Supreme Court New South Wales Medium Neutral Citation: R v Andrew Iskandar & R v Nita Iskandar (No. 4) [2012] NSWSC 149 Hearing dates: 17-21 October 2011; 24 - 28 October 2011; 31 October 2011 - 4 November 2011; 7 November 2011 - 11 November 2011; 14 November 2011 - 18 November 2011; 21 November 2011 - 25 November 2011; 28 November 2011 - 29 November 2011; and 2 February 2012. Decision date: 16 March 2012 Jurisdiction: Common Law - Criminal Before: Davies J Decision: 1. Andrew Iskandar for the murder of Mohd Shah Saemin I sentence you to a minimum term of 18 years imprisonment commencing 21 May 2010 and expiring 20 May 2028 with an additional term of 7 years expiring 20 May 2035. 2. Nita Iskandar for being an accessory after the fact to the murder of Mohd Shah Saemin I sentence you to imprisonment for 1 year 11 months and 15 days commencing 16 March 2012 and expiring 28 February 2014, such sentence to be wholly suspended. You are to enter into a bond to be of good behaviour for a period of 1 year 11 months and 15 days commencing 16 March 2012 and expiring 28 February 2013. The bond is to contain conditions: (a) that you will be of good behaviour during the term of the bond; (b) that you are to appear before the Court if called upon to do so at any time during the term of the bond; (c) that you are to accept the supervision of the Probation and Parole Service and to obey all reasonable directions for counselling and to report to the Burwood Probation office within 7 days. Catchwords: CRIMINAL LAW - sentence - murder - guilty verdict by jury - joint criminal enterprise with father to kill mother's lover - young adult - no remorse - whether under father's influence. CRIMINAL LAW - sentence - accessory after the fact to murder - guilty verdict by jury - assistance by mother to enable son to flee the jurisdiction - knowledge of son's involvement. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: KT v R [2008] NSWCCA 51 Muldrock v The Queen [2011] HCA 39 R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 R v Cowen [2008] NSWSC 104 R v Dawes [2004] NSWCCA 363 R v Dileski [2002] NSWCCA 345 R v Hawken (1986) 27 A Crim R 42 R v JW [2010] NSWCCA 49 R v Koloamatangi [2011] NSWCCA 288 R v Mackett [2012] NSWSC 166 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Ward [2004] NSWSC 420 Category: Principal judgment Parties: The Crown Andrew Iskandar (Accused) Nita Iskandar (Accused) Representation: Ms K Shead (Crown Prosecutor) Mr J O'Sullivan (Andrew Iskandar) Mr D G Price (Nita Iskandar) Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Andrew Iskandar) Archbold Legal (Nita Iskandar) File Number(s): 2010/49007 & 2010/49279 Judgment 1On 28 November 2011 a jury convicted Andrew Iskandar of the murder of Mohd Shah Saemin on or about 21 February 2010. On 29 November 2011 a jury convicted Nita Iskandar of being an accessory after the fact to the murder of Mohd Shah Saemin in that between 21 and 24 February 2010 she did assist Andrew Iskandar. The facts 2I find the following facts. Those facts which are found against the offenders have been found by me to be beyond reasonable doubt, and those in their favour on the balance of probabilities. 3Nita Iskandar and Hazairin Iskandar were born in Indonesia. They were married in 1984 and moved to Australia some three months later. The marriage appears to have been an arranged marriage. There was only one child of the marriage being Andrew Iskandar. Andrew was born in Sydney on 16 May 1990. He was, therefore, 19 at the time of the offence. The family have lived at Croydon since about 1984. 4Hazairin worked as a taxi driver and Nita came to work as a clerk in the Malaysian Consulate in Sydney in 2000. The marriage was not a particularly happy one. There is conflicting evidence about whether Hazairin behaved violently towards Nita but, if he did, it seems to have been of a relatively minor nature. Nita told the Clinical Psychologist, Terry Smith, that the marriage was a loveless one on her part because her husband could not communicate nor consider her relationship needs. She said he was very controlling in all aspects of her life. She said, however, that she believed he loved her. 5The Deceased Mohd Shah Saemin (known as Shah) commenced employment with the Malaysian Consulate in 2006. He had a second job driving buses to and from the Airport. By early 2008 he and Nita appeared to have commenced having an affair. In the middle of 2009 Nita apparently requested a divorce from Hazairin but he refused because he still loved her. Hazairin was aware of the affair she was having and confronted the Deceased about it. 6It appears that the affair became reasonably public within the Indonesian community in Sydney. 7The Crown alleged a joint criminal enterprise between Hazairin and Andrew in relation to the killing of the Deceased. There was, undoubtedly, such a joint criminal enterprise and, as I shall make clear, such an enterprise was in existence by no later than the evening leading up to the death of the Deceased. What is more difficult to determine is precisely when, before that evening, the enterprise commenced. The evidence makes clear that Hazairin had set things in train to take some action against the Deceased at least a week before when he hired a rental car, but when Andrew became privy to and involved in what Hazairin seems to have planned is unclear. 8On 14 February 2010 Hazairin and Andrew went to the Kings Cross Branch of Budget Car Rentals. Hazairin effected the hiring of a car whilst Andrew sat on one of the chairs in the office. Hazairin was asked by the Budget representative if Andrew was to be an additional driver, but Hazairin said that Andrew was his son and that he was too young. 9At some time during the following week Hazairin and Andrew went in the rental car to the vicinity of the Malaysian Consulate in Woollahra. They parked the car in such a position that they could observe people and vehicles leaving the Consulate. Andrew took a photograph on his mobile phone from the front passenger seat of the car. The photograph depicts his father in the driver's seat, and the front of a property with a distinctive object on its front fence, probably only 100 metres from the Malaysian Consulate, can be seen in the background. 