R v Fahda - [2013] NSWCCA 86

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Fahda [2013] NSWCCA 86
Hearing dates: 11/12/2012
Decision date: 26 April 2013
Before: Simpson J at [1]
Fullerton J at [44]
Davies J at [149]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - murder - whether sentence is manifestly inadequate - whether sentencing judge erred in assessment of objective seriousness of offence - whether sentencing judge erred in assessing respondent's prospects of rehabilitation - whether sentencing judge erred in assessing extent of respondent's intellectual impairment - whether sentencing judge erred in approach to respondent's mental illness
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Firearms Act 1996
Cases Cited: Beldon v R [2012] NSWCCA 194
Bugmy v R [1990] HCA 18; 169 CLR 525
Devaney v R [2012] NSWCCA 285
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1
Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575
Hanania v R [2012] NSWCCA 220
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Koloamatangi [2011] NSWCCA 288
Mulato v R [2006] NSWCCA 282
Muldrock v R [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267
R v Borg [2010] NSWSC 951
R v Cooper [2005] NSWSC 791
R v Edwards [2009] NSWSC 164
R v Engert (1995) 84 A Crim R 67
R v George [2004] NSWCCA 247; 149 A Crim R 38
R v Harvey [2007] NSWSC 871
R v Heffernan [2005] NSWSC 739
R v Hemsley [2004] NSWCCA 228
R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252
R v Holcroft [2010] NSWSC 1294
R v Jones [2010] NSWSC 432
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Koloamatangi [2011] NSWCCA 288
R v Mulato [2006] NSWCCA 282
R v Nelson (Court of Criminal Appeal, 25 June 1996, unreported)
R v Pocock [2008] NSWSC 1435
R v Robinson [2002] NSWCCA 359
R v Saalfeld [2007] NSWSC 376
R v Shamouil [2009] NSWSC 24
R v Shepherd [2006] NSWSC 799
R v Wilson [2005] NSWCCA 112; 153 A Crim R 257
R v Windle [2012] NSWCCA 222
Versluys v R [2008] NSWCCA 76
Category: Principal judgment
Parties: The Crown
Mohammed Fahda (Respondent)
Representation: Counsel:
M Cinque/L Mathias (Crown)
J Stratton SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of New South Wales (Respondent)

File Number(s): 2009/39990
Decision under appeal

Citation:

[2012] NSWSC 114

Date of Decision:

2012-02-24 00:00:00

Before:

Harrison J

File Number(s):

2009/39990

Judgment

SIMPSON J: I have read in draft the judgment of Fullerton J, in which the facts and circumstances of the offence have been set out. While I agree (after considerable hesitation) with the order her Honour proposes (to dismiss the Crown appeal) I wish to state my own reasoning for that conclusion in respect of the grounds numbered 1 and 3.

I begin by observing that, as the conviction of the respondent followed a lengthy jury trial, there is no agreed statement of facts. It was the task of the trial judge to find the facts, in accordance with the evidence, and not inconsistently with the jury's verdict. In this case, that task included having due regard to the jury's rejection of the defences or partial defences of self-defence (Crimes Act, Pt 11, Div 3), provocation (Crimes Act, s 23) and substantial impairment (Crimes Act, s 23A).

Harrison J undertook that task. The evidentiary material placed before this Court was limited. It did not extend to the transcript of the trial. To the extent that the grounds of appeal challenge the factual foundations of the sentence, the absence of that material creates a problem for the appellant.

Ground 1: error in finding mid-range objective gravity

The starting point in considering this ground must be recognition of the principle stated in Mulato v R [2006] NSWCCA 282 at [37] and [46]. Assessment of objective seriousness of an offence is the role of the sentencing judge. While such an assessment is not immune to appellate review, any interference with the findings of the sentencing judge must be founded upon one of the errors specified in House v The King [1936] HCA 40; 55 CLR 499: acting on a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision, mistake of facts, failure to take into account some material consideration, or production of a result that is unreasonable or plainly unjust, indicative in itself of a failure properly to exercise the power conferred.

In this case, the assessment of the objective gravity of the murder as lying in the mid-range depended upon an array of factual findings emerging from the evidence, together with an evaluation of the significance of at least some of those facts. In R v Koloamatangi [2011] NSWCCA 288, at [51] Basten JA (with whom Adams and Johnson JJ agreed) saw the superior position of the trial judge in these circumstances as "accentuating" the appellate court's reluctance to interfere in the assessment. His Honour nevertheless also emphasised the duty of the appellate court to intervene where error is established.

Undoubtedly, there were features of this offence that pointed to objective seriousness of a high degree. These were:

(i) the respondent was habitually, and was on the day of the murder, unlawfully armed with a handgun;

(ii) after an encounter with Mr Darwiche, and a conversation in which Mr Darwiche identified himself to the respondent and threatened him, the respondent returned to his vehicle, armed himself with the gun, and approached Mr Darwiche's vehicle;

(iii) the respondent, at short range, fired 12 shots, seven of which entered Mr Darwiche's body, through the open passenger window of the vehicle occupied by Mr Darwiche;

(iv) the respondent's intention was to kill Mr Darwiche.

(v) Mr Darwiche was in a vulnerable position, being seated in the driver's seat of a stationary vehicle, and in no position to make any attempt to escape;

(vi) although the name of Darwiche was obviously known to the respondent, it seems that the two were not previously acquainted. (The account of the facts accepted by the sentencing judge suggested that the respondent was somewhat taken aback when Mr Darwiche identified himself);

(vii) the respondent had no reason to believe that Mr Darwiche was armed, and, indeed, he was not;

(viii) the shooting took place in a public car park, part of a shopping complex, on a Saturday afternoon, when it could be expected that members of the public, including children and families, would be present; and

(ix) Mr Darwiche's wife and children were in fact present and witnessed the shooting.

There are some uncontroversial ameliorating relevant circumstances, although these are slight. These are:

(i) the respondent and Mr Darwiche were present in the car park coincidentally, pursuant to no prearrangement or organisation on either side;

(ii) the shooting was entirely unplanned, unpremeditated and spontaneous on the part of the respondent.

More controversial ameliorating features, although subject to separate grounds of appeal, are the respondent's mental or psychiatric state, and his low level of intellectual functioning.

The Crown's submissions in respect of this ground appear to propose that three specific errors affected the assessment that the offence fell into the mid-range of objective gravity of offences of the kind. These were identified as:

(i) that his Honour erred in relying on certain of the authorities cited to him on behalf of the respondent;

(ii) that his Honour erred in finding provocation for the purposes of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act");

(iii) that his Honour erred in having little or no regard for aggravating features identified by the Crown.

It is necessary to deal with each of these in turn.

(i) reliance upon authorities

The authorities to which the Crown referred are R v Shepherd [2006] NSWSC 799; R v Saalfeld [2007] NSWSC 376; R v Cooper [2005] NSWSC 791 and Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267.

In the last of these cases, Smart AJ with whom Adams J agreed, said:

"[143] An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness."

It is true, as the Crown contends, that these cases are not authority for any general principle that "offences without planning will usually fall below the mid-range of objective seriousness". Each was an instance of a conviction for murder in which the finding of objective seriousness was below mid-range. In Shepherd and Saalfeld the findings were, respectively, "close to the mid-range but below" and "slightly less than mid-range". In each case that finding resulted from a complex of factors. In each case, the murder was not planned or premeditated. Significantly, in each case, the offender was found to have killed with the intention, not of killing, but of causing grievous bodily harm. The statement by Smart J in Nguyen cannot be converted into an assertion that, where premeditation is absent, the offence cannot be in the mid-range of objective seriousness. The question is, however, whether the sentencing judge here regarded the cases as authority for such a proposition. In my opinion he did not.

The reference to these cases in the Remarks on Sentence was made in the context of his Honour's outline of submissions made on behalf of the Crown and the respondent. The reference was as follows:

"45 In stark contrast to these submissions, senior counsel for the offender contended that this case was far removed from a worst case example of the crime of murder. He offered several reasons for this in support of the ultimate submission that the subject offence fell below the mid-range of objective seriousness for murder. First, there was no premeditation or planning. Offences without planning will usually fall below the mid-range of objective seriousness ..."

He then cited Shepherd, Saalfeld, and Cooper, and quoted the passage extracted above from Nguyen.

In my opinion, a fair reading of this paragraph shows that his Honour intended merely to state the submissions advanced on behalf of the respondent. His Honour at no stage expressly accepted or adopted the proposition that offences without planning will usually fall below the mid-range of objective seriousness. Nor can it be said that he implicitly accepted or adopted that proposition. Had he done so, it might have been expected that he would have acceded to the respondent's primary submission, that this offence fell below the mid-range. He expressly declined to do so.

The Crown has not established error in this respect.

(ii) provocation

In respect of provocation, his Honour made two separate findings - first, that Mr Darwiche said to the respondent words to the effect outlined by the respondent in his evidence (see [17] below), and, second, that that had an effect on the respondent that caused him to lose self-control. (The concept of loss of self-control is drawn from s 23 of the Crimes Act, which provides, in circumstances it specifies, a partial defence of provocation to a charge of murder which reduces the offence to manslaughter. No issue was raised in this appeal whether loss of self-control is integral to, or permissible in, consideration of the mitigating feature of provocation under s 21A(3)(c) of the Sentencing Procedure Act, and I express no view on that question.) It is to be noted that the Crown has not raised, as a discrete ground of appeal, a direct challenge to either of the findings relevant to provocation. The issue is raised only as part of the challenge to the finding of mid-range objective gravity.

There are a number of passages in the Remarks on Sentence that deal with the question of provocation. At [21] the judge referred to a defence submission that the respondent's actions were the result of a loss of self-control brought about by something that Mr Darwiche said to the respondent about the murder of the respondent's brother. Other references to provocation in the Remarks are:

"[22] The evidence in my opinion supports a finding that something happened between the offender and the deceased that caused or provoked the offender to act as he did. It seems apparent that the offender did not take the gun and start shooting immediately upon seeing the deceased. There were two conversations before that occurred ...

[His Honour then recounted the respondent's evidence concerning a conversation he said he had had with Mr Darwiche, in which Mr Darwiche identified himself by name, and as a result of which the respondent was 'in shock'. That is the passage quoted in the judgment of Fullerton J. The respondent said: 'He [Mr Darwiche] threatened my brother Hussein and me. And he said he's going to kill us the way he killed my brother Ahmed.']

...

[26] In my opinion it is apparent, and I find, that there was evidence to support a conclusion that there was a degree of provocation, falling short of the partial defence of provocation at law, which directly affects and mitigates an assessment of the objective seriousness of the crime.

...

[30] In the present case, the words that were uttered to the offender by the deceased, in combination with his particular mental health issues and his perception that the deceased was preventing him from leaving the service station, are circumstances that, although insufficient to constitute an excuse or defence at law, were circumstances that I find amounted to provocation for the purposes of s 21A(3)(c). I have taken them into account in mitigation of the objective criminality of the offence.

