R v Mohammed Fahda
[2012] NSWSC 114
•24 February 2012
Supreme Court
New South Wales
Medium Neutral Citation: R v Mohammed Fahda [2012] NSWSC 114 Hearing dates: 2 December 2011 Decision date: 24 February 2012 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Sentenced to a non-parole period of 14 years, which will be taken to have commenced on 28 September 2009 and which will expire on 27 September 2023, and a balance of term of 6 years, commencing on 28 September 2023 and expiring on 27 September 2029. The first day upon which the offender will be eligible for release on parole is 28 September 2023.
Catchwords: CRIMINAL LAW - sentence - murder - offender with long-standing paranoid psychosis and below average intelligence - chance meeting with victim - recent history of interfamily enmity and violence including murder of offender's brother - where offender's mental illness critical to assessment of proper sentence - where offender in segregation - onerous conditions of incarceration Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Lewis v R [2011] NSWCCA 206
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39
Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Anderson (1980) 2 A Crim R 379
R v Bell (1985) 2 NSWLR 466
R v Bollen (1998) 99 A Crim R 510R v Borg [2010] NSWSC 951
R v Cooper [2005] NSWSC 791
R v Garforth (unreported, NSWCCA, 23 May 1994)
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Heffernan [2005] NSWSC 739
R v Hemsley [2004] NSWCCA 228
R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252
R v Israil [2002] NSWCCA 255
R v Matheson [2006] NSWSC 332
R v Owens [2008] NSWSC 1375
R v Previtera (1997) 94 A Crim R 76
R v Saalfeld [2007] NSWSC 376
R v Shepherd [2006] NSWSC 799
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168Category: Sentence Parties: Crown
Mohammed Fahda (Offender)Representation: T W Thorpe (Crown)
P Hamill SC (Offender)
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Oxford Legal (Offender)
File Number(s): 2009/39990
remarks on sentence
HIS HONOUR: On 13 September 2011 the offender was found guilty, and subsequently convicted, following a trial before a jury, of murdering Abdul Darwiche on 14 March 2009 at Bass Hill. In sentencing the offender I am required to determine the facts relevant to the exercise of my sentencing discretion in a manner that is consistent with the jury verdict. Where the facts are adverse to the offender they must be found beyond reasonable doubt. Facts that favour the offender need only be established on the balance of probabilities. The objective of my fact finding after trial is not to determine the basis of the jury's verdict, but to determine the facts that are both consistent with it and material to the sentence.
The incident
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.
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.
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.
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
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.
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.
Subjective circumstances
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.
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.
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.
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.
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.
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.
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.
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.
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.
Defences and findings consistent with the verdict
The only significant matters that were in dispute before the jury related to self-defence, the partial defence of provocation and the partial defence of substantial impairment. In the events that occurred, it is clear that the jury either rejected or did not accept any of these defences. Having regard to the way in which 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.
For example, in R v Bell (1985) 2 NSWLR 466 at 485, Lee CJ at CL said:
"The rejection of [provocation and self-defence] (or any other defences) does not necessarily mean that the accused cannot get the benefit, as a mitigating factor, at least to some extent of the factual basis upon which they rested. If the sentencing judge is satisfied from credible evidence in the case that there was a degree of provocation, he may take it into account as a mitigating factor; likewise, if the judge is satisfied from credible evidence that there was an element of self defence involved in the killing."
To like effect, Hoeben J in R v Heffernan [2005] NSWSC 739 at [50] - [54] held that the combination of self-defence, intoxication and provocation (all of which were rejected by the jury) combined to place the offence at the bottom of the range. The same applies to the evidence relating to the offender's mental illness. This is referred to later in these reasons.
Self-defence
It is clear that the rejection of the defence of self-defence means that the jury found that there was no reasonable possibility that the offender believed that his act of shooting the deceased was necessary in order to defend himself. The offender gave evidence that he shot the deceased because he thought that the deceased was going to shoot him. There was no evidence that the deceased was armed at the time with a firearm or any weapon at all and no weapon was found upon the deceased following the shooting. The jury must have rejected the offender's explanation for having shot the deceased. I am not satisfied that there is any evidence upon the basis of which I could find that there is any element of self-defence involved in the commission of this offence.