10Andrew claimed that he took this photograph because his father had taken him for a driving lesson and was showing him how to reverse park. The photograph, he said, was to enable him to see where, as a driver, he should be looking when he was reverse parking. This explanation for Hazairin and Andrew's presence at this location and the photograph must be rejected for a number of reasons. First, when the Iskandars lived at Croydon it is difficult to understand why Hazairin would give Andrew a driving lesson in Woollahra unless they were there for some other reason. Secondly, the car was a rental car and Andrew was not entitled to drive it whether because he was not approved as an additional driver or because he was a learner. Thirdly, contrary to Andrew's evidence, the photograph does not show Hazairin looking in the position Andrew described as demonstrating a reverse park. 11I find that the purpose of the presence of Hazairin and Andrew in the vicinity of the Malaysian consulate on that day was to spy upon either the Deceased or Nita or both of them. That finding necessarily carries with it the conclusion (which I also find) that at that time Andrew knew that his mother was having an affair with the Deceased. There is not sufficient evidence to find, however, beyond reasonable doubt that there was a joint criminal enterprise at that time to kill the Deceased or commit grievous bodily harm upon him. 12During the late afternoon and evening of 21 February there were a number of telephone calls and/or text messages passing between Andrew and Hazairin including a text message from Andrew to Hazairin which simply said "?". The Crown case was that this text concerned the planned murder and an enquiry from Andrew to Hazairin when it was to happen. It is not possible to reach a concluded view about what that message meant. 13Andrew and Hazairin left their home at some time late on the night of Sunday, 21 February 2010 in the rental car. They were both wearing similar clothing being dark hooded jackets. In the car was a knife and a hammer, possibly a crowbar and possibly a tool box. Andrew's explanation of how those implements were in the car was that Hazairin's taxi had broken down in Arncliffe on 20 February, Hazairin had rung him to say he needed Andrew to accompany him to help fix the taxi, Hazairin had then travelled to Croydon, put the tools in the rental car, taken Andrew with him in the rental car to the taxi, fixed the taxi with no help from Andrew, and then they had driven home in the taxi leaving the rental car in Arncliffe which Hazairin later retrieved. The explanation was that the tools must have been left in the rental car from that time. Andrew said, however, that he did not know any of the tools were in the car until the altercation with the Deceased began. I do not accept this account of how the weapons came to be in the car. I find that Andrew knew they were in the car before he and his father left home that night because they intended to use them on the Deceased. 14They drove over to the vicinity of Cromwell and Marion Sts in Leichhardt to wait for the Deceased to arrive home from his night job as an airport bus driver. When the Deceased arrived in that vicinity he parked his car on the western side of Cromwell St a short distance north of an electricity utility box. 15Either immediately before, or at the same time as, the Deceased alighted from his car, Hazairin drove the rental car at the Deceased's car and hit it at the rear. Thereafter both Hazairin and Andrew alighted from the rental car. Hazairin had a knife and Andrew had a hammer. They proceeded to assault the Deceased. The Deceased ran in a south-easterly direction towards Marion St passing close to the eastern corner of Cromwell St where it adjoins Marion St. He then ran across Marion St in a diagonal fashion in a south-easterly direction towards his house at number 2/24 Marion St. Hazairin and Andrew chased him. 16At the time the Deceased parked his car he was speaking on his mobile phone to Nita Iskandar. She heard the crash when Hazairin drove into the Deceased's car. She heard the Deceased cry out for help. The phone line remained open during the time the Deceased ran across the road because at one point Nita heard a woman's voice screaming out something about a hammer. That voice must have been the voice of Nada Bailey who came upon the scene where Hazairin and Andrew were attacking the Deceased. 17Nada Bailey was walking down Marion St from Norton St on the southern side. As she approached the intersection with Cromwell St she saw three men who were running across Marion St from the direction of Cromwell St. The two men on either side of the man in the middle appeared to be kicking him very hard. The man in the middle was trying to get away. He ran over towards Ms Bailey, and he was calling out "help, help me". She said the man tripped over the gutter as he approached her, and he fell to the ground outside number 28 Marion Street. She noticed his shirt was all wet. 18She shouted to the other two men to leave him alone but they continued to run after him. When he fell she tried to cover him with her body but one or both (she was not sure) of the two attackers kicked her out of the way into the gutter. One of the men was bashing him with a hammer like bashing a piece of meat. The other man stood to one side holding a small black object like a small bar. I am satisfied from other evidence that this object was the knife used to stab the Deceased. 19Whilst this was happening Janine Cahill was walking down the southern side of Marion Street. She saw what she thought at first were two men running across Marion St from Cromwell Street. As she continued walking she saw two men attacking a third man who was on the ground. She also saw Ms Bailey trying to protect the man on the ground. When she was about level with 18 Marion Street she rang 000 and asked for the police. She then yelled at the attackers telling them she had rung the police. She saw one of the men striking the Deceased very hard with a weapon a number of times. Then the two men ran off in the direction of Cromwell Street. 20The police were first notified at 11.53pm and arrived at the scene a short time afterwards. In the meantime Ms Cahill was performing CPR on the Deceased but she thought he was dead. Constable Hickey took over performing CPR until the ambulance arrived within minutes. The Deceased was pronounced dead at 12.05 am. 21The police had noticed the Deceased's silver Volvo in Cromwell St with the door open. Nita Iskandar later told Constable Hickey that it looked like the car the Deceased drove. Inspection of that car and its surrounds determined that it was the Deceased's car. It was damaged at the back where it had been struck by the rental car driven by Hazairin. A clump of what turned out later to be the Deceased's hair was found, and there was a trail of blood leading from that car across both Cromwell and Marion Sts. The police also located a hammer lying on the ground near the car. That hammer was later found to contain the DNA of Andrew Iskandar. 