...

[46] Secondly, there is evidence of a degree of provocation ...

[68] It is highly likely that the offender's responses to the actual threats that were made to him by the deceased, and the threats that he perceived were being made, such as that the deceased was blocking his exit from the car park, resulted in responses from him that might have been different in a mentally healthy and more intelligent person. I find that what the deceased said to the offender had an impact on his self-control when this crime was committed. In making this finding I have had regard to the medical evidence, which I accept as to the offender's psychiatric disorders. These disorders accounted in part for the impact on the offender's self-control." (italics added)

It is clear enough, from these passages, that his Honour found (i) that the respondent had been provoked by Mr Darwiche's conduct; (ii) that the provocation caused some loss of self-control in the respondent; and (iii) that that provocation had a significant bearing upon the assessment of objective seriousness.

His Honour was conscious that a defence of provocation, under s 23 of the Crimes Act 1900, had been put to the jury and rejected, and that he was bound by that verdict. That did not preclude a finding of provocation as a mitigating factor for the purposes of s 21A(3)(c) of the Sentencing Procedure Act. He made express reference to this in para 17, where he mentioned the defence of self-defence and the partial defences of provocation and substantial impairment, all of which had been rejected by the jury, and added:

"Having regard to the way in they were articulated, however, it was clear that there was a significant relationship between each defence and the offender's subjective circumstances, particularly his level of intellectual function and his mental condition. However, the fact that the jury rejected the defences raised by the offender does not mean that his evidence was rejected or should now be rejected. Nor does it mean that the factual matters underlying the defences cease to have any significance for present purposes."

The provocation aspect of Ground 1 of the appeal had two limbs. In the first instance, and notwithstanding the absence of any ground of appeal to this effect, the Crown challenged the finding in paras [22] and [26], that what had happened between the respondent and Mr Darwiche amounted to "a degree of provocation". In this respect, the Crown relied upon short extracts of summaries from the evidence of three witnesses, two of whom observed the encounter between the respondent and Mr Darwiche prior to the shooting. So far as the extracted evidence goes, neither of those witnesses observed anything in the respondent's demeanour or behaviour that indicated any level of disturbance or discomposure in the respondent following the encounter with Mr Darwiche. The third witness mentioned was Lisa Darwiche, Mr Darwiche's wife. As noted above, the transcript of evidence was not put before this Court; nor was the Court taken to any specific evidence other than those short extracts.

It seems that the Crown relied upon the evidence extracted to support a negative inference - that is, that the respondent was not distressed or disconcerted by the conversation or conversations he had with Mr Darwiche. That would amount to a challenge to the finding of fact that what Mr Darwiche had said had an impact on the respondent's self-control. (It does not appear to be a challenge to the respondent's evidence of what Mr Darwiche said, which his Honour clearly accepted.) An inference of the kind proposed by the Crown is simply not available from the extracts of evidence provided in the written submissions. There is nothing in the short account of the evidence of Lisa Darwiche contained in the Crown's written submissions that bears in any way upon the existence or otherwise of provocation on the part of her husband, or the effect of his conduct upon the respondent. Indeed, the Crown's submissions did not go so far as to explain whether the challenge was to the respondent's evidence of what Mr Darwiche had said, or to its effect on the respondent. His Honour did not, and this Court was not invited to, analyse the basis on which the jury rejected the partial defence of provocation under s 23 of the Crimes Act.

A successful challenge to a sentencing judge's finding of fact must be based on more substantial material than was put before this Court.

The second limb of the Crown's challenge to the provocation finding lay in the weight attributed to it. All that was said in support of the submission was:

"Even if his Honour was entitled to find some level of provocation established, it was of little consequence and should have carried little weight."

It is not possible for this Court to review the evidence relevant to provocation because that evidence has not been put before us, and no comprehensive reference has been made to it. It would be quite inappropriate, and a denial of procedural fairness to one party or the other (or both) for the Court to make its own inquiries to attempt to locate the evidence relevant to the question, or to draw conclusions without the detailed assistance of submissions.

What can be said is that the sentencing judge's findings on the level of provocation were somewhat muted. He said ([26] and [46]) that there was "a degree of provocation" - suggesting that the provocation was somewhat limited. He was conscious that, after the provocative comment was made, the respondent had time to return to his car and drive a distance, before alighting from his car and firing the fatal shots. Similarly his finding concerning loss of self-control was guarded (as it had to be in light of the jury's rejection of provocation as a partial defence). It was that Mr Darwiche's words "had an impact on his self-control".

However, in the respondent's favour, his Honour did not compartmentalise the issue of provocation. In considering objective gravity, he saw the provocation and its effect as intermingled with the respondent's psychiatric disorder ([68]).

Given the facts accepted by the sentencing judge, I would reject the Crown's proposition (see [22] above). In my opinion, the sentencing judge was entitled to give the evidence significant weight. I would reject this criticism of his Honour's findings.

I would reject this aspect of the challenge to the finding concerning objective seriousness.

(iii) aggravating features

The complaint here made by the Crown, that, in assessing objective seriousness, his Honour failed to accord appropriate weight "to the aggravating circumstances posited by the Crown", was not articulated or identified with any clarity. The submissions included:

"This was a case involving deliberate multiple shots from semi automatic pistol in the context of an intention to kill.",

and contained a reference to the presence of women and children in the car park, and that the shooting took place in a public place.

Recourse to the submissions placed before his Honour on sentence (that were before this Court) provides little elucidation of what the Crown then put forward as "aggravating circumstances". Reference was made to the respondent's possession and use of a hand gun, and that it was his habit to carry such a weapon.

His Honour made express reference to this submission in [43] of his Remarks.

In my opinion, his Honour dealt adequately and appropriately with matters that were put to him in respect of aggravating features. No reference was made either at sentencing or on appeal to any item in the s 21A(2) catalogue of aggravating features that was relevant or overlooked, and my own examination of that catalogue shows that there is none. Many of the features there listed are integral to the offence of murder, and therefore not, in the circumstances of a charge of murder, aggravating. None of the specific errors asserted by the Crown are made out.

The Crown's attempt to identify specific error within the House principle therefore fails. That leaves open the final question, whether the result itself shows that the assessment of objective gravity was "unreasonable or plainly unjust", indicative in itself of a failure properly to perform the task of assessing the objective seriousness of the offence.

Even taking into account the ameliorating circumstances, absent what his Honour found to be provocation, the offence would be at a very high level of objective gravity. The question therefore is whether the conduct of Mr Darwiche was such as to permit a finding that what was otherwise a very objectively serious instance of murder could be classified as one within the mid-range of objective gravity. Although his Honour did not frame it in this way, it seems that he accepted that Mr Darwiche taunted the respondent with the fact of his brother's murder by Mr Darwiche's brother, and combined that with a threat to murder both the respondent and another brother of his.

In the circumstances, bearing in mind the Mulato principle, and with some reservation, I accept that it was open to the sentencing judge to reach the conclusion that he did.

I therefore agree, somewhat reluctantly, that ground 1 should fail.

Ground 3: intellectual disadvantage

The finding to which challenge is made under this ground is as follows:

"16 [The respondent] has a very low emotional intelligence, is severely intellectually disadvantaged and lacks insight into his condition, which he has never learned effectively to manage."

The Crown contention was that such a finding was not open. It is therefore necessary to examine the relevant evidence. It derives from psychological and psychiatric reports tendered at trial, and others prepared for sentencing purposes. The first report is of Professor David Greenberg, a forensic psychiatrist, who on 23 August 2011 reported for the purpose of commenting on possible legal defences "with regard to his mental state and possible psychiatric difficulties". In that report Dr Greenberg referred to 1996 intelligence testing which found the respondent to be "of low average intelligence", and to subsequent 2000 testing when the respondent was found to be "in the borderline intellectual functioning range". In his diagnosis, Dr Greenberg accepted that the respondent was of "borderline intellectual functioning". Dr Greenberg reported twice subsequently, on 30 August 2011 and 1 November 2011. He did not change the views he had previously expressed.

Mr Sam Borenstein reported to the respondent's solicitors on 17 March 2011, having administered a series of psychological tests. He recorded the respondent's verbal and performance intelligence as being in the second percentile range, and "extremely low". His verbal comprehension was found to be in the third percentile range, but still "extremely low", as was perceptual organisation and working memory index. Mr Borenstein said:

"Mr Fahda is a man of extremely low intelligence. Mr Fahda's reading age is no better than ten years eight months. His intelligence is no better than the second percentile, compared to aged peers, ie 98% of Mr Fahda's aged peers perform at higher intellectual level than he, which places him at significant disadvantage intellectually. Mr Fahda has a very low emotional intelligence. He lacks insight with regards to the nature of his illness, and has never effectively learned to manage same ... Mr Fahda is compromised both in terms of intellectual disability and psychiatric impairment ..."

A psychiatrist, Dr Olav Nielssen, reported to the respondent's solicitors. On 30 March 2011, he said:

"My impression, based on a single interview, was that Mr Fahda understood the charge and was able to respond to the charge, understood the general nature of the proceedings, was aware of the procedure followed in adversarial legal proceedings, and was capable of understanding legal advice given to him in simple terms and was able to provide reliable instructions based on that advice. Hence in my opinion he is fit to enter a plea and is fit for trial."

In a report dated 29 November 2011, he said:

"My impression from the evidence he gave during the trial was that Mr Fahda's intelligence was within the normal range ..."

The Crown challenge to the finding was based upon the passage extracted from Dr Nielssen's report in which he recorded his "impression" from the evidence given by the respondent in the trial. An "impression" is slight counter to the careful and scientific tests administered by Mr Borenstein.

I agree with Fullerton J that his Honour's finding that the respondent was severely intellectually disadvantaged was amply open to him. I would reject this ground of appeal.

I agree with Fullerton J in respect of the remaining grounds of appeal.

As indicated above, I agree with the orders proposed by Fullerton J.

FULLERTON J: On 13 September 2011 the respondent was convicted by a jury of the murder of Abdul Darwiche. On 24 February 2012 he was sentenced to 20 years imprisonment consisting of a non-parole period of 14 years, to commence on 28 September 2009 and to expire on 27 September 2023, with a balance of term of 6 years to expire on 27 September 2029.

The maximum penalty for murder is life imprisonment to which a standard non-parole period of 20 years applies. This is an appeal from that sentence by the Crown pursuant to s 5D of the Criminal Appeal Act 1912.

The grounds of appeal relied upon by the Crown are as follows:

Ground 1: His Honour erred in finding that the offence fell within the mid range of objective seriousness.

Ground 2: His Honour erred in finding that:

(a) "the offender is a good candidate for rehabilitation and has good prospects of not reoffending"; and

(b) "there are no apparent countervailing factors that suggest that reoffending is likely".