Provocation
The jury also rejected the offender's case on the issue of provocation. It was contended on behalf of the offender that the most likely reason for this is that the jury accepted that the offender lost self-control as a result of his encounter with the deceased but did not accept that the conduct of the deceased could cause an ordinary person in the position of the offender to have so far lost his self-control as to form an intention to kill the deceased or to inflict grievous bodily harm. It was submitted on behalf of the offender that the jury may have accepted the evidence that was led to establish provocation, but found that the defence failed the test in s 23(2)(b) of the Crimes Act 1900 . Upon this basis it was submitted that I would accept that the actions of the offender were the result of a loss of self-control brought about by something that the deceased said to the offender about the murder of the offender's brother. It was contended that such a finding was not inconsistent with the jury's verdict.
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."
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.
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."
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."
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.
Substantial impairment
The jury also rejected the partial defence of substantial impairment by abnormality of mind. In the circumstances of this case, particularly having regard to the undisputed medical evidence, it seems apparent, and I find, that the jury rejected this defence upon the basis that it did not accept that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. As will be clear from related matters referred to elsewhere in these remarks, and my findings concerning the offender's mental illness, the offender had and continues to have significant mental health problems, which have been documented over many years. I find that the jury could not, acting reasonably, have rejected that history or the opinions of the experts. The jury must, however, have accepted that an application of community standards did not permit them to reduce the offender's liability to manslaughter.
Relevance of the degree of provocation
Section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 provides that evidence of provocation may be taken into consideration as a mitigating factor in sentencing. In R v Heffernan , Hoeben J stated at [50]:
"[50] While provocation in law was not open to the degree that may have reduced murder to manslaughter, that is not to say that the question of provocation is not of relevance for an assessment of the prisoner's objective criminality. There were as I have found circumstances which did amount to provocation, albeit that they did not reach the level required to reduce murder to manslaughter, and accordingly provocation can be taken into account as mitigating the objective severity of the conduct of the prisoner."
To like effect in R v Borg [2010] NSWSC 951, Studdert AJ considered that, while not amounting to a defence, evidence of provocation in combination with the offender's personality disorders and chronic anxiety had an impact upon his ability to exercise self-control. At [39] his Honour said this:
"[39]... I find that what the deceased said, and her decision to replace him as a director and to ask him to leave the business altogether impacted on the self control of the offender and that there was a measure of loss of self control when this crime was committed. In making this finding I have regard to the medical evidence which I accept as to the offender's personality disorder and his chronic anxiety state. Those disorders accounted in part for the impact on the offender's self control."
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.
Relevance of the offender's mental illness
This is not a case in which the offender's mental illness only arose or was detected only after the commission of the crime. The offender's condition is of long standing and is well-documented. Evidence of mental illness or intellectual disability is relevant to sentencing in a number of ways. In R v Hemsley [2004] NSWCCA 228, Grove J said this at [33] - [35]:
"[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at [400]; Jiminez at [25]; Israil at [26]."
In R v Israil [2002] NSWCCA 255 at [21] - [23], Spigelman CJ discussed the effect of mental illness on culpability as follows:
"[21] The significance of mental illness of an offender in the sentencing exercise has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294.
[22] In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.
[23] To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]:
'... 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.'"
These principles were applied in R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38. The Court said this at [41]:
"[41] While we are not persuaded the evidence would support a finding that the Applicant suffered from a serious psychiatric or personality disorder, there was sufficient, in our view, to warrant a finding that his objective criminality was reduced beyond that which a bare analysis of the neglected state of the deceased would, at first blush, suggest."
Moreover, in Lewis v R [2011] NSWCCA 206 at [14], I observed that:
"[14] In cases involving offenders suffering from intellectual disabilities or mental disorders, general deterrence is given less weight and may be moderated according to the extent to which a particular offender knows what he or she is doing and the gravity of his or her actions..."
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 a person without a disability: R v Anderson (1980) 2 A Crim R 379 at 384-5.
It was contended on behalf of the offender that there was no basis in the evidence to support the Crown's submission concerning the offender's future dangerousness. Dr Greenberg's most recent report acknowledges that predictions in this case are "speculative" and "imprecise". It was contended on behalf of the offender that his psychiatric, psychological and intellectual disabilities were central to a proper assessment of the appropriate sentence to be imposed: see Muldrock v The Queen [2011] HCA 39 at [32] and [54] - [58].
