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R v A1 (No. 6)

R v A1 (No. 6)

Case [2019] NSWSC 1581 15 November 2019

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v A1 (No. 6) [2019] NSWSC 1581
Hearing dates: 4 October 2019
Date of orders: 15 November 2019
Decision date: 15 November 2019
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
The Offender is convicted and sentenced to imprisonment for a term of 32 years comprising a non-parole period of 23 years commencing on 7 October 2016 and expiring on 6 October 2039, with a balance of term of nine years commencing on 7 October 2039 and expiring on 6 October 2048.
The earliest date upon which the Offender will be eligible for release on parole is 7 October 2039.

Catchwords: CRIMINAL LAW – SENTENCE – MURDER – offender found guilty following trial by jury – victim shot six times in the head and once in chest – victim and offender’s wife involved in a relationship – where offender’s motive related to his outrage at the relationship between the victim and the offender’s wife and his sense of cultural dishonour – planned offence committed with intent to kill – whether offender provoked by victim attracting operation of s.21A(3)(c) Crimes (Sentencing Procedure) Act 1999 – characterisation as an “honour killing” unhelpful to offender – no “honour” in murder – offence fell markedly above mid-range of objective seriousness – general and specific deterrence important factors on sentence – absence of remorse – consideration of totality arising from accumulation of sentence on pre-existing sentence – limited finding of special circumstances – offender sentenced to imprisonment for 32 years with a non-parole period of 23 years.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hamidzadeh v R (2013) 1 NZLR 369; [2012] NZCA 550
Imbornone v R [2017] NSWCCA 144
R v A1 (No. 1) [2019] NSWSC 611
R v Ali [2011] EWCA Crim 1011
R v Campbell [2016] QCA 42
R v Freeman [2015] VSC 506
R v Andrew Iskandar; R v Nita Iskandar (No. 4) [2012] NSWSC 149
R v Hazairin Iskandar [2012] NSWSC 1324
Andrew Iskandar v R [2013] NSWCCA 235
R v Khan (1996) 86 A Crim R 552
R v Khan [2016] 1 Cr App R (S) 47; [2015] EWCA Crim 1816
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Rajab and Ors [2017] NSWSC 975
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v White (Court of Criminal Appeal, 23 June 1998, unreported)
Tepania v R [2018] NSWCCA 247
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Tyne v Tasmania (2005) 15 Tas R 221; [2005] TASSC 119
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Texts Cited: ---
Category: Sentence
Parties: Regina (Crown)
A1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A1 (No. 6)

Details

AGLC: R v A1 (No. 6) [2019] NSWSC 1581
Case: [2019] NSWSC 1581
Decision Date: 15 November 2019

CaseChat Overview and Summary

In this matter, the respondent, A1, was found guilty by a jury of the murder of a victim who had been shot multiple times, including six times in the head and once in the chest. The victim had been in a relationship with the respondent’s wife, which formed the basis of the respondent's motive. The respondent's sense of cultural dishonour and outrage at the relationship culminated in the planned and intentional killing. The court was tasked with determining the appropriate sentence, considering various legal issues, including whether the respondent's actions were provoked by the victim in a manner that might attract the provisions of s.21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999. Additionally, the court examined whether characterising the offence as an "honour killing" would impact the sentencing, as well as the general and specific deterrence factors, the absence of remorse, and the impact of the totality principle in light of the respondent's pre-existing sentence.

The court found that while the victim's relationship with the respondent's wife was a significant factor, it did not constitute provocation under s.21A(3)(c). The characterisation of the offence as an "honour killing" was deemed unhelpful and not mitigating. The court concluded that no honour existed in murder, and the offence was markedly above the mid-range of objective seriousness. The importance of general and specific deterrence was emphasised, alongside the respondent's lack of remorse. The court also considered the totality principle, recognising the cumulative effect of the sentence on the respondent's pre-existing sentence. Special circumstances were found to a limited extent, and the court ultimately determined an appropriate sentence that balanced these considerations.

The respondent was sentenced to imprisonment for 32 years with a non-parole period of 23 years, reflecting the gravity of the crime and the need for deterrence and retribution. The court's decision was based on a comprehensive analysis of the aggravating and mitigating factors, ensuring that justice was served in line with the statutory requirements and the overarching principles of sentencing.

Orders