Ground 3: His Honour erred in finding that the respondent was "severely intellectually disadvantaged".

Ground 4: His Honour erred in his approach to the respondent's mental illness.

Ground 5: His Honour erred by failing to impose a sentence that reflected the objective gravity of the offence and the aggravating factors and was manifestly inadequate.

The evidence for sentencing purposes

The appeal was argued referable to the sentencing judge's summary of the facts of the murder together with some additional background information, about which there was no dispute.

The incident

[2] There was little if any relevant dispute about the facts at the trial and the offender admitted at least the following matters. At about 2.30pm on Saturday 14 March 2009 the victim Abdul Darwiche went to eat with his family at the Paradise Cuisine restaurant situated at a small shopping complex on the corner of the Hume Highway and Miller Road at Bass Hill. The complex included a United Petroleum service station. He drove there in his green Mitsubishi Triton 4WD vehicle and parked outside the pharmacy. Members of his family had arrived there earlier.

[3] Shortly after 3.00pm the offender drove his silver Honda CRV into the service station and parked it near some petrol bowsers. He alighted and went into the shop to purchase some items. He returned to his vehicle and moved it to another location directly outside a Subway restaurant at the side of the service station. A short time after that the offender moved the vehicle to another location closer to the corner of the Hume Highway and Miller Road. The offender had arranged to meet another person at the service station. That person arrived driving a black Jeep.

[4] At about this time the deceased left the restaurant and walked to his vehicle. Other members of his family also went to the vehicles in which they had travelled to the restaurant, which were parked in the car park. The deceased was seated in his vehicle when the offender alighted from his vehicle and started walking in the direction of the deceased. The deceased in turn left his vehicle and walked towards the offender. The two men came together somewhere between the two vehicles. There was a short conversation between them before they each returned to their respective vehicles.

[5] The offender proceeded to drive his vehicle forward towards the Miller Road exit of the service station. At the same time the deceased reversed his vehicle out of its parked position and also drove towards the Miller Road exit. As the vehicles approached the exit they stopped, so that the vehicle driven by the offender was positioned adjacent to the passenger side of the deceased's vehicle. The offender alighted from his vehicle, walked to the passenger side of the deceased's vehicle, and produced a semi-automatic pistol. He then fired several shots from that pistol through the passenger side of the deceased's vehicle, hitting the deceased seven times, predominantly on the left hand side of his body. The deceased's vehicle then travelled from the service station on to Miller Road and across a median strip into a reserve where it collided with a tree. The offender got back into his vehicle, turned right into Miller Road and drove away. The deceased died at the scene as a result of the bullet wounds that he received. Ballistics evidence established that the weapon that killed the deceased had been fired a total of 12 times.

Additional background

[6] The Fahda family is associated with the Razzak family. Between 2001 and 2004 a number of murders and shootings took place involving members of the Razzak, Fahda and Darwiche families. As a result of this conflict, a number of members of these families are either dead or in gaol. On 30 October 2003, Ahmed Fahda, the brother of the offender, was shot and killed by two gunmen at a service station in Punchbowl. Adnan Darwiche, the brother of the deceased, was charged with soliciting to murder in relation to that killing.

[7] Two other people were charged in relation to that murder. Adnan Darwiche was subsequently acquitted but is otherwise serving life sentences in relation to shootings and murders associated with this conflict.

The interrelationship between the grounds of appeal

The first three grounds of appeal concern what are said to be errors in the assessment of the facts material to the application of a number of sentencing principles raised by the evidence led at trial and on sentence, including the evidence relevant to the assessment of the objective seriousness of the offence (Ground 1); the respondent's prospects of rehabilitation (Ground 2); and the extent of his intellectual impairment or disadvantage (Ground 3). Ground 4 concerns what is said to be a discrete error of law in his Honour's approach to the respondent's mental illness, while Ground 5 contends that for a murder of the objective gravity of this offence, accompanied with what the Crown submitted were features of aggravation, the sentence imposed was manifestly inadequate.

Although each of the grounds of appeal were addressed separately in the Crown's written submissions, at the hearing of the appeal it became apparent that there was some overlap in the evidence relevant to whether there was error in his Honour's assessment of objective seriousness (Ground 1) and in his Honour's approach to that evidence on the question whether the Crown had made good its challenge to the inadequacy of the sentence (Ground 5).

In addition, while the Crown maintained the submission in support of Ground 3 that the expert evidence did not support a finding that the respondent was "severely intellectually disadvantaged" - a finding his Honour made when dealing with the respondent's subjective circumstances- she did not challenge his Honour's description of the respondent as a person of "limited intelligence" when considering the interrelationship between the respondent's psychiatric, psychological and intellectual disabilities or the extent to which they were causally connected with the commission of the offence, and of "low intelligence" on the question of remorse and special circumstances. The Crown's ultimate submission was that, irrespective of the way his Honour described the respondent's level of cognitive or intellectual functioning, undue weight was given to it as a factor contributing to his loss of self-control when he discharged the gun intending to kill the deceased. This, she submitted, when coupled with his Honour's failure to give appropriate weight to the fact that the murder was accompanied by an intention to kill, and by the undue weight given to the mitigating influence of what his Honour was satisfied was some provocative conduct on the part of the deceased, was productive of error in the objective seriousness of the offence being positioned in the mid range.

These evaluative errors were then said by the Crown to be compounded by a number of errors in his Honour's approach to the respondent's mental illness as comprehended by the fourth ground of appeal. These were particularised to include a failure to make a finding adverse to the respondent on the grounds of future dangerousness and wrongly concluding that that the respondent's psychiatric condition rendered issues of general deterrence and specific deterrence of no weight in the sentencing exercise. The Crown maintained the submission in support of Ground 2 that the finding that the respondent had "good prosects of rehabilitation" was not open on the evidence, and that the weight given to that factor in mitigation of sentence also contributed to the imposition of an inadequate sentence.

The issues at trial

At his trial the respondent gave evidence that he shot (and killed) the deceased but that he should be acquitted of murder on the ground of self-defence. In the alternative, it was submitted on his behalf that should the jury regard his defensive response in shooting the deceased as excessive, he should be convicted of manslaughter. Further, in the alternative, the partial defences of provocation under s 23 of the Crimes Act 1900 and substantial impairment under s 23A of the Crimes Act were relied upon to reduce his liability for the killing from murder to manslaughter.

The evidence relevant to self-defence and provocation were the only matters in dispute at trial. By contrast, the evidence relevant to the respondent's psychiatric profile and mental functioning at the time of the murder was not in dispute. Whether the respondent's mental condition impaired him to such a degree as would justify his liability being reduced from murder to manslaughter was, however, the subject of considerable argument in counsels' closing submissions at trial.

Dr Greenberg gave evidence for the Crown and Dr Nielssen for the defence. On sentence the Crown also relied upon a supplementary report from Dr Greenberg limited to the question of the respondent's likely response to treatment as bearing upon the assessment of future dangerousness. The defence relied upon reports by two clinical psychologists directed principally to his intellectual capacity and functioning.

The evidence of the forensic psychiatrists supported a range of diagnoses including post-traumatic stress disorder associated with hyper vigilance, paranoia, auditory hallucinations, depression and an inverted sleep pattern with a probable underlying psychosis.

By its verdict the jury must be taken to have been satisfied that the Crown had discharged the onus of negativing that the respondent shot the deceased in self-defence and/or under provocation. They must also have concluded that he failed to discharge the onus of establishing, on the balance of probabilities, either that his capacity to judge whether his actions were right or wrong or to control himself was substantially impaired (as provided for in s 23A(1)(a) of the Crimes Act) or they were not satisfied that such impairment as was revealed by the evidence warranted his liability for murder being reduced to manslaughter under the second limb of the statutory test in s 23A(1)(b). His Honour found the latter more probable given the uncontradicted medical evidence.

It was submitted on behalf of the respondent, and accepted as a correct statement of principle by the sentencing judge, that the evidence led in proof of the defences at trial, including the respondent's evidence on the question of self-defence and provocation and the expert medical evidence relevant to the partial defence of substantial impairment, continued to have relevance for sentencing purposes. The Crown did not submit otherwise either on sentence or on appeal.

The challenge mounted by the Crown on the appeal was to the weight his Honour apparently afforded his findings on the issue of provocation and substantial impairment when assessing both the objective seriousness of the murder and, ultimately, in the sentence imposed.

The respondent's subjective circumstances

When considering the respondent's subjective circumstances his Honour noted the connection between the issue of provocation and the respondent's psychiatric profile, including his level of intellectual functioning.

His Honour made the following findings as to the respondent's subjective circumstances (only one of which was challenged by the Crown), namely the finding in [16] below that the respondent was "severely intellectually disadvantaged":

[8] I find the following facts to have been established on the balance of probabilities. The offender was born in April 1987 and so was 21 at the time of the events that give rise to these proceedings. He was 24 at the time of the trial. He is the fifth of six children, of whom four are still alive. He has a half-brother from his father's subsequent relationship. His parents are of Sunni Muslim heritage from North Lebanon and came to Australia when he was very young. He had no memory of living in Lebanon.

[9] There is a family history of mental illness. One of the offender's brothers had been admitted to hospital for treatment for schizophrenia. His sister had been diagnosed with paranoid schizophrenia. His father also had some unspecified psychiatric problems. The offender's own early development would appear to have been normal until shortly before he came into contact with a mental health service following an incident in which his father stabbed his mother in the family home. He was about eight at the time. His father was sentenced to imprisonment for a number of years. The offender had an understandable emotional reaction to all of this. He was subsequently teased about it at school, which led to anger management problems. This in turn led to continuing trouble at school and his regular school attendance was interrupted. He saw a psychiatrist on several occasions during 1998 and 1999.

[10] While his mother was recovering, the offender went to live with his older brother. He remains angry at the way he was treated while in his brother's care. During this period he was beaten and witnessed significant violent events both inside and outside the home. The offender attended Birrong, Lakemba and Granville Primary Schools and was sexually abused by a school principal when he was about 10. In approximately August 1998 the school counsellor at Birrong Primary School recorded the following entry in a file maintained with respect to the offender:

"Would you please forward this file to counsellor at Granville P.S. It has been requested because Mohammed is not functioning well in the classroom and has significant anger outbursts. I have spoken to the school counsellor about Mohammed's emotional difficulties coping with his father being in gaol. Mohammed expresses a lot of frustration because he is not supposed to talk about the family situation and still misses his father."

The offender was aged only eleven years at the date of this entry.

[11] He completed Year 7 at Birrong Boys' High School and later attended Punchbowl Boys' High School from which he was expelled at the age of 14. When he was in Year 8 he went to live with his father following his father's release from prison but he did not get on with him. He was living with his father in 2003 when his brother was murdered. After his brother died he was prescribed antipsychotic medication by a psychiatrist from the local mental health service. He had begun to hear voices and see things at this time. He did not leave the house for two years and developed a severe depressive illness. Pre-existing auditory hallucinations worsened. Moreover, he developed frank paranoid ideation, which was an extension of a traumatic stress reaction in the context of a strong biological propensity towards psychosis given the family history of schizophrenia.

