters into account in imposing sentence for the murder, but I would wish her to know that the sympathy of the Court goes out to her in her loss, together with the hope that her hurt will become less in the future. 38 Gabor Ziha, for the murder of Barry Corbett I sentence you to imprisonment for a non-parole period of 18 years which will be taken to have commenced on 2 August 2006 and will expire 1 August 2024, and a balance of term of 6 years, which will expire on 1 August 2030. 39 For the malicious wounding of Marija Ziha I sentence you to imprisonment for a fixed term of four years, which will be taken to have commenced on 2 August 2006 and which will expire on 1 August 2010. 40 No case has been made for any further reduction of the non-parole period I have imposed on the first count to permit any extension of the period of eligibility for parole. The parole period I have allowed for is substantial. I have imposed a fixed term for the sentence on the second count because of the concurrency of the longer non-parole period on the first count. 41 The first day on which you will become eligible for release to parole will be 1 August 2024. **********