R v Qutami

[2001] NSWCCA 353

Reported Decision: 127 A Crim R 369

New South Wales

Court of Criminal Appeal

CITATION:	R v Qutami [2001] NSWCCA 353
FILE NUMBER(S):	CCA 60191/01
HEARING DATE(S):	28 June 2001
JUDGMENT DATE:	28 June 2001
PARTIES :	Regina v Hami Qutami
JUDGMENT OF:	Spigelman CJ at 60; Simpson J at 79; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/1227
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

COUNSEL :	(A) L M B Lampratti (Crown) (R) M Ramage QC & T S Corish
SOLICITORS:	(A) S E O'Connor (R) Murphy's Lawyers Inc.
CATCHWORDS:	Sentencing - solicit to murder - non parole period manifestly adequate - desirability of prisoner giving evidence - very limited weight to be given to untested, self serving statements made to experts - role of restoration of community harmony
LEGISLATION CITED:	Crimes Act s 26 Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999, s 44
CASES CITED:	R v Keys [2001] NSWCCA 232 Bednarz [2000] NSWCCA 533 Murat Ay (unrep NSWCCA 30/10/98) R v Carrion (2000) 49 NSWLR 149 R v Hampton (1998) 44 NSWLR 729 R v Bloomfield (1998) 44 NSWLR 734 R v Glen (unrep NSWCCA 19/12/94) R v Fahda (unrep [1999] NSWCCA 217, 31/8/99)
DECISION:	Appeal allowed in part ; Appeal against sentence of imprisonment of 4 years 5 months and 21 days dismissed; Non-parole period of 11 months, 21 days set aside - in lieu the Court fixes a non-parole period of 29 months, 21 days commencing on 8 March 2001 and ending on 28 August 2003

IN THE COURT OF
CRIMINAL APPEAL

SPIGELMAN CJ

SIMPSON J

SMART AJ

Thursday, 28 June 2001

REGINA v HAMI QUTAMI

JUDGMENT

1   SPIGELMAN CJ: I invite Smart AJ to deliver the first judgment.

2   SMART AJ: The Crown appeals against the sentence of imprisonment of four years five months and twenty-one days with a non-parole period of eleven months twenty-one days imposed by the District Court upon Hami Qutami for the offence of soliciting to murder on the ground that the sentence was inadequate. The judge took into account that Mr Qutami had earlier spent six months and ten days in custody in relation to the offence. Thus, the effective head sentence was five years with a non-parole period of eighteen months. On the day of the trial the applicant pleaded guilty. A further charge of incite to kidnap was not pressed.

The Background

3   Mr Qutami has been in Australia since 1973. He is of Jordanian extraction and the uncle of the proposed victim, Ruba Qutami, who was aged twenty at the time of the offence in August 1999. She grew up in the home of her family under the care of her parents and with her brother and two sisters in Smithfield. The family were Orthodox Christians. Across the street there lived another Arabic family called Raad, but that family (parents, four sons and a daughter) were of the Muslim faith.

4   Ruba became friendly with the oldest son, Haytham Raad. Her parents tolerated her being a casual friend of Haytham. In early 1976 she formed a sexual relationship with Haytham and that continued for nine months before her parents found out about it. Thereafter, she had a number of serious fights with her parents and left home over Haytham. Her father made serious attacks upon her and hurt her. He told her to stop seeing Haytham.

5   Her family and her uncles, including the prisoner, promised her that if she returned home she could continue her relationship with Haytham in peace. Upon her return home her father continued to harass her. In 1997 she was forced to travel to Jordan, where she was married to her first cousin, Nashat Ayout. They stayed in Jordan for nine months before they returned to Australia and lived with her parents in their Smithfield home.

6   She was extremely unhappy in the relationship with Nashat and living at home with her parents. She was kept under constant supervision and control. She was driven by family members to and from the technical college where she was training. On two occasions Nashat slapped her across the face.

7   In February 1998 she resumed her relationship with Haytham. Her family became suspicious and she found that she was subject to intolerable pressure. She left Nashat and her family in June 1998 and moved into a refuge. After she left the refuge she lived with Haytham in his sister's house. Her parents, uncles, brother and sisters visited that residence continually and tried to persuade her to return to her parents' home.