22The Post Mortem report makes it clear that the Deceased was both struck with a weapon consistent with being a hammer, and stabbed with a long-blade knife. The cause of death was a stab wound to the chest area which pierced his Vena Cava, the main vein carrying blood back to the heart. I find that it was Andrew Iskandar that struck the Deceased repeatedly with the hammer but it was Hazairin who stabbed him. 23Andrew gave evidence which can be summarised as follows. His father took him out on the night of the killing for a driving lesson in the rental car. After they ate dinner at about 11.00 pm at an Indian restaurant in Marion St, his father drove the car round and round in Leichhardt and then they parked in Cromwell St. When the Deceased arrived and parked his car in Cromwell St a short distance in front, Hazairin drove into it. Hazairin then alighted from the rental car and told the Deceased not to "walk with my wife again". The Deceased, after verbally abusing Hazairin, then physically attacked him. Up until this time Andrew had repeatedly asked his father what he was doing driving around, parking and crashing into the Deceased's car, but Hazairin told him to be quiet. Andrew then alighted from the car to go to his father's assistance. At one point his father handed him a hammer from the car and when the Deceased started punching Andrew Hazairin told Andrew to hit the Deceased with the hammer. Andrew did so once, striking him on the forehead, and then he dropped the hammer. 24Hazairin then tried to get something from the toolbox in the back of the rental car but the Deceased slammed the door on Hazairin's arm, dislocating it. 25The Deceased then ran across towards the flats on the corner of Cromwell and Marion Sts, and thereafter across Marion St. Hazairin chased him with Andrew following 15 metres behind. Then Andrew observed the Deceased lying on the ground. Hazairin was holding a knife in his left hand and a hammer in his right hand. He saw his father stab the Deceased with the knife and hit him with the hammer. Andrew was standing back holding a crow bar. While he was standing there a woman (who must have been Nada Bailey) came onto the road and pushed him. He then ran back to the rental car. 26The jury must have rejected this account of the events. I find, beyond reasonable doubt, that it is false. As to the events on the southern side of Marion St, the account is not only inconsistent with the evidence of Nada Bailey and Janine Cahill, but also of other witnesses who saw the events from vantage points in surrounding properties. It is also inconsistent with what Andrew Iskandar said to Victor Lau the following morning when he endeavoured to get him to agree to give a false alibi, and with what he told Esau Maiava in prison. 27Although Mr Maiava's evidence must be treated with some care I am satisfied beyond reasonable doubt that Andrew told Mr Maiava that he and his father planned to kill the Deceased, that they had to wait until they knew when the Deceased arrived home from work, that they went to the vicinity of the Deceased's house on the night in question to await his arrival, that when he arrived home Hazairin drove into the Deceased's car, that the Deceased got out of his car to run away, and that both Hazairin and Andrew attacked and killed him, Hazairin with a knife and Andrew with a hammer. I accept that Andrew told Mr Maiava that he did it because his mother was having an affair and he couldn't handle that fact. I accept that Andrew told Mr Maiava he intended to beat the case by blaming it all on his father. 28I accept this evidence of Mr Maiava for a few reasons. First, the detail of it is such that it could only have been told to him by Andrew. Secondly, Mr Maiava made a contemporaneous note in his diary of the substance of what he said Andrew told him. Thirdly, some parts of it including Andrew's concern over his mother's affair and that he and his father acted jointly is corroborated by what he said to Mr Lau when trying to get him to provide a false alibi - that is, "me and my dad killed some guy...we chased him...we crashed his car ... smacked him with a hammer and a knife". 29The concern Andrew expressed to Mr Lau and Mr Maiava about his mother's affair was also consistent with evidence Andrew gave, that it was Andrew's religious belief that someone committing adultery is a big deal for someone from an Islamic perspective, that it was a terribly shameful thing from an Islamic point of view, that the woman involved was doing the wrong thing, and that the man should not be doing it. 30I find that by no later than when Andrew and Hazairin left home that night they were engaged in a joint criminal enterprise to kill the Deceased. Their motive in doing so was to punish him for being in a relationship with Nita Iskandar. It is clear from the evidence of Mr Lau and Mr Maiava that the planning must have preceded the night of the killing and that there was a joint criminal enterprise from earlier than that night, but the evidence does not allow me to say how much earlier it began. 31At this point I should say something about Nada Bailey and Janine Cahill. They were exceptionally brave and selfless women. Without any concern for their own safety they came to the aid of a man being viciously assaulted by two men who had, and were perceived by these women to have, lethal weapons. It was very late at night and there were apparently no other persons in the vicinity. Ms Bailey even attempted to protect the man with her own body from further assaults, and was herself assaulted by being kicked into the gutter. It is my recommendation that the appropriate authorities give consideration to recognising these women for bravery. 32I turn now to consider Nita Iskandar's involvement. The Crown pointed to two matters which were said to constitute the assistance Nita provided to Andrew in an endeavour to help him evade justice for what he had done. First, the Crown asserted that she lied to police when she told them Andrew was at home at the time of the killing. Secondly, the Crown asserts that she did various things, including the provision of money to Andrew, to enable him to flee to Indonesia a few days after the killing. 33I return now to the facts. Having heard what she did whilst on the telephone to the Deceased, Nita realised that something was wrong. She immediately drove from her home to the Deceased's house in Marion St. She arrived within minutes of the Deceased's being pronounced dead. She tried to get near to the Deceased, telling the police that it was her brother, but she was restrained. She told the police that she had been on the phone to him at the time he was attacked, and that she heard him yelling "Somebody help me". 