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
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…
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.
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Details
AGLC
R v Qutami [2001] NSWCCA 353
Case
[2001] NSWCCA 353
Decision Date
CaseChat Overview and Summary
In the case of R v Qutami, the appellant was convicted of attempting to solicit the murder of an individual. The matter was heard in the High Court of Australia, where the appellant challenged the length of his sentence, specifically the non-parole period. The appellant argued that the non-parole period of 14 years was manifestly inadequate, given the nature and circumstances of the offence. He also contended that the court had erred in not giving sufficient weight to his willingness to give evidence against other parties involved in the criminal activity, which could have potentially led to more lenient sentencing.
The legal issues before the court involved the assessment of the non-parole period, the weight to be given to the appellant's offer to give evidence against other criminals, and the limited weight to be placed on self-serving statements made to experts. The court needed to determine whether the non-parole period was manifestly inadequate, whether the appellant's offer to give evidence should have been given more weight, and how much consideration should be given to the untested, self-serving statements made to experts. Additionally, the court had to consider the role of restoration of community harmony in the sentencing process.
The court found that the non-parole period was not manifestly inadequate, as it took into account the seriousness of the offence and the need for general deterrence. The court also held that very limited weight should be given to untested, self-serving statements made to experts, as they could not be considered as reliable evidence. Furthermore, the court recognised the importance of restoration of community harmony in the sentencing process, but found that it did not outweigh the need for general deterrence and specific deterrence in this case. As a result, the appeal against the sentence was dismissed.