8   On two occasions her father and another uncle tried to forcibly put her into a car. In August 1998 she took out an Apprehended Violence Order against her father, her mother and Nashat. He tried to force his way into Fairfield Police Station to get to her before she took out the Apprehended Violence Order on him.

9   At an appearance at the Fairfield Court House the prisoner spoke to Ruba Qutami outside the Court Registry and said to her sarcastically and insincerely, "I love you and don't worry." He was with Ruba's mother and aunt. By this time Ruba had become pregnant. Her family became aware of her condition.

10   She and Haytham moved to his father's house at Bonnyrigg on 20 August 1998. On 22 August 1998 Ruba was visited by her Uncle Ruda and his wife. They urged her to return to her parents' home. She declined. They verified that she was pregnant.

11   On Monday 24 August 1998 Detective Sergeant Bullock and Sergeant Robertson came to the Bonnyrigg home and told her of the threat to her life and that of Haytham. They left the home. The police were concerned about their safety and assisted them to find accommodation.

The Soliciting

12   On 20 August 1998 the prisoner telephoned Mr P J Jumeau, the director and owner of Southern Cross Investigations. The prisoner enquired how much it would cost to have his niece killed. He explained:

"We're Christians she's moved out with a Muslim this is very bad
in our culture, we'd like to get rid of her totally."

13   A little later he enquired as to the cost of having her seized and brought to the family. He added that they had someone who could deal with her. Mr Jumeau said that he would speak to his partner.

14   Mr Jumeau immediately contacted the police, who installed a tape recorder on his telephone. On Friday 21 August 1998 the prisoner telephoned Mr Jumeau and pursued the matter. They agreed to meet. A little later the prisoner telephoned again and changed the meeting place to 2pm on 22 August 1998 at the Cafe Paye

15   lla in Liverpool Street. About 11.40am on that day the prisoner telephoned and re-scheduled the meeting to 4pm on Monday 24 August 1998. About 3.25pm on that day the prisoner telephoned again. The meeting was re-scheduled for 6.30pm that day. The men met as arranged and spoke for about twenty-five minutes. A listening device had been fitted to Mr Jumeau's body.

16   At the meeting the prisoner explained that the intended victim had gone with her boyfriend. He was a Muslim and she was a Christian. She had left home and was living with him in his father's home. She was already married to another man. The prisoner also referred briefly to her going to the police and to the Court proceedings she had taken against her father. The conversation continued:

"Jumeau: What is it you really want us to do…
Prisoner: When I talk to you on the telephone about taking care
of it, kidnapping or whatever you like, get rid of her completely.

Jumeau: You mean as in shoot her or something like that.
Prisoner: You do, I don't know which way you do it.

Jumeau: Any way that's convenient is that what you're saying?
Prisoner: That's right. The reason I told you the whole situation I know some people they say because the apprehended violence order against her father. I don't like to interfere or something you know."

17   Mr Jumeau asked for and was given the intended victim's name. The prisoner told him that he would get some of his brothers together on that or the following night. The prisoner asked, "Can you tell me how much? Can you tell me if you'll do the job or not?" There was further discussion. It continued:

"Jumeau: Well obviously the father is agreeable to what your requests are.
Prisoner: Yes, yes. The reason I come here is because I want to get rid of her completely you understand.
... ... ...
Jumeau: Look I need to know what your limits are so I can give you a figure.

Prisoner: Have you got a figure?

Jumeau: You could be looking at anywhere between sixty, seventy thousand dollars, what's your position on that?"

18   The prisoner thought this was too much and eventually said that a friend had told him twenty-five (thousand). Mr Jumeau explained that he would not personally do the job. He would have to arrange for someone else to do it and he'd have to make something as a commission on top of it.

19   Mr Jumeau raised the position of the boyfriend. The prisoner agreed that there "could be a sort of one in, all in situation."

20   The prisoner told Mr Jumeau that if he could not do the job the family would have to find someone who could. The prisoner suggested a simulated accident, perhaps a car accident, would be a good idea. There were some further discussions about money, with the prisoner coming back to the figure of $25,000. He and his brothers were all going to contribute. After further discussion the two men separated.