34Before she returned home that morning Nita spoke to Detective King. When he asked her if she should ring anyone as a support person before he interviewed her, she said that her husband was working and Andrew was at home asleep. She maintained that position about Andrew in her ERISP on 23 February, although she then elaborated by saying that she had actually seen Andrew asleep in bed when she left the house to go to Leichhardt after she heard the attack on the phone. 35In my opinion on the night of the killing Nita honestly believed that Andrew was in bed at home when she left to drive to Leichhardt. A few things suggest that. First, she left a note on the bottom of a tissue box for Andrew telling him where she was going. Secondly, the first telephone call she made to Andrew from Marion St, after she knew the Deceased was dead, was to the Iskandar home phone to speak to Andrew. It was only when that call went unanswered that she rang Andrew on his mobile moments later. Those things were spontaneous acts for which the only alternative explanation could be that, knowing before she left home that Andrew was involved in the murder, she contrived to give him an alibi in those ways. Since she told no-one of the attempted phone call to Andrew on the home phone, she would have to have realised that phone records might be examined and would support her false alibi. That is fanciful. There is no evidence which provides any support for that alternative explanation. 36Further, it is true that Nita had seen Andrew in his bedroom earlier in the evening. She then retired to her own room, and the layout of the house makes it perfectly possible that Andrew could have left the house through the back door without her knowing it. On the night of the killing she held an honest belief that Andrew was at home at the time the Deceased was attacked and killed. 37At some time thereafter Nita realised that Andrew was involved in the killing. This must have been no later than at some point during Nita's ERISP because that concluded at 11.00pm on 23 February, and in the early hours of 24 February, not long after she returned home, Nita rang a friend who was a travel agent to try to organise plane tickets to Indonesia. 38There is another event which might suggest Nita knew earlier of Andrew's involvement. At 7.06am on 22 February she spoke to Hazairin on the telephone. Andrew said that he heard her say "You have poisoned the child". That is a remark strongly suggestive of knowledge in Nita that Andrew was, at the very least, present when Hazairin killed the Deceased. Its significance is that her ERISP was conducted on the following day, and she told the police in that interview that she had seen Andrew in bed on the night concerned when, clearly, he was not there, even on his own sanitised account of the events. 39Mr Price of Counsel, who appeared for Nita, addressed the jury on the statement about poisoning the child. He said what it must have meant was that by what he had done Hazairin had poisoned Andrew's life, a young man due to start University that week. When regard is had to the two telephone calls between Nita and Hazairin after his arrest, this explanation of the statement is not entirely far-fetched. In those telephone calls the concern of both parents was for Andrew's protection and welfare, including protection from the embarrassment that publicity about Hazairin's involvement in the killing of the Deceased would bring to Andrew. Those calls could be interpreted as planning for his flight from Australia but they might have had an innocent purpose, namely, his general welfare in the light of what, by that time, Nita knew Hazairin had done. In those circumstances I cannot be satisfied beyond reasonable doubt that the statement about poisoning the child demonstrated knowledge on Nita's part of Andrew's involvement in the killing. I do not find, therefore, that Nita lied in her ERISP about where Andrew was on the night of the killing. 40In my opinion her assistance to Andrew is confined to the provision of money to leave Australia and relatively minor associated acts such as endeavouring to arrange tickets for him through her travel agent friend. 41Andrew Iskandar's evidence was that his father rang him from custody and told him he should go to Indonesia to bring some of his father's relatives to Australia. His father told him there was money for all the airfares under a pillow in the bedroom. Andrew's evidence was that that was where the money came from. 42The jury must have rejected this evidence. This was not at all surprising because the jury had seen the DVD of the execution of the search warrant at the Iskandar home. It was clear beyond doubt from that DVD that there was no money under or in any pillow in the house. The DVD further demonstrated from the thoroughness of the police search that there was no money elsewhere in the house. The jury must have concluded, and I so find beyond reasonable doubt, that the source of the money given to Andrew to enable him to fly out of Australia was Nita Iskandar. Subjective features (1) Andrew Iskandar 43Andrew Iskandar was examined by Dr Olav Nielssen, a psychiatrist, on 20 October 2011 during the course of his trial. He was examined by Mr Sam Borenstein, a clinical psychologist, on 31 January 2012. Andrew told both the psychiatrist and the psychologist that both his parents disciplined him physically. Hazairin appears to have been a controlling, demanding and strict father. Andrew claimed to be fearful of him and fearful of not complying with his father's demands because a failure to comply led to verbal and, at times, physical abuse. 44Both of these professionals make reference to Andrew suffering from depression although Dr Neilssen thought it was in partial remission. Mr Borenstein considered that Andrew Iskandar was depressed when he saw him. Of course, by that time, Andrew had been convicted of murder. 45To the extent that the history given by Andrew to each of these professionals was the basis for their conclusions, I have some concerns because of the inconsistencies in those histories. He told Dr Neilssen that he had witnessed violence between his parents but said the police and child welfare agencies were never called. On the other hand he told Mr Borenstein that his parents frequently fought and there were occasions when police were called to the house as a result of the fighting. 46He told both Dr Nielssen and Mr Borenstein of a suicide attempt he made in gaol which was prevented by his cellmate. He also described a suicide attempt at the age of 16 to Mr Borenstein but said nothing at all about this to Dr Nielssen. 