[12] Following his brother's death, the offender took it upon himself to protect the family. He moved back to his mother's house approximately one month later. He stayed awake at night and would only sleep when his mother and sisters had arisen. He made sure that all of the windows and doors were locked and he remained vigilant, watchful and wary. The offender was subject to ideas of reference, which was an extension of his paranoid illness. This worsened in adolescence and young adulthood.

[13] Following his brother's death the offender commenced abusing cocaine. This started at the age of 16 and continued until he came to prison. The offender spent eight months in gaol between December 2007 and July 2008 awaiting trial for assault but was ultimately acquitted. Whilst in custody at that time he was stabbed and seriously wounded. He spent time in hospital recovering from his wounds and a subsequent infection. Following this the offender suffered from increased paranoid ideation and made a direct connection between this incident and his brother's murder. The offender went back to live with his mother following his release. He received no appropriate mental health care.

[14] The offender began carrying a pistol with him at all times for his protection after his release. He has had an indifferent employment history and has effectively never worked in any form of regular or full-time employment. He is untrained and unskilled in any vocational setting.

[15] The offender is of below average intelligence. Psychological testing revealed him to have a verbal and performance intelligence in only the second percentile range. Overall intelligence was tested in the first percentile range. He was found to be easily distracted, consistent with paranoia. His alienation scores showed him to have an unsatisfactory emotional life, to be suspicious, sensitive and anxious, and to feel unaccepted and alienated with a denial of normal expression. His scores were associated with personality characteristics evidenced by unusual thoughts, periodic anxieties, and difficulties relating to others, as well as with feelings of isolation, estrangement and loneliness. These are in keeping with his personal history.

[16] The offender has been diagnosed with post-traumatic stress disorder and paranoid schizophrenia in the context of an extremely low intelligence. There is a family history of psychotic illness as well. His psychiatric illness is of long standing and predates the offence for which he is being sentenced. He has a very low emotional intelligence, is severely intellectually disadvantaged and lacks insight into his condition, which he has never learned effectively to manage.

Ground 1: His Honour erred in finding that the offence fell within the mid range of objective seriousness

The Crown submitted that despite the fact that the evidence supported a finding that the killing was spontaneous and unpremeditated, and that it occurred quickly in the context of a chance meeting at a location unconnected to either the respondent or the deceased, it remained a brutal and intentional killing of considerable objective gravity committed in circumstances of aggravation. This, it was submitted, necessitated positioning the offence well above the mid range of objective seriousness. (A submission advanced on sentence that a life sentence was warranted was not pressed.)

In concluding that the offence fell within the mid range of objective seriousness, his Honour relied upon the following factors:

(i) It was spontaneous and unplanned;

(ii) It was not associated with any gratuitous violence beyond that which was instrumental in causing the death of the deceased; and

(iii) The formation of the intention to kill was influenced by the provocative conduct of the deceased.

The Crown submitted that his Honour was led into error in his assessment of objective seriousness by an uncritical acceptance of a line of authority which was relied upon by defence counsel as exemplifying the proposition that offences without planning usually fall below the mid range. The cases are cited in his Honour's judgment at [45] as follows: R v Shepherd [2006] NSWSC 799 at [49] - [50], [61] and [65]; R v Saalfeld [2007] NSWSC 376 at [24]; and R v Cooper [2005] NSWSC 791 at [103].

The only reference his Honour made to these authorities in his sentencing remarks (and only then by a citation of them) was when summarising defence counsel's submission that far from the offence being a worst case example of murder, as submitted by the Crown, it was appropriately positioned below the mid range. The absence of premeditation or planning was identified by defence counsel as the first of three significant features of an offence below the mid range (the second and third features being a degree of provocation and the absence of gratuitous violence or cruelty). Although, as noted, his Honour ultimately found that these three features, in combination, operated to appoint the objective seriousness of the murder in the mid range, it is clear that he did not accede to defence counsel's submission that absence of premeditation placed the offending below the mid range, still less uncritically accept the authorities to which defence counsel referred and to which exception is taken.

I am not satisfied that his Honour was led into error in the way contended for by the Crown. For that reason I do not consider it is necessary to decide whether counsel's reliance on the authorities for the submission he advanced was wrong or overstated.

The Crown was also critical of what was said to be his Honour's misplaced reliance on the observations of Smart AJ in Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267 in appointing the offending in the mid range (also relied upon by defence counsel) where at [143] Smart AJ said:

An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness.

This was said by the Crown to be contrary to R v Nelson (Court of Criminal Appeal, 25 June 1996, unreported); R v Wilson [2005] NSWCCA 112; 153 A Crim R 257; R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at [16]-[17]; and Versluys v R [2008] NSWCCA 76 at [32], cases where this Court has held that an intention to kill and premeditation would be expected to place an offence above the mid range of objective seriousness.

Senior counsel for the respondent submitted, correctly in my view, that each of the cases relied on by the Crown is to the effect that absence of an intention to kill does not necessarily mean that the offence is less serious, and that none of them is authority for the proposition for which the Crown contends.

In Hillsley, where the Court referred to both Nelson and Wilson, the following was said:

[16] Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that "there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill"; see also R v Wilson [2005] NSWCCA [112].

The Court went on to hold that where death resulted from a premeditated vicious attack of extreme violence on the victim in his own home, the fact that finding that an intention to kill could not be established beyond reasonable doubt did not significantly mitigate the gravity of the offence.

In Versluys, McClellan CJ at CL (with whom Simpson and Price JJ agreed) rejected a submission that the sentencing judge failed to consider the significance of the fact that there was no intention to kill by observing as follows:

[32] In Apps v R [2006] NSWCCA 290 Simpson J (at [49]) stated that the state of mind in which an offence is committed is a relevant consideration to the assessment of the criminality in relation to the offence of murder. However, her Honour stressed that it is not the only circumstance relevant to that assessment. Although where there is an intention to kill the objective seriousness of the offence is likely to be greater, it does not follow that where the intention is confined to an intention to cause grievous bodily harm that the objective seriousness will fall below the mid range (see Apps per Hunt JA at [4]).

...

[34] It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of the particular offence falls below the mid range.

Since there was no suggestion of any premeditation in the murder of the deceased, the emphasis on the conjunction between an intent to kill and premeditation in the cases to which the Crown referred does not appear to me to be an issue of principle that falls to be resolved on the appeal.

The Crown's primary submission in support of the first ground of appeal was that the factual findings his Honour made favourable to the respondent in assessing mid range offending were given undue weight and those adverse to him not given any, or sufficient, weight such as to result in a sentencing error. Central amongst what were said to be the erroneously weighted considerations was his Honour's finding on the issue of provocation (the third factor identified by his Honour as supporting a finding of mid range objective seriousness) and the related issue of the impact of the respondent's intellectual disabilities on his loss of self-control.

Each of the defences raised at trial were considered for sentencing purposes but only the evidence relating to provocation and substantial impairment were said to be material. Although the respondent had given evidence that he shot the deceased because he thought he was going to be shot, his Honour was not persuaded that there was any element of self-defence involved in the shooting, there being no evidence that the deceased was armed with a firearm or that he presented any immediate threat of personal physical danger or harm to the respondent.

His Honour was satisfied that there was a degree of provocation in the encounter between the respondent and the deceased which amounted to provocation for the purposes of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 which, in combination with the mental health issues informing the respondent's perception that the deceased was preventing him from leaving the petrol station, was available to be taken into account in mitigation of the objective criminality of the offence.

His Honour referred extensively to the respondent's evidence at trial, together with the evidence of the officer in charge and Dr Nielssen:

[22] The evidence in my opinion supports a finding that something happened between the offender and the deceased that caused or provoked the offender to act as he did. It seems apparent that the offender did not take the gun and start shooting immediately upon seeing the deceased. There were two conversations before that occurred. In this respect I observe that the offender gave evidence that the deceased said words to him that contained or amounted to a threat. For example, the offender gave evidence as follows:

"Q. What did you do then?

A. He started to approach me and that's when I approached him.

Q. Do you know exactly where you met?

A. Halfway between, halfway between, like.

Q. What was said between you at that stage - withdraw that. First of all, did you know that that man was Abdul Darwiche?

A. No.

Q. Did he say something to you?

A. When he got there?

Q. Yeah.

A. He asked me, he asked me "is my name Mohammed Fahda?" I said "yes." I said to him "what's your name?" He said "I'm Abdul Darwiche."

Q. What did you do then?

A. I was in shock.

Q. What do you mean you were in shock?

A. You hear the name and you hear the description but you don't think it will actually happen, like. I never think, like, I would really bump into him.

Q. So what happened next?

A. He said a few things then he went back to his car, and that's when I went back to my car.

Q. What language was this conversation in?

A. Arabic.

Q. When you say "he said a few things" what did he say, can you remember?

A. He threatened my brother Hussein and me. And he said he's going to kill us the way he killed my brother Ahmed.

Q. Did he say that in Arabic?

A. Yes, in Arabic."

[23] The offender had earlier given a version of what occurred to Dr Greenberg and Dr Nielssen that included a claim that the deceased had threatened to kill him.

[24] There is also evidence of the relevant history between the Fahda and Darwiche families. This included the undisputed evidence of pre-existing animosity over many years, the murder of the offender's brother by men associated with the Darwiche family and evidence of the deceased's reputation for violence, and his propensity to carry firearms and shoot people in public places that was known to the police and the wider community. This was apparent from the evidence given by Det Oxford in cross-examination as follows:

"Q. Mr Oxford, is it fair to say that the deceased in the case that the jury is dealing with, the man Abdul Darwiche, was suspected by police to have been involved in a large number of shooting incidents?

A. Yes, certainly he was charged with two shootings.

Q. In that context, did he, that is the deceased, Abdul Darwiche, have a reputation for violence?

A. Yes.

Q. That was a reputation known to the police?

A. Yes.

Q. It was also a reputation known within the wider community?

A. Yes.

Q. And particularly the Lebanese, middle eastern community?

A. Middle eastern community, yes.

*****

Q. That computer contains information including warnings to help police in doing their job?

A. Yes.

Q. It includes warnings about when people are considered to be dangerous if approached?

A. Yes.

Q. Abdul Darwiche, the deceased in this case, was a person for whom such a warning would be given to any police officer approaching him, is that correct?

A. Yes.

Q. The warning is a little more specific in that it will also warn the officers if the person may be expected to be carrying a gun?

A. Yes.

Q. In relation to the deceased, Abdul Darwiche, the computer certainly would have warned any officer approaching him that he may well be carrying a gun?