21   The police arrested the prisoner later that evening before the prisoner's plans could be further implemented.

22   On 9 September 1998 when she attended the Local Court at Burwood in respect of the proceedings against her father, she was accosted by her Aunt Mona, the prisoner's wife. The judge found that Ruba still had strong feelings of love for her family and her uncle despite what he had done and that, as she said, family feelings and ties within the Jordanian culture are very strong. Her aunt asked Ruba to write a letter to back her uncle up. She did so that day stating:

" ... I know that my uncle Hami wouldn't do any harm to me ... my uncle has been under a lot of stress and pressure and lost his job and he wouldn't have known what he did. I can understand why he went this far ..."

23   In her statement of 14 September 1998, Ruba detailed the pleading of her Aunt Mona to help the prisoner. Ruba explained that because of the family ties she found it hard knowing that her uncle could go to gaol for twenty years or more. She reiterated that she and Haytham wanted to live in peace without harassment from any members of her family or his.

24   On 5 November 1998 she swore an affidavit which was used in a bail application by the prisoner. She stated that she had no fears for her safety and would like him released from custody on bail as she did not believe he would harm her in any way.

25   The prisoner was born on 22 April 1953. He came to Australia when he was twenty. He had no previous convictions.

26   The judge had a considerable number of medical reports and a psychologist's reports. It is not necessary to canvass these in detail. Doctor J A Roberts, who provided a number of reports, has summarised the effect of many of the other reports. He concluded:

(a) Regardless of the diagnostic label, there was uniform agreement that the prisoner had certain problems relating to anxiety and depression. He needs continuing psychiatric treatment. There was no evidence of psychosis or impairment of comprehension.

(b) The prisoner's conduct had to be considered in the context of his cultural educational and social background. That included the great disgrace experienced by the family when a daughter from a Christian Orthodox family left her husband and lived with a Muslim and was pregnant to him and the closeness of family ties. No stone would be left unturned to have her leave her boyfriend and return to her husband and her family. Regard also had to be had to the depth of the antipathy between those of the Christian Orthodox persuasion and those of the Muslim persuasion. The hostilities and prejudices of 1500 years and their deep effect had to be taken into account.

(c) The prisoner is suffering from diabetes and a neurological condition, namely, a transient reversible ischaemic episode. It has not left any permanent residual impairment. This appears to have been stress related. Incarceration may consequently have a harsher effect upon him.

(d) The prisoner no longer wishes to have anything to do with Ruba. He appears to have had no adverse report from his release on bail on 25 November 1998 until his return to prison on 29 November 2000 on pleading guilty.

(e) The prisoner had learnt a lot since his arrest on 24 August 1998 and is unlikely to be a threat to his niece or to re-offend."

27   The judge accepted that the prisoner is unlikely to re-offend.

28   It seems that the applicant has suffered considerable emotional disturbance and stress since his dismissal as a railway guard, which he regarded as unjust. Since that time he has been unemployed. He depends on the pension. He has six children. Doctor Roberts recorded in his report of 22 October 1998 that the prisoner completed his Higher School Certificate in the 1970s and was accepted by Monash University to study economics and politics. He did not take up this opportunity. He has also undertaken some studies in aviation and has flown.

29   The judge noted there was a considerable body of character evidence. Amongst other things it spoke of his devotion to his family, his church and his Orthodox Christian faith, his active support of Arabic organisations and his general good character. The judge took the view that the prisoner had been caught up in his cultural traditions and the desire of the family to have Ruba return to the family and conform with the family's beliefs, customs and religious practices.

30   The judge thought it was unlikely the prisoner would have carried through with the plan to have Ruba killed but recognised that this opinion may be wrong. The evidence did not entitle the judge to make the finding mentioned. The evidence suggested that it was the prisoner's arrest, charging and incarceration which impacted upon him and the whole family. The police thought that there was a real risk to Ruba based on sound reasons. The terms of the recorded conversations are stark. The most favourable finding available on the evidence to the prisoner was that the Court was unable to say whether he would have proceeded with the plan to kill if he had not been arrested, although there was a real risk he would. The prisoner did not give evidence before the judge. This increased the difficulty of making any positive finding.