The evidence is all to the effect that the offender had a well-documented history of mental illness and that there was a strong family history of mental illness as well. I find that the mental condition of the offender was more probably than not significantly affected by the several incidents and influences that marked out his life, including witnessing an extremely violent assault by his father upon his mother when he was aged eight, being sexually assaulted himself by the principal when still only in primary school, the murder of his brother and the pervading fear of persecution that this caused, as well as his having been stabbed whilst in custody and subsequently hospitalised.
I accept that the offender suffered from post-traumatic stress disorder that was caused and evident prior to the commission of the offence and that this was associated with hyper-vigilance, paranoia, auditory hallucinations, depression and inverted sleep patterns. I also find that the offender was substantially impaired by an abnormality of mind arising from an underlying condition in the form of post-traumatic stress disorder or an anxiety disorder and a probable psychotic illness. I have taken all of this into account in mitigation of the objective criminality of the offence.
Standard non-parole period
For the offence of murder, committed after 1 February 2003, there is a maximum penalty of life imprisonment and a standard non-parole period of 20 years. The latter applies in cases falling in the mid range of objective seriousness. However, since Muldrock it is clear that the standard non-parole period says little about the appropriate sentence for this particular offence. The relevant standard non-parole period does not have "determinative significance" and is not the "starting point " in sentencing for a mid-range offence after conviction: see Muldrock at [17] and [31] - [32].
It is now clear that a "two stage" approach, involving first a comparison between the offence and an hypothesised mid-range offence (as per R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at 580), followed by an inquiry about the existence of reasons to justify a longer or a shorter period on parole, is neither permitted nor justified: Muldrock at [28]. Instead, the High Court there endorsed the "instinctive synthesis" approach revealed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 378 in the judgment of McHugh J:
"[51]... by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence."
Objective seriousness
The Crown contended that this was a case where a sentence of life imprisonment was appropriate. This was said to be so because the level of culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of the maximum sentence. It follows from that submission that the Crown was contending that this case fell into the worst category of cases of murder.
According to the Crown's submissions, this case involved a cold-blooded execution in a public place. It occurred in front of the deceased's wife and his children. The Crown submitted that it was motivated by hatred and revenge because the offender thought that the deceased's family or associates were responsible for the death of his brother. The Crown described these events using a series of epithets, to which senior counsel for the offender took particular exception, which included "atrocious", "detestable", "hateful", "odious", "gravely reprehensible" and "extremely wicked".
The Crown additionally emphasised that the offence was aggravated by the use of a handgun, which the offender conceded in his evidence he was in the habit of carrying. The possession and use of handguns was said to be something that could not and should not be tolerated. The Crown contended that those who carry and use handguns could expect little sympathy when they appear for sentence and that any sentence that is imposed upon the offender should send a clear message that the community cannot and will not condone their use.
The Crown specifically acknowledged the grave significance of a sentence of life imprisonment and what has been said in that regard in R v Garforth (unreported, NSWCCA, 23 May 1994) and the cases that have followed it. The Crown submitted that the objective seriousness of this offence is such as to bring the imposition of a life sentence within the appropriate exercise of the sentencing discretion. The Crown submitted that there was an absence of factors that would mitigate its seriousness.
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: see, for example, R v Shepherd [2006] NSWSC 799 at [49] - [50], [61] and [65]; R v Saalfeld [2007] NSWSC 376 at [24]; R v Cooper [2005] NSWSC 791 at [103]. In Nguyen v R [2007] NSWCCA 363; (2007) 180 A Crim R 267, Smart AJ (with whom Mason P and Adams J agreed) said at [143], "an intention to kill and premeditation are usual elements in a murder of mid range objective seriousness". The offender's submissions emphasised that the meeting between him and the deceased was a matter of pure chance, a factor to which the Crown's submissions make no specific reference.
Secondly, there is evidence of a degree of provocation. In R v Cooper at [103], Buddin J found that evidence of "a measure of provocation" and the absence of premeditation brought an offence of murder below the mid range. In R v Heffernan at [54], evidence of a degree of provocation and self-defence combined to place the offence of murder at the bottom of the range of objective seriousness.
Thirdly, while murder is always an offence of grave seriousness (see, for example, Nguyen at [144]), the circumstances of this particular offence do not have characteristics of gratuitous violence or brutal cruelty often present in cases at or above the mid range of objective seriousness: see, for example, R v Matheson [2006] NSWSC 332; R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252; R v Owens [2008] NSWSC 1375.