A. Yes, it did.

Q. I think you are in charge of a number of investigations into shootings by members of the Darwiche family and associates of theirs?

A. Yes, and other families.

Q. The family of Razzak was a family known to have an ongoing dispute with the Darwiche family, correct?

A. Yes, that's correct.

Q. And the Fahda family was associated with the Razzak family?

A. Yes.

Q. The Darwiche family were known to possess firearms?

A. Yes.

Q. That includes Abdul Darwiche?

A. Yes."

[25] The medical evidence also established that the offender had psychiatric complaints that affected his ability to control himself. Dr Nielssen gave this evidence on that issue:

"Q. Did you come to the conclusion that Mr Fahda's abnormal state of mind affected his perception of events?

A. Yes, I did.

Q. And that it seemed that he interpreted a chance meeting with Mr Darwiche, and comments made by Mr Darwiche and his hurrying back to the car and then perceiving him to block his exit, as being dangerous to him?

A. Yes. He's got an altered perception of events because he has a heightened perception of threat and sees more danger in commonplace events than another person might.

Q. ... Did you form the opinion that those things affected his capacity to understand events?

A. Yes. In the same way as I described a moment ago, in the heightened perception of threat.

Q. I think you agree with Dr Greenberg that those conditions may have or did affect his ability to control himself?

A. Yes. In the sense that if you're in that acutely fearful state your tendency to act on impulse or without thinking is greater than a person who wasn't affected in that way."

[26] In my opinion it is apparent, and I find, that there was evidence to support a conclusion that there was a degree of provocation, falling short of the partial defence of provocation at law, which directly affects and mitigates an assessment of the objective seriousness of the crime.

At the hearing of the appeal the Crown conceded that despite the evidence of other witnesses to the shooting which contradicted the respondent's account, it was open to his Honour to find, on the probabilities, that there was some provocative conduct of the deceased in his encounter with the respondent. His Honour expressed that finding in the following way:

[62] I find that there was an element of provocation. People associated with the deceased had murdered the offender's brother. The deceased spoke to the offender at the scene immediately before he was killed and threatened him in direct and forceful terms. I find that these factors influenced the offender in the formation of his intention to kill the deceased and caused him to suffer a significant loss of his self-control.

His Honour did not expressly consider how a finding that the deceased's conduct caused the respondent to suffer a significant loss of self control, influencing his intention to kill, was consistent with the jury having rejected the partial defence of provocation. He must, however, have been satisfied that the jury accepted that the evidence left open the reasonable possibility that the respondent lost self control by reason of the deceased's conduct, and formed an intention to kill (the first limb of the provocation defence in s 23(2) of the Crimes Act) but were satisfied that the conduct of the deceased in threatening to kill the respondent and his brother was not such as would have caused an ordinary person (in the respondent's position) to have so far lost self control as to have formed the intention to kill (the second limb).

In the same extract his Honour appeared, on one reading, to take into account that people associated with the deceased had murdered the respondent's brother as part of the circumstances amounting to provocation. Section 21A(2)(c) provides that provocation, as a mitigating factor for sentencing purposes, is limited to where the offender was provoked by the victim. If, however, the reference to the murder of the respondent's brother was intended by his Honour as supplying context to the respondent's state of mind when the deceased threatened to kill him and his brother - in the sense that it made his perception of the threat more real - then there is no error in the application of the section. The Crown did not submit there was error of that kind and, for my part, I find none.

Finally, the Crown did not submit that there was any error in his Honour having regard to the respondent's limited intelligence and his underlying mental health issues on the question of whether, and to what extent, the shooting was accompanied by a loss of self-control, or that in so doing his Honour's approach was contrary to Muldrock v R [2011] HCA 39; 244 CLR 120 where at [27] the Court emphasised the necessity for the objective seriousness of an offence to be determined without reference to the personal attributes of an offender but wholly by reference to the nature of the offending. Rather, the Crown submitted that such provocation as the respondent was confronted with in his encounter with the deceased was of such little weight in evaluating the objective seriousness of an intentional killing of an unarmed man that a finding of mid range offending was not open and that this was so irrespective of the fact that the respondent's compromised intellectual capabilities contributed to a loss of self-control.

As to the interrelationship between the provocative conduct of the deceased and the respondent's intellectual capabilities, his Honour said at [68]:

...It is highly likely that the offender's responses to the actual threats that were made to him by the deceased, and the threats that he perceived were being made, such as that the deceased was blocking his exit from the car park, resulted in responses from him that might have been different in a mentally healthy and more intelligent person. I find that what the deceased said to the offender had an impact on his self-control and that there was a considerable loss of self-control when this crime was committed...

Although these findings were made in the context of his Honour considering the relevance of the respondent's psychiatric, psychological and intellectual disabilities for the purpose of assessing the sentence to be ultimately imposed, it is clear from his Honour's approach to the question of assessment of objective seriousness of the offence that he treated the respondent's limited intelligence and his underlying mental condition as a factor which contributed to the way he reacted to the deceased's provocative conduct.

The Crown also relied upon the respondent's use of a semi-automatic pistol in an area frequented by the public and that the fatal shooting occurred in the presence of the deceased's wife, children and other family members as aggravating the objective seriousness of the murder and of considerable countervailing weight to those factors which operated in mitigation of it, including the issue of provocation.

His Honour made express reference to the emphasis the Crown placed upon the respondent's use of a handgun, and the Crown's submission that the possession and use of handguns should not be tolerated, as features of the offence which should be given weight in the assessment of objective seriousness. As to the respondent's use of a handgun, his Honour said:

...I accept that the fact that the offender had for some years customarily armed himself with the very pistol that caused the death is a factor about which the courts should speak in unambiguous denunciation and to which regard must be had in sentencing this offender. By the same token, that weapon had not previously been used to cause death or commit a crime, but was carried as a function of the offender's response to his paranoid and hyper-vigilant perception of threat.

Consistent with his finding that the shooting was spontaneous and impulsive (which was not challenged by the Crown on the appeal) and in light of the medical evidence where the respondent's paranoia and hyper-vigilance were identified as features of his psychiatric profile (and that his being armed on the day of the murder was explained by that fact), in my view, it was open to his Honour to ameliorate the weight of the respondent's use of a handgun as an aggravating factor.

As to the other features of aggravation relied upon by the Crown his Honour found as follows:

[65] I acknowledge that the offence took place in public and in the presence of the deceased's family and that the death was the result of an aggressive and violent act. However, the whole incident unfolded and concluded in a very short space of time. It is conspicuously adorned with limited informative contemporaneous, as opposed to historical, detail.

In light of these findings, the Crown's submission that his Honour made no reference to the fact that the shooting occurred in a public place (other than to note the Crown's submission that the case involved a cold-blooded execution in a public place) must be rejected. The Crown's further submission that his Honour dealt with the fact that the shooting occurred in the presence of the deceased's family solely by reference to defence counsel's submission that this was ameliorated because it was "a spontaneous response to a chance meeting" and that "the offender denied in cross-examination that he saw the children" is also unsupportable given the same extract.

In his sentencing remarks his Honour made particular mention of the Crown's description of the killing as a "cold-blooded execution", and other epithets used variously by the Crown to describe the killing including "atrocious", "detestable", "hateful", "odious", "gravely reprehensible" and "extremely wicked", as unhelpful. In that regard his Honour said at [64]:

...There can be no doubt that any death of an unsuspecting and innocent person will necessarily invite descriptions that reflect very critically and pejoratively upon the perpetrator, but all of the circumstances of the case need to be considered.

The Crown's oral and written submission on the appeal that but for the respondent's subjective circumstances, the killing would have been "a cold-blooded execution in a public place using a semi-automatic gun" was also unhelpful and, in light of his Honour's remarks, should not have been repeated, if for no other reason than the term "execution" is suggestive of pre-planning and deliberation and, as the Crown conceded, in this case there was no evidence of either.

At the hearing of the appeal the Crown acknowledged the broad discretion afforded a sentencing judge in finding the facts and drawing inferences from those facts as part of the evaluative task of characterising the objective seriousness of an offence as classically within the role of the sentencing judge and with which this Court rarely interferes in the absence of a finding of error. As this Court has said, and repeatedly, where there is a challenge to a sentencing judge's characterisation of objective seriousness, the question is whether the finding was open, which is to be resolved without any different view of the facts members of the reviewing Court might hold intruding into that consideration.

In R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51] Bathurst CJ referred to the frequently cited statement of principle by Spigelman CJ in Mulato v R [2006] NSWCCA 282 where his Honour said:

...In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [37]):

"Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour."

His Honour also referred to the views of Simpson J in Mulato where the strict limits within which appellate review of a finding of objective seriousness is undertaken was emphasised (a view with which Adams J agreed at [70]). At [46] of Mulato Simpson J said:

The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

In R v KB Bathurst CJ regarded her Honour's views as particularly apposite in the case of an offence which can occur in a wide variety of different circumstances. While the Court in R v KB was concerned with the offence of aggravated break, enter and steal, the circumstances in which a murder is committed are also notoriously diverse. Bathurst CJ went on to say in [53]:

...That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.

The Crown maintained the submission that in the circumstances of this case the finding of mid range offending was an error warranting intervention, predominantly, although not exclusively, because his Honour's findings on the issue of provocation and the impact of the respondent's intellectual functioning on his response to the deceased's conduct, and the weight he afforded these factors in mitigation of the objective seriousness of the offending, were not open.

Although, as Simpson J observed in Mulato, the principle cautioning against interference with a sentencing judge's assessment of objective seriousness is not because it is determined by reference to the credibility of witnesses, in Koloamatangi [2011] NSWCCA 288 Basten JA at [51] expressed the view that the reluctance to interfere with a sentencing judge's assessment of objective seriousness may be accentuated where the sentencing judge has had a more extensive opportunity to assess the circumstances bearing upon the seriousness of the offence after trial than where sentence follows a plea of guilty. Such was the case here. In my view, the Crown's challenge to his Honour's findings on the degree of provocation and the impact of the respondent's mental health and functioning, and the weight he apparently afforded these factors, failed to account for the advantage his Honour had in assessing the witnesses who gave evidence at the trial, including the respondent.

In the result, I am unable to conclude that his Honour's findings of fact bearing on the assessment of objective seriousness and his ultimate finding that the offending was in the mid range were not open to him. In particular, I am unable to conclude that his Honour has overstated the degree of provocation the respondent was confronted with or the extent to which it operated in mitigation of the objective seriousness of the offence. His findings on that issue were open on the evidence and matters to which he was entitled to afford significant weight in his assessment of objective seriousness. I am not unmindful of the fact that in shooting the deceased the respondent intended to kill him or of the interplay of aggravating factors relied upon by the Crown, including unlawful possession of the handgun, the ferocity attending its use when twelve shots were fired in quick succession at the deceased in his car and that the shooting occurred in a public place in the presence of members of the deceased's immediate family. I would venture the view that absent the provocative conduct of the deceased, which in this case was considerable, together with the fact that it was unaccompanied by any pre-planning and unassociated with any gratuitous violence, the objective seriousness of the offence would be above the mid range.