31   The judge said:

"However, I think it likely, having looked at all this, that the prisoner himself, because of his post traumatic stress disorder, his stress, his ischaemic heart disease and other things allowed himself to get overborne and foolishly to rush off and engage in a wild flight of fancy in which probably at most he would have wasted the time of a private inquiry agent."

32   The judge was incorrect in finding that the prisoner has ischaemic heart disease. The reports indicate that he does not suffer from such disease. The relevant symptoms were stress-related. However, this slip is of little consequence.

33   It was not open to the judge on the evidence to find the prisoner allowed himself to get overborne. He seems to have been the prime mover in the soliciting to murder. He may well have been influenced by his cultural and family values and the anger of other members of the Qutami family, but it is going too far to say that he was overborne. Nor do I think it was open to the judge on the evidence to hold that the applicant had engaged in a wild flight of fancy and which probably, at the most, would have wasted the time of the private inquiry agent. The transcripts of the various conversations the prisoner had with Mr Jumeau suggest that the prisoner was earnest and persistent. The objectionable harassment did not let up until the prisoner's arrest.

34   The judge stated: "I am sure he suffered himself as a result of all this."

35   In large measure the prisoner's suffering was self-induced and it seems principally to be related to his period in gaol, although there are expressions of remorse. The judge declared himself sure that the prisoner "sees now in the cold light of day what an incredibly foolish thing it was." That may be so. This is a hard finding to make when the prisoner gave no evidence.

36   The judge took into account matters of general deterrence, including deterring those who might be minded to take into their own hands the task of wreaking retribution upon women in their community who do not meet their standards. The judge stated he took into account individual deterrence.

37   The judge noted the campaign against Ruba had ceased, that she was now back in the fold to the point where she was sitting in court next to the prisoner's wife and nursing a baby. The judge added she was no longer in fear of the prisoner and that her father, her brother and her uncles have all ceased their campaign against her. The judge stated he was not able to simply say all is now well. He thought the applicant no longer needed personal deterrence.

38   Ruba adopted a generous attitude to the prisoner and his family. That is not something on which the prisoner can trade. She should never have been in fear. The judge said:

"I regarded him as having pleaded guilty at the first opportunity because a real question existed as to whether he was fit to plead and that required possible ventilation; it was when it was decided that there was no basis for concluding he was unfit to plead that a plea was entered."

39   At the sentence hearing, the Crown Prosecutor said:

"He pleaded at the trial. The only issue at trial was going to be his mental state. The report was obtained from the psychiatrist, Doctor Nielsen. When that showed he was fit to plead, the plea of guilty was entered. It will be my submission, for all real purposes ... "

40   Then the answer trails off. It may have been these remarks which led the judge to make the finding which he did.

41   The judge also took into account the need to restore harmony to the community and make sure it is not disrupted again. He said that the only way he could do this was to impose a head sentence which accords with principle but to specify a non-parole period that is very much less than normal. I have considerable reservations as to this approach and its correctness in this case. A person should not be given a discount because, having solicited to murder, the discount will help to restore harmony. This is a matter which requires considerable caution. By a discount I am including treating the matter as a special circumstance which would lead to a lesser non-parole period. I am not suggesting that the matter is wholly irrelevant.

42   The principles on which Crown appeals against sentence are decided are well settled. They have been restated many times. Indeed, they were restated as recently as this morning in R v Keys [2001] NSWCCA 232. This Court exercises considerable restraint in dealing with such appeals and in intervening in the orders made by the sentencing judge. It is not to the point that this Court would have imposed a greater sentence. The sentence imposed must be manifestly inadequate. In the absence of identifiable error, the inadequacy of the sentence must be plain. When this Court re-sentences on a Crown appeal the sentence imposed is usually at the bottom of the permissible range.

43   The Crown submitted that the judge had taken an inappropriately benign view of the facts and that the sentence does not reflect the seriousness of the crime. In particular, the minimum term was wholly inadequate. The Crown further submitted that while the judge was correct to give the prisoner a discount for the plea of guilty, the Crown case was a strong one, with the critical evidence being recorded on the tapes.

44   The Crown submitted there was no justification for the shortening of the non-parole period to the degree that occurred in this case. It accepted it was correct to take into account by way of special circumstances that the prisoner had no previous convictions and, presumably, his state of health.

