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262
Court of Criminal Appeal 28 June 2001

R v Qutami

[2001] NSWCCA 353

Also reported as (2001) 127 A Crim R 369
Public order & justice offences
SENTENCING SOLICIT TO MURDER NON PAROLE PERIOD MANIFESTLY ADEQUATE

Citation: R v Qutami [2001] NSWCCA 353
Court: Court of Criminal Appeal, New South Wales
Date: 28 June 2001
Judge(s): Spigelman CJ, Simpson J, Smart AJ

Background

The respondent, a man of Jordanian extraction who had lived in Australia since 1973, pleaded guilty on the day of trial to soliciting the murder of his 20-year-old niece. The offence arose in August 1998 after the niece left her family home and entered a relationship with a man of Muslim faith, while the family was Christian. The respondent contacted a private investigator to enquire about having her killed, and recorded conversations captured him negotiating a price and confirming the purpose of the engagement.

The District Court imposed a head sentence of four years, five months and twenty-one days, with a non-parole period of eleven months and twenty-one days. Taking into account time already served in pre-sentence custody, the effective head sentence was five years with an effective non-parole period of eighteen months.

The Crown appealed on the ground that the non-parole period was manifestly inadequate, even accepting the head sentence as appropriate.

  • Whether the non-parole period of eleven months and twenty-one days (effective eighteen months) was manifestly inadequate for the offence of soliciting to murder
  • The weight to be given to untested, self-serving statements made by the offender to experts in the course of sentencing proceedings
  • The relevance of restoring community harmony as a consideration in sentencing for offences of this character

Decision

The Court of Criminal Appeal held unanimously that the non-parole period was manifestly inadequate. Smart AJ, delivering the leading judgment, found that the sentencing judge had given excessive weight to subjective considerations and insufficient weight to the objective gravity of the offence and to general deterrence. The recorded conversations left no room for doubt about the respondent's intention and the seriousness of what he had attempted to arrange.

On the question of untested expert evidence, Smart AJ observed that very limited weight should be given to self-serving statements made by an offender to experts, where those statements are not tested in cross-examination. The Court noted the general desirability of a prisoner giving evidence at a sentencing hearing, so that the court can properly assess the factual basis on which mitigation is claimed.

On the question of community harmony, both Simpson J and Smart AJ expressed reservations about treating the restoration of harmony within a particular cultural or ethnic community as a meaningful mitigating factor in a case of this kind. Simpson J warned that giving undue weight to such cultural considerations could have a discriminatory effect, placing some communities in a different position from others when courts impose sentences. The Court drew an analogy with the limited relevance of victim forgiveness in domestic violence matters.

The three judges proposed slightly different increases to the non-parole period. Spigelman CJ favoured an effective non-parole period of two and a half years (an increase of twelve months over the trial judge). Smart AJ proposed three years. Simpson J agreed with Smart AJ's orders. The Court ultimately adopted Smart AJ's proposed orders, fixing a non-parole period of twenty-nine months and twenty-one days.

Orders Made

  • The appeal against the head sentence of four years, five months and twenty-one days was dismissed.
  • The non-parole period of eleven months and twenty-one days was set aside.
  • A non-parole period of twenty-nine months and twenty-one days was fixed, commencing 8 March 2001 and ending 28 August 2003.

Key Takeaways

  • A non-parole period must reflect the objective gravity of the offence and give proper weight to general deterrence; an effective non-parole period of eighteen months for soliciting to murder was found to be manifestly inadequate in the circumstances of this case.
  • Untested, self-serving statements made by an offender to experts in the course of sentencing proceedings carry very limited weight; the Court reinforced the general desirability of the offender giving evidence and being subject to cross-examination where factual matters bearing on mitigation are in dispute.
  • Restoring harmony within a particular cultural or ethnic community is not a straightforwardly accepted mitigating consideration; the Court expressed clear reservations that treating it as such could produce discriminatory sentencing outcomes between different communities.
  • In a Crown appeal against sentence, where the head sentence is accepted as appropriate, the Court of Criminal Appeal may intervene solely to correct a non-parole period that fails to reflect the minimum time an offender must serve before becoming eligible for release.
  • Simpson J noted the parallel with cases on victim forgiveness in domestic violence matters, signalling that cultural or relational context does not automatically reduce the sentencing weight that attaches to serious violence-related offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Keys [2001] NSWCCA 232
- Bednarz [2000] NSWCCA 533
- Murat Ay (unreported, NSWCCA, 30 October 1998)
- R v Carrion (2000) 49 NSWLR 149
- R v Hampton (1998) 44 NSWLR 729
- R v Bloomfield (1998) 44 NSWLR 734
- R v Glen (unreported, NSWCCA, 19 December 1994)
- R v Fahda [1999] NSWCCA 217 (31 August 1999)