Because of the way the Crown framed its submissions, that effectively disposes of the first ground of appeal. Although it was submitted that his Honour's approach to the issue of mental illness disclosed error which infected the sentence ultimately imposed (as contended for in Ground 4), the Crown did not advance the submission that his Honour was not entitled to attribute weight to the respondent's underlying mental condition in assessing objective seriousness, or that in combination with other factors it was not capable of moderating the objective seriousness of what was otherwise described by his Honour as a brutal and violent killing.

Ground 2: His Honour erred in finding that:

(a) "the offender is a good candidate for rehabilitation and has good prospects of not reoffending" and

(b) "there are no apparent countervailing factors that suggest that reoffending is likely"

His Honour made the following finding at [67]:

With the exception of a conviction for assault occasioning actual bodily harm in 2007, for which the offender was placed on a s 9 bond, his criminal record is limited to motor vehicle offences and offences committed as a juvenile. No offences involving the use of weapons, and in particular no offences involving the use of firearms, are recorded. These are matters that give me confidence that the offender is a good candidate for rehabilitation and has good prospects of not reoffending. I acknowledge that from a medical point of view the predictions that can be made about the offender in these respects are necessarily speculative and imprecise. On the other hand, there are no apparent countervailing factors that suggest that reoffending is likely, far less certain, or that the offender will prove to be resistant to positive influences toward rehabilitation. I am unable to conclude that the offender is likely to be a danger to the public upon his release. (emphasis added)

Particular exception was taken to the finding (given emphasis in the extract above) because of what was said to be his Honour's failure to take into consideration on the question of rehabilitation the fact that the respondent had, on his own admission, habitually carried an unregistered, unlicensed, loaded semi-automatic pistol for some years prior to the shooting, conduct which by definition breached various provisions of the Firearms Act 1996. When reviewing the respondent's subjective circumstances and when considering the use of the gun as an aggravating factor in the assessment of objective seriousness, his Honour made express reference to the fact that the respondent had carried the pistol that killed the deceased for some years prior to the shooting. However he regarded that behaviour as a feature of the respondent's mental illness as distinct from it demonstrating a predisposition to violence or disregard of the law. Similarly, what his Honour apparently regarded as important on the question of rehabilitation was not the respondent's past possession of an unlicensed and unregistered pistol but, as confirmed by his criminal record, that he had never used it (or any weapon) to commit any offence. The fact that his Honour made no reference to the criminal offence of possession of the pistol does not, in my view, of itself undermine in any material way the favourable finding on the issue of rehabilitation.

The Crown also pointed to the respondent's custodial history where "Intimidation" and "Damage, Destroy Property" charged as prison regulatory offences after his remand in March 2009 as disentitling him to a finding that his prospects of not reoffending were good. Accepting that offences of violence committed whilst in prison may reveal an offender's attitude to be inconsistent with rehabilitation (as to which see for example Devaney v R [2012] NSWCCA 285 per Campbell JA at [163]), it does not appear from the Crown's submissions on sentence that his Honour was invited to take into account the offences committed in prison as bearing upon the respondent's attitude to violence or any risk of future dangerousness. I note that save for Professor Greenberg having noted as one of the static risk factors utilised for the purpose of predicting future violent offending under the heading of "Prior Supervision Failure", that "it is also reported that whilst in custody [the respondent] has been involved in various misdemeanours", there is no reference in the evidence to the context in which the regulatory offences were committed.

Given the range of matters his Honour was required to take into account on the issue of rehabilitation it is, perhaps, unsurprising that he made no reference to the prison offences. I am not persuaded, however, that his failure to refer to them constituted error or, to the extent that they were of some relevance to the question of rehabilitation, that the offences were of such seriousness over a lengthy remand as to overwhelm the combined weight of those factors which his Honour did take into account in the respondent's favour on the question. Although, as I have noted, there is nothing in the evidence that provides any context for either offence, the fact that they were committed over the course of a remand of three years, with the first of the two committed almost 18 months after he was taken into custody and the second 12 months later, operates to diminish their significance for sentencing purposes.

More critically, the Crown submitted that his Honour's findings as to the respondent's favourable prospects of rehabilitation were not supported by the views of Professor Greenberg and Dr Nielssen and that a more guarded finding was the most favourable available on the evidence.

In support of that submission, the Crown placed particular reliance upon the supplementary report of Professor Greenberg dated 1 November 2011. That report was obtained by the Crown after trial for the express purpose of addressing the likelihood of the respondent accepting and complying with treatment for his mental illness, and whether this would impact on the risk of him being violent in the future. The report would appear to have been sought with a view to it supporting the Crown submission that the imposition of a life sentence was warranted. Professor Greenberg's conclusions and Dr Nielssen's report of 29 November 2011 which commented upon them were, however, also relevant to the question of rehabilitation and, although his Honour did not refer to either of them in express terms, it is clear from his sentencing remarks that he considered them in this way.

For the purposes of his supplementary report, Professor Greenberg reviewed his clinical assessments of the respondent incorporated into his earlier reports for diagnostic purposes and on the issue of substantial impairment, the expert medical reports obtained by the defence directed to the same issue and the respondent's evidence at trial. He did not however undertake a structured Clinical Risk Assessment of the respondent for sentencing purposes.

Professor Greenberg identified the respondent's static risk factors which, as he noted, are considered in the literature to have the strongest predictive accuracy. They included a prior history of violence dating back to early childhood (including his suspension from school due to aggressive behaviour, stand over tactics and physical assaults, and on one occasion the use of a knife to threaten); his criminal record, including the murder of the deceased; his substance abuse, particularly in relation to the use of cocaine; and a diagnosis of a major psychiatric disorder and limited intellectual functioning. Professor Greenberg then considered the respondent's dynamic risk factors and management factors noting that, by definition, they fluctuate and change over time and may be amenable to treatment and intervention. These included what he regarded as the respondent's poor insight into his ongoing psychiatric and psychological problems, in part due to his low intellectual functioning; a history of non-compliance with remediation attempts and a lack of responsiveness to treatment, in part because of what was said to be his refusal to cooperate with mental health services in the community and in the custodial setting.

With the caveat that because of the number of factors that come into play in any given case prediction of the future risk of violent offending is imprecise, Professor Greenberg considered that the respondent posed a moderate to high risk of future violent offending. He reported that there was a potential for that risk to decrease over an extended period of time assuming the respondent was motivated and willing to engage in psychiatric and psychological treatment and to actively participate in a management program.

In his report of 29 November 2011 Dr Nielssen acknowledged that he had read Professor Greenberg's report of 1 November 2011. In the Crown's submissions on the appeal the following passages from the report were relied upon as reflecting Dr Nielssen's views concerning the potential for the respondent to reoffend which the Crown submitted were generally supportive of the proposition that only a guarded finding favourable to the respondent was open:

I concur with the general methodology of Professor Greenberg in considering aspects of Mr Fahda's past behaviour, his circumstances and his mental state in attempting to estimate Mr Fahda's potential for further violent offences. However, predictions based on these factors mainly relate to his current condition and cannot take into account his state of mind or circumstances some time into the future.

...

...The history of repeated psychological trauma and past abuse is likely to increase Mr Fahda's potential to react in a violent way unless he receives appropriate treatment and rehabilitation.

I concur with Professor Greenberg's observations about the potential effect of a resumption of substance use after release, which would .be likely to have the effect of triggering an exacerbation of persecutory beliefs and anxiety symptoms, and lead to his association with criminals and to his participation in illegal activity... by the time of his release, Mr Fahda is likely to have been largely abstinent from drugs for some years...

There is conflicting evidence about the effect of psychotic illness on the probability of violence, in part because of the failure of many studies to distinguish between minor and serious forms of violence. Some studies show mental illness to be a protective factor, because most violence takes place before initial effective treatment, psychosis is amenable to treatment and because the emergence of negative symptoms of chronic psychotic illness over time is associated with a reduced propensity to violence. Mr Fahda requires adequate treatment for his underlying psychotic illness, and adequate treatment will reduce the probability of further violence.

...

I concur with the conclusion of Professor Greenberg that Mr Fahda would be likely to derive considerable benefit from psychiatric treatment, which in my opinion should include detention in a location in which he feels safe, where there is ready access to mental health care and with the minimum number of transfers. I would recommend further psychiatric assessment and treatment with appropriate psychotropic medication to control symptoms of psychosis and ameliorate anxiety symptoms, together with individual counselling. He may derive some benefit from participation in therapeutic programs offered by the Department of Corrective Services, for example, the violent offenders program. It would also be hoped that in due course Mr Fahda would become eligible for transfer to lower security prisons where he could participate in work and educational programs, and not be detained in maximum security until close to the time he is eligible for release, as has happened to some other prisoners in similar circumstances.

Significantly, as I see it, the Crown did not extract Dr Nielssen's views as to whether the respondent would likely be responsive to treatment directed to reducing the risk of further violence, or the matters Professor Greenberg relied upon as contributing to a risk of future violence. As to those matters Dr Nielssen said this:

Mr Fahda's attitudes towards authority figures and justice officials have also been shaped by his experiences. The history is that he has very limited experience of counselling or psychiatric care, and has had little attention from mental health services in custody. Hence it is not possible to say whether he is in fact unresponsive to treatment.

The dynamic, or current risk factors are not especially relevant as they relate to Mr Fahda's current circumstances, and are unlikely to reflect his circumstances as he approaches release.

...

In summary, Mr Fahda has a combination of severe early life trauma and major mental illness that were major contributing factors to his offence and for which he will require intensive rehabilitation and ongoing support and treatment after his eventual release. I agree with Professor Greenberg that "prediction of the future is an imprecise prediction" because of the specific circumstances of Mr Fahda's offence and our inability to predict the course of his illness, how he will respond to treatment, or the circumstances he will face when he becomes eligible for release.

Even affording full weight to the moderating views of Dr Nielssen, the Crown's submission that the opinions expressed by the experts rendered a positive finding that the respondent had good prospects of rehabilitation unavailable does have some force. That said, and while it is clear that in expressing a measure of confidence in the respondent's prospects of rehabilitation his Honour did not refer to the factors identified by Professor Greenberg as contributing to a risk of reoffending, or that in his view the risk was moderate to high, his Honour did acknowledge what both experts were concerned to emphasise, namely that the risk of future offending is speculative and imprecise. He went on to say:

...On the other hand, there are no apparent countervailing factors that suggest that reoffending is likely, far less certain, or that the offender will prove to be resistant to positive influences towards rehabilitation. I am unable to conclude that the offender is likely to be a danger to the public upon his release.