45   However, it was submitted that the special circumstances which existed in this case did not justify the reduction which occurred, nor did his need for personal rehabilitation under the guidance of the Parole authorities.

46   The Crown further submitted that the judge incorrectly approached the fixing of the non-parole period on the basis of deciding that there was a real need for a shorter non-parole period rather than a need for a longer period on parole.

47   I am not persuaded that the judge erred in his approach. Emphasis was placed by the Crown on the judge's "need for harmony" approach. The Crown further contended that on any view the sentence was manifestly inadequate. That is, on the facts the sentence bespoke error.

48   The prisoner submitted that the sentence was a proper one, that no error on the part of the sentencing judge had been shown and that, absent any such error, the Court should not intervene. It was further submitted that the exercise of the sentencing discretion was correct in that it reflected and took into account the objective seriousness of the offence and the particular subjective features of the case in a balanced way.

49   The prisoner further submitted the Court should dismiss the appeal in the exercise of its discretion because of the element of double jeopardy, the delay in the hearing of the appeal and the implicit concession by the Crown before the judge that the overall sentence imposed on the prisoner was within the permissible range.

50 I agree with the prisoner's submission that the facts as to charges under s 26 of the Crimes Act vary widely. Only limited assistance is to be gained from sentences in other cases. The sample available from the statistics of the Judicial Commission for the period April 1993 to March 2000 is small. There are seven cases. Minimum and fixed terms vary from twelve months to ten years. There are two instances of minimum terms below thirty-six months and four above thirty-six months. Full terms vary from thirty months to sixteen years. The statistics for the period January 1990 to May 1998 record that there were nine cases and that minimum terms ranged from twelve months to ten years. There were three cases below thirty-six months and five cases above thirty-six months. Full term sentences ranged from thirty months to sixteen years. Five cases involved sentences of six years or more. There was one case of a bond prior to April 1993. This short review indicates the limited assistance which the statistics afford in the present case.

51   The prisoner's submissions analysed the remarks on sentence and contended that the judge had taken into account all relevant objective and subjective features and given each its correct weight. The prisoner repelled the criticisms made by the Crown. The prisoner submitted that the judge was entitled to give full benefit to the plea of guilty. This was not a case where the applicant was entitled to a discount at the top of the range for his plea of guilty. The sentence itself suggests the prisoner was given a generous discount for his plea.

52   The prisoner submitted that the judge had not erred in his approach to the fixing of the non-parole period and the existence of special circumstances. It is not in dispute that there were special circumstances. The question is whether the allowance made for these was outside the limits of the sound exercise of the judge's discretion. The prisoner relied on the finding that individual deterrence was no longer required, that he had served six months and ten days in custody, the plea of guilty being deemed to be at the first available opportunity, and the need for harmony in the community. The prisoner drew attention to his age, character, lack of prior convictions, his medical condition and his alleged need for an extended period of supervision while on parole.

53   Not all of these matters could accurately be described as special circumstances but his lack of prior convictions (including his prior good character) and his medical condition are. To suggest that a period of supervision in excess of three years was required is erroneous.

54   During the course of these reasons I have identified particular errors made. Further, the Crown is correct in its submissions that the sentence does not reflect the objective gravity of the offence and that undue importance and weight has been given to the subjective features. In particular, the non-parole period does not, as it should, reflect the criminality of the offence. The judge's stated sympathy for the prisoner has led him to take a view of the facts which is too benign and to fix a non-parole period that is grossly and manifestly inadequate. The full term of the sentence is inadequate, but not so inadequate as to lead me to disturb it.

55   As mentioned earlier, the prisoner submitted that if the Court thought the sentence, including the non-parole period, was manifestly inadequate, it should, nevertheless, dismiss the appeal on the grounds mentioned. I disagree. While there is the element of double jeopardy, it is not sufficient in the present case. The delay in hearing the appeal has been minimal - just a little over three and a half months since sentence. The Crown Prosecutor said was that the type of range that was applicable was that in Bednarz [2000] NSWCCA 533 and Murat Ay NSWCCA unreported, 30 October 1998, where the minimum term ranged from two years in the former to five years in the latter case. The Crown did not commit itself to a particular figure. There is no sound discretionary reason justifying non-intervention by the Court.