It was submitted on behalf of the offender that the combination of a lack of planning or premeditation, evidence of provocation, and a lack of gratuitous cruelty or violence bring the objective seriousness of the present offence below the mid range for murder offences. While the use of a weapon is an aggravating feature, it "is not unusual in this kind of offence": per Hoeben J in R v Shepherd at [58].
It was conceded that the offence occurred in the presence of members of the deceased's family and that that was an aggravating feature of the offence. However, it was submitted that the commission of the offence was a spontaneous response to a chance meeting, which reduced the significance of this factor. The offender denied in cross-examination that he saw the children.
The objective seriousness of the offence is to be determined without reference to the personal attributes of the offender, but "wholly by reference to the nature of the offending": Muldrock at [27]. However, such factors remain particularly relevant to any determination of the appropriate sentence to be imposed.
Other mitigating features
The absence of premeditation, the offender's mental health, the background of violence, including the death of the offender's brother and the associated provocation, have all been referred to as mitigating features of this offence. In addition, the offender does not have any significant criminal record of previous convictions. He was 21 at the time of the commission of the offence. It was contended on his behalf that by reason of his youth and lack of a significant record the offender had good prospects of rehabilitation and was unlikely to reoffend. The offence was not part of a planned or organised criminal activity.
In addition, the offender made a series of admissions that facilitated the efficient conduct of the trial. This resulted in a relatively short trial occupying less than two weeks. In this way the administration of justice was facilitated and a court is entitled to reduce the penalty in recognition of this fact: s 22A Crimes (Sentencing Procedure) Act .
Victim impact statements
A series of victim impact statements from the close relatives of the deceased, including his wife and children, were read aloud to the Court. All spoke of his or her own reaction to the death, as well as that of the extended family. All of these people would appear to be labouring with the burden of grief in various and personal ways. The death of the deceased is undoubtedly a terrible and unending fact of life for them and the rest of the family. Nothing that I have said in the course of delivering these remarks should be taken as in any way derogating from or diminishing the importance of the life of the deceased in the eyes of his family and friends who remember him. I am, however, mindful of the principles referred to in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must conform to them.
Contrition and remorse
Senior counsel for the offender quite properly conceded that it was difficult in circumstances where the offender has pleaded not guilty to make too much of a claim in his favour based upon contrition and remorse. However, the offender wrote a letter in his own hand that was tendered before me and the sentiments expressed in the letter are necessarily important in the scheme of things. The letter was in the following terms:
"Since I been arrested till today I'm in segro. I'm locked in my cell 22 hours a day in four walls. I've had plenty of time to think of my actions. Segro is a punishment in a punishment. Only if I could go back in time and change the circumstances. Unfortunately I took a man's life from his wife and kids, which I regret and I'm sorry. I was not in control of my actions. I have limited memory of my actions. I was not thinking straight. I panicked because I am still traumatised from my brother's death. The way he died and where it happened and how it happened. I did not see his wife and kids and other family members at the time. I was numb and blank and not thinking straight. It was like I was not in my body. My mum and dad constantly cry when they see me. They lost one son and have lost another one. I have caused a lot of trauma to my family and others. It was not revenge that day. I left home not going looking for him or expected to see him because I felt blank and shocked. I could not see a way to leave the petrol station. I realise I have committed the ultimate sin in the Quran and Bible. I have not stopped praying. I believe I have found God. I seek forgiveness from God his wife and kids, my family and your Honour. I trust your Honour will judge me right. I will accept what your Honour gives me. Intelligence say[s] my life [is] in danger. Even if I do get sentenced I'm not getting out of segro for a long time."
The offender did not give evidence at the sentencing proceedings. No submissions were made by the Crown to suggest that I should not treat the offender's letter at face value as an expression of remorse.
Conditions of incarceration
The offender's solicitor Mr Raheb swore an affidavit that was read without objection at the sentencing proceedings. Mr Raheb said that he had visited the offender at the Lithgow Correctional Centre on 25 July 2011 in connection with these proceedings. He said that the acting security supervisor at the prison told him that the offender has one of the highest security classifications in the facility. He was told that there were concerns for his safety. The supervisor also informed Mr Raheb that there were intelligence reports to suggest that the offender should be segregated for his own safety and that the highest security protocols had to be followed. The offender cannot be permitted to be in contact with mainstream inmates.
Mr Raheb also said that on 30 November 2011 he telephoned the prison and spoke to Mr Andrew Child. Mr Child informed Mr Raheb that the offender was classified as an A2 inmate. That has been his security classification since he was first incarcerated in 2009. He is in the maximum security section of the prison and in segregation. The offender is in a cell for 22 hours every day with two hours of exercise. Mr Child said that the offender's classification would not be reviewed until after he is sentenced. The Serious Offenders Review Council will then review him.