Where a lengthy sentence of mandatory custody is to be imposed (as was the case here) it has long been recognised by the courts that any assessment concerning the risk of future dangerousness, although relevant, is necessarily speculative (see Bugmy v R [1990] HCA 18; 169 CLR 525). That said, as Gleeson CJ observed in Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575, despite the potential unreliability inherent in a prediction of future dangerousness, such predictions may also be accurate and, as Johnson J recognised in Beldon v R [2012] NSWCCA 194at [56], it remains part of the responsibility of a sentencing judge to have regard to it despite the significant element of imprecision inherent in the exercise. In some cases the circumstances in which the offence was committed suggest the possibility of a high likelihood of future dangerousness and future violent offending (see Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at [59]-[73]). This case was not however in that category and I do not understand the Crown to have so submitted.

Although his Honour made no reference to the length of the non-parole period in the context of the respondent's relative youth as bearing upon his conclusion that a forecast of future dangerousness could not be made, those two factors in combination well supported what is implicit in his Honour's finding, namely that any prediction as to the future behaviour of the respondent was speculative and that a finding that there was a risk of reoffending could not be safely made. Significantly, the respondent was 24 at the date of sentence and will be 38 before his eligibility for release to parole falls to be considered. As I see it, in a practical sense the risk of his reoffending and an assessment of his dangerousness is a matter for assessment at that time by the New South Wales Probation and Parole Service in discharge of its statutory functions.

Of course his Honour was not limited to the evidence of the forensic psychiatrists when considering whether or not the respondent was a good candidate for rehabilitation, or whether or not there were countervailing factors suggesting that he was likely to reoffend.

In that regard, his Honour made express reference to the relative youth of the respondent at the time of the offence as bearing significantly on the question of rehabilitation. He said as follows:

...[His relative youth] does not represent a factor that operates of itself to ameliorate the extent of the offender's criminality but is relevant to the question of his prospects for rehabilitation and, by necessary inference, to the likelihood of reoffending. It should also be considered in the context of his insignificant criminal record.

As his counsel emphasised on appeal, as a relatively young offender (aged 24 at the time of sentence) his Honour was entitled to regard the respondent's record as relatively minor and, in one sense, the more so in circumstances where, by contrast, his family history was marked with extreme violence to which he had been exposed.

I am satisfied his Honour's assessment of the respondent's prospects of rehabilitation over the course of his sentence, while optimistic, was a view open to him. He was entitled to take into account all the evidence, including the respondent's evidence, his criminal antecedents in the context of his relative youth, and the references from close family members tendered on sentence which attested to his developing insights and the ongoing love and support of his mother and sisters.

Ground 3: His Honour erred in finding that the respondent was "severely intellectually disadvantaged"

Reference has already been made to the various ways in which his Honour considered that the respondent's level of intellectual functioning operated in mitigation of sentence, and the Crown's concession on the appeal that despite pressing for a finding of error in his Honour's description of the respondent as "severely intellectually disadvantaged", the medical evidence nevertheless generally supported a finding that the respondent was of "limited" or "low" intelligence.

In his report of 7 March 2011, Mr Borenstein, a clinical psychologist whose report was tendered on behalf of the defence without objection, reported upon the results of psychometric testing of the respondent as follows:

On the short version of the WAIS-III, Mr Fahda's verbal and performance intelligence was tested as falling in the 2nd percentile range, and extremely low. Overall intelligence tested in the 1st percentile range.

Verbal comprehension was marginally improved and tested in the 3rd percentile range, considered to be extremely low, as was perceptual organisation (2nd percentile range), and working memory index (1st percentile range).

...

Mr Fahda is a man of extremely low intelligence. Mr Fahda's reading age is no better than 10 years 8 months. His intelligence is no better than the 2nd percentile, compared to aged peers, ie 98% of Mr Fahda's aged peers perform at a higher intellectual level than he, which places him at significant disadvantage intellectually. Mr Fahda has a very low emotional intelligence. He lacks insight with regards the nature of his illness, and has never effectively learned to manage same.

Mr Fahda's mental capacity is extremely limited, confirmed by way of psychometric analysis...

Although the Crown did not refer, in terms, to these results in her written submissions, she did note that Professor Greenberg stated in his report of 23 August 2011 that:

Mr Fahda was tested for intelligence using the WISC scale in 1996 [that is, when he was 9 years old] and found to be of low average intelligence.

...

Intellectually Mr Fahda has previously been formally tested by the Department of Education and found to be functioning in the low average or borderline intellectual range. I note that Mr Borenstein also tested his intellectual functioning and reported that he functioned in the "extremely low range". In my opinion Mr Fahda does not have an intellectual disability (mental retardation).

I am satisfied that the medical evidence provided ample support for a finding that the respondent was intellectually compromised, and to some considerable degree. I do not understand his Honour's description of the respondent as "severely intellectually disadvantaged" as interchangeable with, or intended to signify that he has an intellectual disability that equates with, or is even likened to, mental retardation.

I would reject this ground of appeal.

Ground 4: His Honour erred in his approach to the respondent's mental illness

On the appeal the Crown accepted that a finding that the respondent was mentally ill at the time of the commission of the offence (a condition which his Honour noted was well documented and of long-standing) and that his condition materially contributed to the commission of the offence was open on the evidence. The Crown submitted, however, that his Honour's approach to sentencing in these circumstances was contrary to the principled approach mandated by the authorities.

The first error is said to result from the fact that in referring to R v Hemsley [2004] NSWCCA 228 at [33]-[35] per Sperling J, his Honour made reference to only three of the four principles which are identified as having a material bearing on sentencing a mentally ill offender.

The Crown accepted that his Honour correctly recognised that where there is a material connection between the commission of the offence and the mental illness (as was the case here), the moral culpability of the offender may be reduced and, for that reason, there may not be the same call for denunciation in the sentence that is imposed. The Crown also accepted that his Honour gave appropriate recognition to the fact that mental illness may render an offender an inappropriate vehicle for general deterrence and that a custodial sentence may weigh more heavily on a person who is mentally ill. However, the Crown submitted that his Honour was in error by not including any reference to the fourth, countervailing consideration, namely the level of danger the community may be exposed to where a violent crime has been committed by a mentally ill offender which may sound the need for the sentence to reflect special deterrence.

Were the Crown to have established that there was a real likelihood of the respondent reoffending upon his eventual release, thereby exposing the community to an unacceptable level of danger (R v Robinson [2002] NSWCCA 359 at [49]), and to the criminal standard (see Devaney per Allsop P at [168], Price J agreeing), as distinct from there being "some likelihood" of that occurring as submitted by the Crown on appeal, the fact that his Honour did not refer to it as necessitating some counterweight to the mitigating effect of the respondent's mental illness so as to reflect special deterrence may well have constituted error (see R v Windle [2012] NSWCCA 222 at [41]-[57] where Basten JA, with whom Price J agreed, reconsidered the weight that may properly be given to the protection of the community where an offender's mental illness causes an element of future dangerousness). However where, as here, the evidence was to the effect that any predictions of the respondent's future dangerousness were "speculative" and "imprecise" (as Professor Greenberg acknowledged in his report to which reference has already been made), and where his Honour was unable to otherwise conclude that the respondent was likely to be a danger to the community upon his release, he was not obliged to refer to the need for special deterrence and was not in error in failing to do so.

The second error was said to be the way his Honour treated the causal link between the respondent's mental illness and the fatal shooting. The Crown submitted that it appears from the sentencing remarks that, without further deliberation, his Honour concluded that because the causal link was forged neither general deterrence nor special deterrence carried any weight in the sentencing exercise and, in so doing, he acted contrary to established principle.

Were his Honour to have approached the issue in that way he would have been in error. In R v Engert (1995) 84 A Crim R 67 at 68 Gleeson CJ emphasised the need when sentencing a mentally ill offender for the facts of an individual case to attract a careful and considered discretionary judgment in light of the sometimes intricate interplay of the purposes of criminal punishment served by the sentencing exercise.

On a balanced reading of his Honour's remarks I am unable to identify the error of principle the Crown contends for. In my view, the following passage puts that beyond doubt:

[68] I am particularly mindful that the offender's psychiatric, psychological and intellectual disabilities are central to a proper assessment of the appropriate sentence to be imposed. I have no doubt that the offender's mental illness contributed to the commission of the offence in a material way, so that his moral culpability is correspondingly reduced. I consider that in this case the call for denunciation must be tempered and the punishment warranted should accordingly be reduced. I have in mind in this regard the findings of the medical experts who have examined the offender, which suggest that he suffered from a paranoid psychosis with symptoms including hyper-vigilance and auditory hallucinations superimposed upon a limited intelligence. It is highly likely that the offender's responses to the actual threats that were made to him by the deceased, and the threats that he perceived were being made, such as that the deceased was blocking his exit from the car park, resulted in responses from him that might have been different in a mentally healthy and more intelligent person. I find that what the deceased said to the offender had an impact on his self-control and that there was a considerable loss of self-control when this crime was committed. In making this finding I have had regard to the medical evidence, which I accept as to the offender's psychiatric disorders. Those disorders accounted in part for the impact on the offender's self-control.

He went on to say:

The crime in this case was particularly enigmatic and idiosyncratic. It cannot be viewed as one into the commission of which members of the public are likely regularly, or habitually, to descend. It is unrelated to a course of common criminal behaviour from which it unfolded all emerged. It was, on the contrary, spontaneous and impulsive.

With respect to the issues of general and specific deterrence his Honour said:

An offender with intellectual or mental health disabilities is not an appropriate medium for general deterrence: see R v George. Similarly questions of personal deterrence may have less significance because the interests of society do not require that persons with a relevant disability should be punished as severely as persons without a disability" R v Anderson (1980) 2 A Crim R 397 at 384-5).

In my view, his Honour's findings were not only well supported by the evidence but his analysis accorded with the "sensitive discretionary decision" Gleeson CJ emphasised in Engert is called for when a mentally ill offender comes into collision with the criminal justice system.

The importance of this approach and the difficult questions of judgment involved in the imposition of a sentence on a mentally ill offender for a violent crime was revisited in Devaney where, after referring to the purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act and the remarks of Gleeson CJ in Engert, Allsop P said:

[75] These considerations arise by reason of the need to resolve the just and proportionate response to the commission of a grave crime by someone suffering significant a psychiatric illness that is relevant, indeed central to the commission of the crime. Logic may dictate that such circumstances necessarily lead to significant leniency in sentence. That is not so...

He went on to say at [79]:

The judgment of the majority (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen (No 2), especially at 472-477, though dealing with manslaughter by reason of diminished responsibility, is of particular guiding assistance. The place of the protection of the public in the assessment of the just and proportionate sentence, as distinct from preventative detention derived from the need for such protection, and the difficulty in distinguishing the two is illuminatingly discussed. As the majority in Veen (No 2) said (at 476), sentencing is not an exercise in logic. A heavy sentence for someone whose moral responsibility for a crime has been lessened by mental impairment may be illogical. But the just proportionality of a sentence must be such as supports, and not undermines, public confidence in the processes of criminal justice and the law: cf Veen (No 2) at 477. Powerful considerations in any case in that regard are the institutional response to and punishment of life threatening violence inflicted in a terrifying attack, and the protection of the public. The difficulties involved were discussed by Basten JA in R v Windle [2012] NSWCCA 222 at [41]-[50].

