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Supreme Court 24 February 2012

R v Mohammed Fahda

[2012] NSWSC 114

HomicideFirearms & weapons
CRIMINAL LAW SENTENCE MURDER OFFENDER WITH LONG CHANCE MEETING WITH VICTIM WHERE OFFENDER IN SEGREGATION

Citation: R v Mohammed Fahda [2012] NSWSC 114
Court: Supreme Court of New South Wales
Date: 24 February 2012
Judge: Harrison J

Background

The offender was convicted by jury of the murder of Abdul Darwiche, which occurred on 14 March 2009 at a service station and shopping complex at Bass Hill. The offender shot the victim seven times through the passenger window of the victim's vehicle, firing his semi-automatic pistol a total of 12 times. The victim died at the scene. The two men had come from families with a documented history of violent enmity, including murders and shootings involving the Fahda, Razzak and Darwiche families between 2001 and 2004.

The offender's brother had been shot and killed at a service station in 2003, and a member of the Darwiche family was charged (though subsequently acquitted) in connection with that murder. The offender was 21 years old at the time of the killing and 24 at the time of trial.

The offender had a long and serious psychiatric history, including longstanding paranoid psychosis, auditory hallucinations, below-average intelligence, a severely disrupted childhood, a history of trauma and sexual abuse, cocaine dependency from age 16, and no adequate mental health support in the period leading up to the offence. These subjective circumstances were central to the sentencing exercise.

  • What sentence is appropriate for murder, having regard to the objective seriousness of the offence?
  • To what extent does the offender's serious and longstanding mental illness reduce his moral culpability and affect the weight given to general deterrence?
  • What weight should be given to the onerous conditions of the offender's incarceration, including segregation for his own protection?
  • Whether special circumstances existed justifying a non-parole period that departs from the standard ratio.
  • What credit, if any, should be given for the offender's expressions of remorse, given that he pleaded not guilty at trial?

Decision

Harrison J assessed the objective seriousness of the offence at above the mid-range. The killing was premeditated, carried out in a public place in broad daylight, and involved a firearm. The presence of family enmity and the circumstances surrounding the victim's death left no doubt this was a deliberate, planned act of lethal violence.

However, the court placed significant weight on the offender's psychiatric condition. The offender had been suffering from paranoid psychosis for years before the offence, with auditory hallucinations, paranoid ideation, and ideas of reference, all substantially worsened by his brother's murder in 2003 and his own stabbing while in custody in 2007 to 2008. The court found that while his mental illness did not negate criminal responsibility, it substantially reduced his moral culpability and diminished the weight properly accorded to general deterrence in sentencing.

The particularly onerous conditions of the offender's imprisonment also received significant weight. The offender was being held in segregation because he was incarcerated in the same system as members of, or associates of, rival families. The court was satisfied that these conditions made his imprisonment unusually and particularly burdensome, and that his psychiatric problems would further compound those difficulties.

The court found special circumstances, noting the offender's need for intensive and ongoing psychiatric treatment, his low intelligence, and his limited educational and vocational background. These factors indicated a need for a longer than usual supervision period upon release. The court gave only limited weight to remorse, observing that the offender's letter of apology had a self-interested tone and had to be assessed against the backdrop of his not guilty plea, albeit acknowledging his low intelligence and reduced insight.

Orders Made

  • The offender was sentenced to 20 years imprisonment for the murder of Abdul Darwiche.
  • Non-parole period of 14 years, commencing 28 September 2009, expiring 27 September 2023.
  • Balance of term of 6 years, commencing 28 September 2023, expiring 27 September 2029.
  • First eligible date for release on parole: 28 September 2023.

Key Takeaways

  • Where an offender has a longstanding and serious mental illness that, while not negating criminal responsibility, substantially affects their capacity to reason and their understanding of events, the sentencing court will reduce the weight given to general deterrence accordingly.
  • Onerous custodial conditions, including segregation necessitated by the risk of violence from rival groups within the prison system, are a legitimate and potentially significant mitigating consideration at sentencing.
  • Special circumstances can be established by a combination of factors including serious psychiatric illness, low intelligence, and limited educational and vocational background, each of which bears on the offender's need for supervision upon eventual release.
  • Remorse expressed in a letter must be weighed against the totality of the offender's conduct, including a not guilty plea, though an offender's low intelligence and diminished insight may affect how much weight is placed on apparent inconsistencies in those expressions.
  • The Supreme Court treated the intersecting background of interfamily violence, including the prior murder of the offender's brother, as directly relevant to understanding the context of the offence and the development of the offender's paranoid illness, without treating that background as justification or excuse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Lewis v R [2011] NSWCCA 206
- 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 Bell (1985) 2 NSWLR 466
- R v Bollen (1998) 99 A Crim R 510
- R v Borg [2010] NSWSC 951
- R v Cooper [2005] NSWSC 791
- 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 Anderson (1980) 2 A Crim R 379
- R v Garforth (unreported, NSWCCA, 23 May 1994)