Special circumstances
Counsel for the offender submitted that a finding of "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act was justified and warranted by reason of the offender's age, his lack of education, his lack of vocational training or work experience and his mental illness and low intelligence. These all suggested a significant need for supervision and intensive assistance by appropriate professionals upon his return to the community.
Findings and consideration
I am of the view that the evidence establishes beyond reasonable doubt, and consistently with the verdict of the jury, that the offender shot the deceased with the intention of killing him. I am of the view, however, that in the circumstances of this case the offence of murder falls in the mid range of objective seriousness. This is for the following reasons.
I accept that the crime was spontaneous and unplanned. The offender and the deceased encountered one another at a location unconnected to either of them and purely by chance. As far as the evidence revealed it, there would appear never to have been any prior encounter or meeting between the two men in any public or private setting, with the possible exception of a courtroom or its immediate vicinity. The offender had no reason to suspect that the deceased would be at the service station and was surprised to see him there.
The offence was not associated with any gratuitous cruelty or additional violence beyond that which was instrumental in causing the death of the deceased. There was no degrading conduct or taunting of the deceased or any prolongation or extension of the events that led to his death.
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.
I am not satisfied that the offender was, in any way, acting in self-defence. The deceased was not armed and he presented no immediate threat of personal physical danger or harm to the offender as he drove out of the service station.
I reject the Crown's submission that this case of murder falls into the worst category. I also acknowledge the force of the offender's rejection of the emotive descriptions of the offence upon which the Crown placed some considerable emphasis. It is not particularly helpful to me for the events that give rise to these proceedings to be described as "atrocious", "detestable", "hateful", "odious", "gravely reprehensible" or "extremely wicked" without some corresponding but particular contextual analysis of the offence in question. 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.
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 determining what is an appropriate sentence in any particular case, other mitigating and aggravating factors not directly informing the objective seriousness of the offence are relevant. They have all been referred to above in the context of counsels' submissions. Predominant in my opinion are the significant subjective features of the offender. He was relatively young at the time of the offence. This 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.
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.
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.
I also consider that the offender is not a proper vehicle for pronouncements about general deterrence. 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 or emerged. It was, on the contrary, spontaneous and impulsive. In so saying 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.
I also take into account the fact that the offender is likely to serve the whole of his time in custody in maximum security and in some form of protective segregation. At least for the near future the offender will be incarcerated within a system that also houses members of, or persons associated with, rival families with an established history of enmity and violence. The restrictive conditions to which the offender is and will continue to be subjected are extremely onerous and will make his imprisonment particularly and unusually difficult for him. I am satisfied that his particular psychiatric problems will also adversely intersect with his limited freedoms within the prison system.
I have some difficulty in assessing whether or not the offender is genuinely remorseful. He gave evidence at the trial but did not do so at the sentencing proceedings. His letter speaks in terms that are remorseful on their face but it has to be contrasted with the fact that the offender pleaded not guilty. I acknowledge that he made admissions and that his plea was undoubtedly motivated by the prospect that his defences were meritorious. I also have to accommodate the offender's low intelligence and the extent to which his insight and self-awareness may be reduced by that fact. In technical terms the offender has provided evidence that he has accepted responsibility for his actions and in that way is entitled to be given credit for the remorse that he has shown. He has certainly acknowledged that he has deprived a wife of her husband and children of their father. The letter is, however, not altogether selfless in its tone. I am only able to take limited account of the offender's expressions of remorse as a mitigating factor.
I find special circumstances. In particular the offender's probable need for ongoing and intensive psychiatric treatment, his low levels of educational and vocational training and experience, and his low intelligence all suggest the need for long and close supervision when he returns to the community.
The sentence
The offender has been in custody since his arrest on 28 September 2009. The sentence I impose should commence on that day.
Mohammed Fahda, for the murder of Abdul Darwiche, you are sentenced to imprisonment for 20 years. I set a non-parole period of 14 years, which will be taken to have commenced on 28 September 2009 and which will expire on 27 September 2023, and a balance of term of 6 years, commencing on 28 September 2023 and expiring on 27 September 2029. The first day upon which you will be eligible for release on parole is 28 September 2023.
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Decision last updated: 24 February 2012
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