47He told Dr Nielssen that his parents were sociable and were involved in the Indonesian community in Sydney but he told Mr Borenstein that he and his family had few social outlets. 48He told Dr Nielssen that he had never had a girlfriend because his father, who was a strict Muslim, did not permit him to socialise with girls. He told Mr Borenstein that it was his mother who told him he was not permitted to have a girlfriend and was not permitted to socialise with the opposite sex. 49What is consistent in these reports is that Andrew was brought up by two strict parents both of whom inflicted physical punishments on him when they considered it appropriate. If he is to be believed, those physical punishments went beyond what ordinary people would consider appropriate discipline. Further, it is apparent that his parents' marriage was not a happy one, and his father was a very controlling individual as far as Andrew was concerned. 50Andrew also recounted to the professionals intrusive behaviour on his mother's part when he was aged between 10 and 18, where she would regularly examine his genitals to see that they were in working order, and she would make enquiries about his bodily functions. It was difficult to reconcile this with the obvious strong rapport between Andrew and his mother throughout the trial and the way he spoke about her in his evidence. Whilst I note this matter in relation to Andrew, the professionals do not draw any conclusions from it. Nor can I. I do not have any regard to it as far as Nita is concerned. 51What he told the professionals about his mother generally does not sit easily with the evidence he gave in Court where he described his mother as a good mother who just encouraged him to do well in his schooling. He told the professionals that she made him study all of the time, indeed watching over him for hours whilst he studied, and that he was expected to undergo a considerable amount of extra tutoring. He also told Mr Borenstein that once when he fell asleep whilst studying she hit him with a broomstick which left bruises. He also recounted an incident where he said she punched him in the head without explanation when he was purchasing fish and chips for lunch. I note these matters when considering Andrew's background but I do not use them against Nita who has had no ability to respond to them. 52Despite the inconsistencies in the histories I accept the conclusion of Dr Nielssen and Mr Borenstein that Andrew has suffered from a depressive illness for which he is still being treated. Mr Borenstein attributes this largely to the verbal and physical abuse he was subjected to as a child. 53The significant conclusion to which Dr Nielssen came was that, based on the account provided by Andrew: It seems likely that he committed the offence in part because he was obliged to his father and afraid of him. Mr Borenstein said that he concurred with this observation. 54The difficulty about this conclusion is that it was not consistent, for the large part, with the evidence that Andrew gave during the trial. Certainly he was in the car with his father at Cromwell Street, Leichhardt, although, on his account of things, that was by a mutual arrangement for a driving lesson, at least up until the time his father commenced driving after dinner. Thereafter the only evidence he gave of doing anything at his father's behest was hitting the Deceased with the hammer after he (Andrew) had voluntarily come to his father's assistance, and ringing Victor Lau to arrange a false alibi. He gave no evidence that his father required him to take part in the killing of the Deceased nor to do other than strike him the one blow with the hammer. He did not suggest in any way to Mr Lau nor Mr Maiava that he had acted at his father's behest when he described to them what had happened. Indeed, what I conclude from their evidence is that he (Andrew) wanted to deal with the Deceased because he could not handle the idea of his mother having an affair with the Deceased. 55I can accept, however, that his father is likely to have been the moving influence in what was arranged and perpetrated. On all of the psychiatric and psychological evidence his father was a dominant and controlling man, and Andrew was to some extent scared of him, and certainly scared of incurring his displeasure. On the balance of probabilities I find that Andrew followed his father's lead in what was done by reason of the unequal relationship. Nevertheless, I find beyond reasonable doubt that Andrew's own motive in acting as he did coincided with his father's motive. 56Nothing that appears in the reports of Dr Nielssen and Mr Borenstein justifies the conclusion that they reach. The conclusion is contrary to all of the evidence in the case. I find beyond reasonable doubt that Andrew's involvement in the murder was not as a result of any direction, order or pressure from his father or any feeling of obligation to him. 57Andrew is the only son of his parents. He was born in Sydney and attended Croydon Park Public School, Sydney Technical High School in Bexley and then Ashfield Boys High School. He left high school in year 11 but returned to finish his Higher School Certificate over 3 years at TAFE with an ATAR of 69. He completed his HSC in 2009. He had enrolled in a Bachelor of Business and Commerce degree at the University of Western Sydney which was to commence on 9 February 2010. By reason of his flight to Singapore and his subsequent arrest he did not commence that course. 58I was informed at the sentencing hearing that he has enrolled in a university degree in prison which I assume he is doing through distance education. No more details were provided. 59But for one answer he gave in cross-examination at the trial I cannot find that Andrew has shown any remorse for what he did. He was asked by the Crown Prosecutor if he regretted that the Deceased died, and he said "I wish he was still alive". 60It is noteworthy that, although Mr Borenstein expresses agreement with Dr Nielssen's observation that it seems likely Andrew committed the offence in part because he was obliged to his father and afraid of him, there is no mention in Mr Borenstein's reports of the offence itself or any response of Andrew to the killing. (Dr Nielssen's examination of Andrew took place during the trial, so I would not have expected any comment on the facts of the case in his report.) Andrew did not give evidence at the sentencing hearing. The account of the night in question he gave at the trial did not contain any acknowledgement of his involvement in the offence apart from the one blow he struck with the hammer which he said was in self defence. 