In addition to his Honour's failure to refer to Engert (which the Crown submitted was the likely source of error in the way he treated the issue of general and special deterrence, about which I remain unpersuaded) the Crown submitted that R v George [2004] NSWCCA 247; 149 A Crim R 38 was not an unqualified authority for the proposition that a mentally ill offender is not an appropriate medium for general deterrence and that his Honour's reliance on George for that proposition was in error. In George at [36] the Court (Wood CJ at CL, Adams and Kirby JJ) said the reason that less weight is given to general deterrence in the case of an offender suffering from a mental disorder or abnormality:

lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice.

The Court went on to say:

[37] Where such a condition is present, it is recognised that the offender is not an appropriate medium by which to make an example to others.

[38] Similar considerations apply in relation to personal deterrence where the disability is such that the offender may not fully appreciate or understand the nature of his or her offending, or of the message which the sentence is expected to convey.

In short, the Crown's submission appeared to be that his Honour did not undertake an analysis of the respondent's appreciation of the wrongfulness of his act or of his moral culpability as mandated by the collected authorities referred to in George before concluding that he was "not a proper vehicle for pronouncements about general deterrence". I am not persuaded that his Honour's approach was contrary to principle or that there was any error in his reasoning or concluded views.

The third error in approach contended for by the Crown concerned his Honour's approach to a finding on the question of future dangerousness and the risk of offending on release. As discussed previously, I am of the opinion that his Honour's findings on that question were open on the evidence and no error in principle or in his approach to the issue has been demonstrated.

Ground 5: His Honour erred by failing to impose a sentence that reflected the objective gravity of the offence and the aggravating factors and was manifestly inadequate

Having failed to make good the challenge to his Honour's assessment of the objective seriousness of the offence as contended for in Ground 1, and having failed to establish any of the errors contended for in Grounds 2, 3 and 4, for this Court to regard the sentence as manifestly inadequate it must be demonstrably clear that it was so inadequate as to be unreasonable or manifestly unjust by reason of latent error.

As I understand the Crown's primary submission in support of this ground of appeal, a comparison of what are suggested as comparable sentencing decisions compels the conclusion that a sentence of imprisonment of 20 years with a non-parole period of 14 years resonated with latent error.

The Crown also submitted that his Honour failed to give sufficient weight to features of the offending bearing upon its objective seriousness and overweighted the respondent's subjective case which, in combination, contributed to the inadequacy of the sentence. Although, as Button J observed in Hanania v R [2012] NSWCCA 220, the weight given to particular circumstances in a sentencing exercise should be considered as a particular of manifest excess (or inadequacy), that is, in considering the sentencing outcome not its process, for the reasons advanced in rejecting the Crown's other grounds of appeal, I do not consider that the sentence imposed was manifestly inadequate by this approach.

The cases to which the Court was referred are those to which this Court was referred in Beldon. In that case counsel supplied a schedule of murder sentences (mostly at first instance) in seeking to overturn a sentence of 24 years with a non-parole period of 16 years as manifestly excessive. Reference to the content of the schedule is found at [98] and [103]-[104] of the judgment of Johnson J as follows:

[98] I have had regard to the cases referred to by the Applicant as suggested comparable cases. Those decisions are R v O'Leary [2004] NSWSC 821; R v Heffernan [2005] NSWSC 739; Apps v R [2006] NSWCCA 290; R v Waters [2006] NSWSC 502; R v Harvey [2007] NSWSC 871; R v Thompson [2008] NSWSC 109; R v Pocock [2008] NSWSC 1435; R v Shamouil [2009] NSWSC 24; R v O'Donnell [2009] NSWSC 42; R v Edwards [2009] NSWSC 164; R v Carr [2009] NSWSC 995; R v Cox [2009] NSWSC 1067; R v Holcroft [2010] NSWSC 1294; R v Borg [2010] NSWSC 951; R v Jones [2010] NSWSC 432; R v Wong [2010] NSWSC 171 and Lee v R [2011] NSWCCA 169. In addition, I have had regard to Tran v R.

...

[103] It is the case that the full term of imprisonment of 24 years imposed upon the Applicant is greater than the full term imposed upon any of the offenders in these cases. A head sentence of imprisonment for 24 years was imposed by this Court on a successful appeal by the offender in Tran v R.

[104] The non-parole period imposed, in a number of these cases, was close to or at the level of the non-parole period specified for the present Applicant: R v Wong (15 years and six months); R v Jones (16 years); R v Borg (16 years); R v Holcroft (17 years); R v Edwards (14 years); R v O'Donnell (16 years and six months); R v Shamouil (14 years and six months); R v Pocock (14 years and nine months); R v Thompson (15 years); R v Waters (15 years) and R v O'Leary (16 years).

As Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) said in Beldon and as applies with equal emphasis on a Crown appeal on the grounds of manifest inadequacy:

[101] Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because (if it be the case) the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v R [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v R at 538-539 [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v R [1999] HCA 29; 195 CLR 665 at 671-672 [15].

In referring to the schedule of cases and, in particular, the non-parole period's imposed, the Crown pointed to the fact that in each of R v Jones [2010] NSWSC 432, R v Borg [2010] NSWSC 951, R v Holcroft [2010] NSWSC 1294, R v Shamouil [2009] NSWSC 24, R v Pocock [2008] NSWSC 1435, R v Harvey [2007] NSWSC 871, R v Edwards [2009] NSWSC 164 and R v Heffernan [2005] NSWSC 739, the offending was found to be below mid range, in some cases well below. Only in Edwards, Shamouil and Pocock (where the sentencing judge assessed the objective criminality to be respectively "a little below mid range" and "close to but below mid range") was a non-parole period imposed comparable to that imposed on the respondent. However, as the Crown pointed out, in each of those three cases the offender had pleaded guilty. In Holcroft and Borg, both cases where the offender was sentenced after trial, and in each case where the offender's mental illness was a relevant consideration, non-parole periods of 16 and 17 years were imposed. The Crown submitted that even after affording appropriate weight to the causational impact of the respondent's mental illness, and despite the fact that the intention to kill was formed under some degree of provocation, a sentence providing for a non-parole period significantly above 14 years was called for in this case.

Given the very different factual circumstances in each of the cases included on the schedule, and the limits on the use of unrelated cases for comparative purposes the High Court was concerned to emphasise in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [53]-[54], other than designating the sentence imposed on the respondent at towards the bottom of a notional range for murder I am not persuaded that the cases to which the Crown referred compel the conclusion that the sentence imposed exceeded his Honour's sentencing discretion. As the Court observed in Hili and as Johnson J noted in Beldon at [84], while consistency in sentencing is a laudable objective, what is sought to be achieved is consistency in the application of relevant sentencing principles not some numerical or mathematical equivalence between different cases.

In Hili the High Court also endorsed the views of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 at [303]-[305] as to the use to which information about other cases might legitimately be put. Her Honour said:

[303] A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.

The respondent's counsel drew the Court's attention to graphs prepared by the Judicial Commission relating to sentences imposed on all offenders convicted of murder between January 2005 and December 2011 noting that the head sentence imposed on the respondent was only two years less than the median head sentence of 22 years and the non-parole period two years less than the median non-parole period of 16 years. No further analysis of the statistics was provided and in particular no identification of sentences imposed after the introduction of a standard non-parole period in 2002. For my part, and with the usual caveat as to the utility of sentencing statistics where a sentence is under review, I do not find the statistics particularly instructive other than to confirm what the schedule of cases relied upon by the Crown indicated, namely that the sentence was towards the bottom of the same notional range.

It hardly bears repeating that appellate intervention on the ground that the sentence is manifestly inadequate is not justified simply because the sentence imposed is different from the sentences that have been imposed in other cases, still less that this Court may have exercised the sentencing discretion differently and imposed a heavier sentence.

In the result, I am not persuaded that the sentence imposed was unreasonable or plainly unjust.

The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

DAVIES J: I agree with Fullerton J.

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Decision last updated: 29 April 2013

Medium Neutral Citation:	R v Fahda [2013] NSWCCA 86
Hearing dates:	11/12/2012
Decision date:	26 April 2013
Before:	Simpson J at [1] Fullerton J at [44] Davies J at [149]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - murder - whether sentence is manifestly inadequate - whether sentencing judge erred in assessment of objective seriousness of offence - whether sentencing judge erred in assessing respondent's prospects of rehabilitation - whether sentencing judge erred in assessing extent of respondent's intellectual impairment - whether sentencing judge erred in approach to respondent's mental illness
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Firearms Act 1996
Cases Cited:	Beldon v R [2012] NSWCCA 194 Bugmy v R [1990] HCA 18; 169 CLR 525 Devaney v R [2012] NSWCCA 285 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1 Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575 Hanania v R [2012] NSWCCA 220 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Koloamatangi [2011] NSWCCA 288 Mulato v R [2006] NSWCCA 282 Muldrock v R [2011] HCA 39; 244 CLR 120 Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267 R v Borg [2010] NSWSC 951 R v Cooper [2005] NSWSC 791 R v Edwards [2009] NSWSC 164 R v Engert (1995) 84 A Crim R 67 R v George [2004] NSWCCA 247; 149 A Crim R 38 R v Harvey [2007] NSWSC 871 R v Heffernan [2005] NSWSC 739 R v Hemsley [2004] NSWCCA 228 R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 R v Holcroft [2010] NSWSC 1294 R v Jones [2010] NSWSC 432 R v KB; R v JL; R v RJB [2011] NSWCCA 190 R v Koloamatangi [2011] NSWCCA 288 R v Mulato [2006] NSWCCA 282 R v Nelson (Court of Criminal Appeal, 25 June 1996, unreported) R v Pocock [2008] NSWSC 1435 R v Robinson [2002] NSWCCA 359 R v Saalfeld [2007] NSWSC 376 R v Shamouil [2009] NSWSC 24 R v Shepherd [2006] NSWSC 799 R v Wilson [2005] NSWCCA 112; 153 A Crim R 257 R v Windle [2012] NSWCCA 222 Versluys v R [2008] NSWCCA 76
Category:	Principal judgment
Parties:	The Crown Mohammed Fahda (Respondent)
Representation:	Counsel: M Cinque/L Mathias (Crown) J Stratton SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Respondent)
File Number(s):	2009/39990
Decision under appeal	Citation: [2012] NSWSC 114 Date of Decision: 2012-02-24 00:00:00 Before: Harrison J File Number(s): 2009/39990