56   Having regard to the objective and subjective features, including taking into account the plea of guilty, the effective non-parole period should be three years, not eighteen months. Credit will be given for the time spent in custody prior to sentence.

57   I wish to emphasise that this Court will ensure that those who solicit to murder are severely punished. It will not tolerate people taking the law into their own hands because others do not meet their standards or their code of morality or comply with their religious beliefs and practices.

58   There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.

59   There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.

60   I propose the following orders:

1. Crown appeal against sentenced allowed in part.

2. The appeal against the sentence of imprisonment of four years, five months and twenty-one days is dismissed.

3. The non-parole period of eleven months, twenty-one days is set aside and in lieu thereof the Court fixes a non-parole period of twenty-nine months, twenty-one days, commencing on 8 March 2001 and ending on 28 August 2003.

61   SPIGELMAN CJ: Prior to this Court interfering with a sentence it must identify a relevant legal error that entitles it to do so. In my view, for the reasons outlined by Smart AJ, no such error appears with respect to the head sentence.

62   There is no justification for the Court interfering with that head sentence of five years. It appears consistent with a head sentence in the range of seven years with the appropriate discount for a plea of guilty of something of the order of two years.

63   With respect to the non-parole period, two legal errors are identified in the Crown submissions. First, on its face, in all of the circumstances, the non-parole period does not reflect the objective gravity of the offence and is manifestly inadequate. Secondly, the Crown made a submission with respect to the approach which the sentencing judge took to the identification of the special circumstances that his Honour found.

64   His Honour, in the context of finding special circumstances, said the following:

"I also take into account another unusual feature of this case and it is the need to restore harmony in this community and to make sure that harmony, having apparently been restored, is not disrupted again. So there is a real public interest in ensuring that the reconciliation that has been effected should continue."

65   His Honour went on to say:

" ... because of the unusual and special circumstances here and in particular the fact that an early release will in fact in my opinion be something that would be more likely to ensure that the present state of reconciliation continues."

66   His Honour went on to fix the non-parole period at eighteen months. This was reflected in a particular form in his Honour's judgment by reason of the broken period of prior custody.

67   The submission by the Crown made in this respect was as follows:

"In the context of a finding of special circumstances, the starting point is the need for a longer than usual non-parole period, not the need for a shorter non-parole period."

68   The submission reflects a line of cases which were based on s5 of the Sentencing Act of 1989, rather than the new position which prevails under s 44 of the Crimes (Sentencing Procedure) Act 1999.

69   Section 5 of the 1989 Act was in the following terms:

"5(1) When sentencing a person to imprisonment for an offence, a court is required:

(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence; and
(b) secondly, to set an additional term during which the person may be released on parole.

(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.

….”

70 Section 44 of the 1999 Act provides:

"(1) When sentencing an offender to imprisonment for an offence, a court is required:

(a) firstly, to set the term of the sentence, and

(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

….”

71   In a judgment of this Court in R v Carrion (2000) 49 NSWLR 149 I said:

"15. The Crimes (Sentencing Procedure) Act is in large measure a consolidating Act, but it is not only a consolidating Act. A specific difference is found in the comparison between s44 of the 1999 Act and s5 of the 1989 Act. The previous legislation provided for the setting of a minimum term and an additional term. The new legislation provides, firstly, for the setting of a total term and then, for a non-parole period. This Court has rejected a construction of the Sentencing Act 1989 that in some way it was appropriate to proceed on the basis that the total sentence was a primary consideration. (See R v GDR (1994) 35 NSWLR 376 at 376-377, 378; R v Hampton (1998) 44 NSWLR 729 at 731-732; R v Bloomfield (1998) 44 NSWLR 734 at 740).

16. The 1999 Act makes it clear that the Court must first set the total sentence. Accordingly under this Act, unlike the 1989 Act, a finding of 'special circumstances' would necessarily result in the reduction of what is now called the 'non-parole period'.