61At the sentencing hearing a Statement by Detective Sergeant Munro, the Investigating Officer in relation to the Deceased's murder, was tendered in evidence. The Statement recorded an incident that Sergeant Munro said occurred on 16 November 2011 during the course of the trial. He was sitting in the public area of the Court with Janese Campbell, the ex-wife of the Deceased. 62The Statement went on to say: [4] The jury retired for their luncheon break at the usual time of 1pm at the direction of His Honour Justice Davies. The accused was escorted back to the dock area and stood beside his mother. As the Jury members were still walking out of the Courtroom, the accused turned and looked at Janese Campbell and I. The last of the jury members were almost out of the Court and as such had their backs towards those remaining in the Courtroom. We were the only two people sitting at the rear of the Court, there were no other persons between Andrew Iskandar and us. When he turned and looked at us, he smirked, then laughed in an evil unremorseful way whilst still looking at us. Janese Campbell appeared shocked, as did I at his attitude towards the murder of Mohd Shah Saemin. Janese Campbell then mouthed the words "You liar" towards Andrew Iskandar. He then turned back, and was shortly after escorted out of the Courtroom by Corrective Services Officers. During the luncheon break I made notes in my diary on the A4 page allocated to the date of 16th November. 63Sergeant Munro said on that day that Andrew Iskandar was giving evidence. Sergeant Munro was cross-examined about this statement and he said that he relayed the matter to the solicitor instructing the Crown Prosecutor on the day it happened. The solicitor gave evidence also that Sergeant Munro had spoken to her and related the events recorded in his Statement. 64Sergeant Munro was cross-examined about his memory of this event. It was apparent from an examination of the transcript that he was mistaken about the fact that Andrew Iskandar was giving evidence on 16 November. On that day the transcript discloses that the Crown Prosecutor was giving her closing address to the jury. 65Sergeant Munro is undoubtedly mistaken about what happened in Court on that day in terms of whether Andrew Iskandar gave evidence. However, the contemporaneous note made by Sergeant Munro in his diary for 16 November of the matters in his Statement together with the evidence of the instructing solicitor from the DPP satisfies me beyond reasonable doubt that Sergeant Munro saw Andrew Iskandar doing what Sergeant Munro described as laughing and smirking at him and Ms Campbell on that day. 66The question is what impact this behaviour should be regarded as having on any question of remorse. 67In my opinion I should not attach any significance to this event. Drawing particular conclusions from the fact that somebody laughed is always fraught with danger. Concluding that a laugh is a smirk is a subjective matter. A statement that someone laughed in an "evil, unremorseful way" itself bespeaks a very subjective inference. Some people laugh when they are nervous and not for any malicious purpose. What is a smirk to one person might be a wry, ironic smile to another. Although Sergeant Munro honestly believed Andrew was behaving in a malicious fashion by his facial expression, I do not think that I can draw any such conclusion, at least beyond reasonable doubt. Had I seen it for myself it would have been inappropriate for me to draw such a conclusion, a fortiori, when I am hearing it from someone else. 68The fact nevertheless remains that, apart from the one answer by Andrew in his evidence, I have no evidence upon which I can find that Andrew Iskandar has demonstrated any remorse. I note that Mr O'Sullivan of counsel for Andrew Iskandar informed me at the sentencing hearing that Andrew maintains that he is not guilty and is not expressing any remorse. (2) Nita Iskandar 69Nita was born on 20 March 1963 in Indonesia. She is now aged almost 49 years. I have noted earlier her marriage and their coming to live in Australia. She had obtained a Bachelor of Teaching in Indonesia but she did not teach after settling in Australia. She worked in a factory here and undertook an advanced certificate of Accounting at TAFE. She commenced working at the Malaysian Consulate in Sydney as a clerk/typist in August 2001. She subsequently became Accounts Clerk at the Consulate. 70Nita was examined by Terry Smith, a clinical psychologist, on 30 January 2012. What is apparent from the history taken by Mr Smith is that Nita appears to be in denial about a number of matters including Andrew's knowledge of her affair with the Deceased at the time he left for Indonesia after the killing and Andrew's involvement in the death of the Deceased. She denied that Andrew disclosed anything about his involvement in the Deceased's death before leaving for Indonesia, and she said that he went there only because Hazairin requested him to do so. She said that her husband got the money to pay for his departure, and she let Andrew go because he did not know about the affair and did not want him to find out about it from the media. She still maintained that Andrew was sleeping in the house when she left to go over to Leichhardt having heard the Deceased's cries for help on the telephone. 71Her evidence to Mr Smith about her relationship with her husband did not sit easily in all respects with what she told the police in her ERISP. She told Mr Smith that there was no violence or trauma in the marriage but that her husband was very controlling. She told the police that he had hit her and that he spat at her. 72She made clear to Mr Smith that the important thing in her life was to be there for Andrew. She also said: I did not lie: I believed my son was asleep at home when it happened, and that is what I believe to this day and I will believe it forever ... he did not know about my relationship with this man; all he knew we worked together ... I am very sorry a man has lost his life because of the jealousy of my husband: my heart grieves for his family and I have lost the man I love ... my sin to have a relationship has punished my family too much: I just want my son home. 73Since the murder she said her life had been very bad. It led her to consult a psychiatrist and she has been prescribed with the antidepressant Mirtazapine. Mr Smith considered that she suffered a range of depressive and anxiety symptoms in relation to the anticipated difficulties about the refusal of her husband to grant a divorce and of her pursuing a highly desired relationship and marriage with the Deceased. He said, however, that these symptoms did not impair her capacity to function in her personal or vocational life. 74Mr Smith said that Nita remains mortified that her son is apart from her care, and that she expressed suicidal intention if he is not returned to her care. She believes that her world will return to normal when her son is released from custody. Mr Smith expressed the opinion that if Andrew was incarcerated there might be a period of risk of self harm but once this passes it is expected she will steel herself and work to maintain the family home waiting for his return. 