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R v Mohammed Fahda

R v Mohammed Fahda

Case [2012] NSWSC 114 24 February 2012

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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 1999
Cases 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 168
Category: 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Mohammed Fahda

Details

AGLC: R v Mohammed Fahda [2012] NSWSC 114
Case: [2012] NSWSC 114
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the case of R v Mohammed Fahda, the appellant was convicted of murder. The case was heard in the High Court of Australia. The central issue for the Court was the appropriate sentence to be imposed on the appellant, who had been diagnosed with long-standing paranoid psychosis and was of below average intelligence. The offender had killed the victim during a chance encounter, amidst a backdrop of recent interfamily enmity and violence, including the murder of the offender's brother. The Court was required to consider the offender's mental illness and its impact on the assessment of the appropriate sentence. The appellant was also held in segregation, under onerous conditions of incarceration.

The central legal issue before the Court was the appropriate sentence to be imposed on the appellant, taking into account his mental health condition and the particular circumstances of the offence. The Court was required to balance the need for punishment and deterrence with the need to consider the offender's mental illness and the circumstances of the killing. The Court was also required to consider the impact of the conditions of the offender's incarceration on the sentencing decision.

The Court held that the appellant's mental illness was a critical factor in assessing the appropriate sentence. The Court noted that the appellant's long-standing paranoid psychosis and below average intelligence significantly impaired his ability to control his violent impulses. The Court also considered the recent history of interfamily enmity and violence, including the murder of the offender's brother, as an aggravating factor. However, the Court held that the offender's mental illness was a mitigating factor that required consideration in assessing the appropriate sentence. The Court also considered the onerous conditions of the offender's incarceration, including segregation, as a mitigating factor. Ultimately, the Court held that the appropriate sentence was life imprisonment with a non-parole period of 24 years.

Orders