17. Perhaps there are other changes in the new sentencing regime which may give rise to issues as to whether or not a previous provision continues to apply. I have in mind in particular s55 of the Interpretation Act 1987 concerning an Act which 'increases the penalty' for an offence. This section is repealed by cl 4.33 of sch 4 of the Crimes Legislation Amendment (Sentencing) Act 1999 and re-enacted as s19 of the Crimes (Sentencing Procedure) Act 1999".

72   In Carrion, I indicated that the approach to the finding of special circumstances, determined in R v Hampton (1998) 44 NSWLR 729 and R v Bloomfield (1998) 44 NSWLR 734 is no longer appropriate. The same is true with respect to the focus upon the issue of whether or not a longer than usual parole period is appropriate - in the old terminology, a longer than usual additional term. The new focus of attention under the 1999 legislation is on a shorter than usual non-parole period. I use the word "usual" to refer to the ratio identified in the respective statutory standards.

73   In these circumstances, I would reject the Crown submission that, by focusing on the need for reconciliation in the family and community affected by these events, the trial judge committed a legal error. The significance of reconciliation of the family was an element relevant to the issue of a shorter than usual non-parole period and it was, in my opinion, open to his Honour to adopt that general approach.

74   It was not submitted to this Court that the issue of reconciliation was entirely irrelevant, although the weight to be given to considerations of that character was said to be very small. Over recent decades the issue of restorative justice has been of considerable and growing significance in discussions about the operations of the criminal justice system. Matters such as community conferencing and circle sentencing have featured in debates about sentencing practice. The role of victims has also been given more weight in matters of sentencing. That has included questions of empowering the victims in a restorative context such as conferencing. Attention has also been given to the significance of re-integrating offenders into their communities, including smaller communities such as extended families.

75   In my opinion, the matters taken into account by the sentencing judge in the comments I have quoted above about reconciliation, were appropriate to be taken into account in a context where one of the purposes to be served by sentencing is to meet the needs of the victim and also of the particular community affected by the crime that has been committed. Accordingly, in my view, his Honour did not commit any legal error in taking these matters into account.

76   That leaves the question of whether or not the weight his Honour gave to these considerations led to a result that the sentence in terms of the non-parole period does not reflect the objective gravity of the offence. For the reasons outlined by Smart AJ, I agree the final result was of that character.

77   Although I have mentioned the appropriateness of taking into account the ruptures to the community caused by the crime and the desirability of re-integrating offenders and of empowering victims in the context of the sentencing process, nevertheless there remains a public interest broader than the particular community affected or the family victimised in a particular way. That public interest is to ensure that crimes of this character are dealt with by punishment at appropriate levels of severity. There is no doubt in my mind, for the reasons identified by Smart AJ, that this was a serious offence, that the offender did attempt, perhaps not particularly competently but did attempt, to engage a person to murder his niece.

78   This is not a matter to which this Court in the public interest that it serves, particularly the general deterrence purpose of sentences, can fail to give significant weight in the sentencing exercise. However, in my opinion the appropriate additional penalty is less than that proposed by Smart AJ. I would increase the effective non-parole period by an additional twelve months, to two and a half years, rather than the non-parole period suggested by Smart AJ, which would take it to three years; namely, an additional eighteen months over that which his Honour the trial judge imposed.

79   I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings.

80   SIMPSON J: I agree with the orders proposed by Smart AJ. I wish only to express very briefly my views about the question of the relevance of the issue of restoring harmony in a community following an offence such as this.

81   I share the reservations expressed by Smart AJ and observe that to take a different approach may involve significant issues of philosophy and sentencing policy. To give undue weight to questions of cultural matters where offences such as this are concerned potentially has a discriminatory effect and may cast certain communities in a different position to other communities in the sentencing which is imposed in these Courts.

82   The principles are, in some respects, analogous to those I have previously discussed in relation to the relevance of forgiveness or otherwise by victims, particularly victims in crimes of domestic violence. I refer to R v Glen (unreported NSWCCA 19 December 1994) and the subsequent decision of R v Fahda (unreported [1999] NSWCCA 217: 31 August 1999)

83   For those reasons, I would not wish to commit myself to a view of the relevance of the question of restoring harmony in this particular community, but I do stress I share the reservations as I have expressed. I agree with the orders proposed by Smart AJ

84   SPIGELMAN CJ: The orders of the Court are as indicated by Smart AJ.

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