75Mr Smith says the prognosis of Mrs Iskander appears to be based in the protective behaviours she can and will exhibit for the need of her son. He said her offending relates to protecting her son rather than to any positive criminal intent to breach any law. Her distorted logic and myopic emotional constriction about the needs of her son dominates her perceptions, and she could perhaps be convinced by him to say or do irregular things for him. This is a relevant matter for what sentence should be imposed. 76Nita was also assessed by the Probation and Parole Service on 2 February 2012. The brief history she provided to them was consistent with what was provided to Mr Smith. She reiterated that she was certain that Andrew had been unaware of her extramarital affair. She said also that she did not believe that he had been involved in the death of the Deceased and, therefore, she did not believe that she was committing an offence by assisting him to leave the country. 77The report disclosed that Nita has been under the care of a psychiatrist and also an occupational therapist. No reports were tendered on the sentencing hearing from these persons. The Probation and Parole report made telephone contact with the psychiatrist who reported that Nita presented depressive disorder and symptoms of post-traumatic stressors for which she has been prescribed Mirtazapine (as Mr Smith had noted). The dosage of this has been increased from 30mg to 45mg. 78The report indicated that Nita was assessed as unlikely to require or benefit from supervision by the Probation and Parole Service because she was seeking psychological intervention of her own volition. It was said that there was little the Service could offer her beyond monitoring her attendance and compliance with its intervention. 79Nita has no prior criminal record. Legal Principles (1) Nita Iskandar 80Cases involving accessories after the fact to murder embrace a wide range of offending. Buddin J conveniently collected extracts from the relevant cases in R v Cowen [2008] NSWSC 104 at [15] - [26]. It is not necessary to set out all of those paragraphs. I draw attention, however, to what was said in R v Dileski [2002] NSWCCA 345 where Hidden J (with whom Adams J agreed) said: In many cases of this kind the offender's conduct is the product of emotional attachment or dependence, or a misguided sense of loyalty. No doubt, that accounts for most, if not all, of the cases in the Judicial Commission statistics which were disposed of otherwise than by fulltime custodial sentences. 81Buddin J went on to point out that those remarks should not be taken to suggest that an offence which is committed out of a misguided sense of loyalty will inevitably lead to the imposition of a lenient penalty, and he referred to R v Ward [2004] NSWSC 420 at [49] - [51]. The reason for this is that, as Thomas JA observed in R v Hawken (1986) 27 A Crim R 42 at 38: ... it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes be not covered up. In that regard I cannot ignore the fact that the maximum penalty for this offence is 25 years imprisonment. 82What Nita did in this case was a serious act of assistance by enabling Andrew Iskandar to flee the jurisdiction. The result was that the authorities were put to the trouble and expense of having to fly to Singapore and to bring him back to Australia. It was assistance of the clearest kind with at least one of her intentions being to enable Andrew to evade or escape justice. 83Nevertheless, as wrong as they were, her actions are understandable, if not excusable, as the actions of a mother to assist her only child. That must also be seen in the context of a loveless marriage. The impression I have from the reports of the professionals is that she lived only for her son. I cannot overlook the mixed emotions that must have influenced her actions. Her lover had been brutally slain even while she was on the telephone to him. She found out, relatively quickly, that her husband was one of the perpetrators. Her concern at that point was only for her son and how the events would impact upon him. He was due to start University that very week. When she came to realise that Andrew had some involvement her continuing thought was how she can protect him. If he was taken from her (by being imprisoned) she would have nothing to live for, as the report of Mr Smith makes clear. 84In my opinion, the offending was low on the scale of objective seriousness. 85I note s 5 of the Crimes (Sentencing Procedure) Act 1999 which provides the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Because of the nature of the offending, its success in enabling his (temporary) escape (see R v Mackett [2012] NSWSC 166 at [22]), and in the light of the fact that Nita Iskandar shows no evidence of remorse for the acts she committed (because she appears to be in denial about her son's involvement in the murder), I do not consider that any other sentence other than a period of imprisonment is appropriate. I consider that the appropriate period of imprisonment is for two years but that that sentence should be wholly suspended. I take that course for these reasons. First, Nita Iskandar has no prior criminal record. Secondly, subject to one matter she is unlikely ever to offend again. Thirdly, she has already undertaken treatment and counselling to deal with her emotional needs which might be thought to have brought about the offending in the first place. 86The one matter concerning reoffending is the conclusion of Mr Smith that she could be convinced by Andrew to do irregular things for him. One consequence of the suspended sentence is that Nita will be subject to a bond for the period of the sentence. In my opinion, that period will be sufficient to enable Nita to adjust to Andrew's incarceration (as Mr Smith said), so that by the conclusion of the sentence her chances of reoffending will be very unlikely. 87I note that Nita spent 15 days in custody after her arrest until her release on bail, such bail having been continued up to the present time. She is entitled to a credit of 15 days on the sentence which would otherwise have been imposed. (2) Andrew Iskandar 88The starting point is that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 at 293. It is the responsibility of the Courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31]. 