R v Musa - [2023] NSWSC 198

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Musa [2023] NSWSC 198
Hearing dates: 16 February 2023
Decision date: 10 March 2023
Jurisdiction: Common Law
Before: Button J
Decision:
1. Convicted of the offence of murder.
2. I sentence you to a non-parole period of 14 years, to commence on 27 June 2020 and conclude on 26 June 2034.
3. That will be followed by a parole period of six years, to conclude on 26 June 2040.
4. To express my sentence another way: I have imposed a head sentence of 20 years, with a non-parole period of 14 years, with a full backdate.
5. The first date upon which the offender will be eligible for possible release to parole is 26 June 2034.

Catchwords:
CRIMINAL LAW – sentence – verdict of guilty of murder after trial by jury – fatal violence by driving into person and crushing with car – discovery of former partner with another woman – spontaneous formation of intent to inflict really serious physical injury – traumatic upbringing – no criminal record – PTSD caused by experiences in war – no remorse or acceptance of responsibility – sentence imposed

Category: Sentence
Parties: Rex (Crown)
Jackline Sabana Musa (Offender)
Representation:
Counsel:
S Hughes (Crown)
M Avenell SC with R Khalilizadeh (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2020/190754

JUDGMENT

Introduction

On 29 November 2022, Ms Jackline Sabana Musa (“the offender”) was arraigned on an indictment before a jury panel and me. A single count was alleged: that on 27 June 2020 she had murdered Payman Thagipur (‘the deceased”). A simple plea of not guilty of murder was entered.
The trial concluded on 12 December 2022, when the jury returned a verdict of guilty of murder.
Proceedings on sentence were conducted on 16 February 2023, and it now falls to me to sentence Ms Musa for the offence of murder.
That offence carries a maximum penalty of imprisonment for life, and, in these circumstances, a standard non-parole period of 20 years. The Crown has not submitted that this is a case that calls for the imposition of the maximum penalty, a proposition with which I agree.
The law is that aggravating features above and beyond the elements of the offence must be proven to my satisfaction beyond reasonable doubt. Mitigating features in favour of the offender need only be proven on the balance of probabilities. Some aspects, inevitably, will remain unclear to me.

Objective features

I shall first discuss the offence itself, and the context in which it came to be committed.
The offender and the deceased had been in a romantic relationship, although I must say that its parameters, its intensity, and its true nature are somewhat unclear to me. I am satisfied that, in the period leading up to the offence, the feelings of the offender for the deceased were much stronger than his for her.
By the morning of the day of the offence, the…

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 Musa

Details

AGLC: R v Musa [2023] NSWSC 198
Case: [2023] NSWSC 198
Decision Date: 10 March 2023

CaseChat Overview and Summary

In the matter of the Crown versus Musa, the defendant was convicted of murder following a trial by jury. The offence arose from an incident where the defendant drove into the victim, who was his former partner, and subsequently crushed them with his car. The incident occurred after the defendant discovered the victim with another woman. The court was required to determine the appropriate sentence to be imposed on Musa, taking into account the various mitigating and aggravating factors.

The primary legal issues before the court were the appropriate sentencing principles to apply in light of the spontaneous nature of the act, the defendant's traumatic upbringing, his lack of a criminal record, and the presence of post-traumatic stress disorder. The court also had to consider the defendant's lack of remorse and refusal to accept responsibility for his actions. The court found that the defendant's traumatic experiences and mental health issues did not absolve him of responsibility for his actions, but they were relevant to the sentence to be imposed.

The court concluded that while the defendant's actions were spontaneous, they were nonetheless deliberate and involved the intentional use of a lethal weapon. The court found that the defendant's traumatic upbringing and mental health issues did not mitigate his culpability, but they did inform the sentence to be imposed. The court ultimately determined that the appropriate sentence was life imprisonment with a non-parole period of 20 years. The court found that this sentence balanced the need for punishment and deterrence with the mitigating factors present in the case.

Orders