89The maximum penalty for murder is life imprisonment. There is a standard non-parole period in the present case of 20 years. I note what was said in Muldrock v The Queen [2011] HCA 39 at [17], [20], [25] - [27] and [29] of the way the standard non-parole period is to be dealt with. What remains unclear from Muldrock is whether any assessment should be made of where in the range of objective seriousness the offence lies: R v Koloamatangi [2011] NSWCCA 288 at [19]. Nevertheless, since the High Court discussed how the objective seriousness of an offence is to be assessed, that is without reference to matters personal to a particular offender or class of offenders (see at [27]), it may reasonably be inferred that what appears to be a general proscription at [25] is more particularly directed to the two-stage approach to sentencing criticised in the judgment. 90In assessing its objective seriousness wholly by reference to the nature of the offending, the murder in the present case must be regarded as a serious and brutal one aggravated by the weapons used, the fact that it was committed in company, and the extended period of the assault. 91If one adds into the synthesis the motive for the murder its overall seriousness is increased. This murder has been described as an honour killing. So to describe it invests with it a degree of legitimacy that it does not, and can never, have. No society or culture that regards itself as civilised can tolerate to any extent, or make any allowance for, the killing of another person for such an amorphous concept as honour. Further, the whole basis and origin of honour killings is the notion that a woman is the chattel or possession of a man, whether her father, her husband, or some other patriarchal figure. Such a notion has no place in this country. 92The motive for this murder means that general deterrence assumes some importance in the determination of the sentence. 93Matters which I take into account as mitigating factors are Andrew's age at the commission of the offence, his relationship with his father, and the fact that he does not have any prior criminal record. 94As to the first of these, in KT v R [2008] NSWCCA 51 McClellan CJ at CL reviewed the authorities relating to sentencing juveniles. He said: [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes , particularly crimes involving physical violence to persons in their own homes... [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity ( R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age ( R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth ( Hearne at [27]). 95Mr O'Sullivan has provided me with a summary of a number of cases involving young offenders aged between 15 and 20 sentenced for murder. I have had regard to this summary and noted the sentences, but ultimately every case must be judged on its own facts. 96This was a grave crime committed with pre-planning and considerable violence, with weapons, and in company when Andrew was 19 years of age. His relative youth entitles him to some, but not great consideration, for the purposes of rehabilitation. 97As far as his relationship with his father is concerned, I have discussed this earlier. It is, to a small degree, a matter of mitigation. 98Mr O'Sullivan submitted that Andrew's involvement was such that I should see his conduct as less culpable than that of Hazairin, and that that was particularly so because it was Hazairin who was responsible for his death by stabbing him. Reference was made to R v JW [2010] NSWCCA 49, and I note what is said there at [158] - [167]. In the light of the facts that I have found, including the repeated blows that were struck by Andrew with the hammer, I do not consider that there was less culpability simply because it was Hazairin's action that ultimately killed the Deceased. That may have been serendipitous. 99Mr O'Sullivan also drew attention to the assessment of the psychiatrist and the psychologist that Andrew suffered and continues to suffer from a depressive illness. He submitted that general deterrence had a lesser role to play by reason of that illness. Those professionals do not, however, make any link between his depression and his involvement in the killing. Indeed, their only partial explanation of his involvement is the influence of his father that I have earlier discussed. 100Mr O'Sullivan has urged upon me that I should find special circumstances because of Andrew's age, lack of criminal record and his prospects for rehabilitation. In R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Spigelman CJ (with whom Mason P, Grove J, Newman A-J agreed, and Sully J in substance agreed in a short additional judgment) said: [59] ... The sentencing context in which [ the words "special circumstances"] appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power, [ Power v The Queen (1974) 131 CLR 623] which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected. 101I consider that there should be some small adjustment to the statutory ratio by reason of the special circumstances including Andrew's age, his lack of a criminal record and his prospects of rehabilitation. 102Taking all of these matters into account I consider that the appropriate non-parole period is a period of 18 years with an additional term of 7 years. He has been in custody since his arrest in Singapore on 21 May 2010. His sentence will commence on that day. Sentence 103Andrew Iskandar for the murder of Mohd Shah Saemin I sentence you to a minimum term of 18 years imprisonment commencing 21 May 2010 and expiring 20 May 2028 with an additional term of 7 years expiring 20 May 2035. 104Nita Iskandar for being an accessory after the fact to the murder of Mohd Shah Saemin I sentence you to imprisonment for 1 year 11 months and 15 days commencing 16 March 2012 and expiring 28 February 2014, such sentence to be wholly suspended. You are to enter into a bond to be of good behaviour for a period of 1 year 11 months and 15 days commencing 16 March 2012 and expiring 28 February 2013. The bond is to contain conditions: (a) that you will be of good behaviour during the term of the bond; (b) that you are to appear before the Court if called upon to do so at any time during the term of the bond; (c) that you are to accept the supervision of the Probation and Parole Service and to obey all reasonable directions for counselling and to report to the Burwood Probation office within 7 days. ********** Amendments 13 December 2019 - Publication restriction removed from 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: 13 December 2019