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Supreme Court 29 June 2012

R v Fadi Shamoun

[2012] NSWSC 716

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER WHETHER OFFENDER ACTED FOR REWARD WHETHER SPECIAL CIRCUMSTANCES MALICIOUS WOUNDING

Citation: R v Fadi Shamoun [2012] NSWSC 716
Court: Supreme Court of New South Wales
Date: 29 June 2012
Judge: Bellew J

Background

Following a jury trial, the offender was convicted of the murder of Richard Carruthers and the malicious wounding of Phuong Carruthers at Castle Hill on 24 June 2007. The offences occurred at a residential premises, where both victims were asleep at the time of the attack. The offender used a knife.

The Crown's principal witness, referred to as David Saad, had originally been charged with the murder before being indemnified. At the time of sentencing, the offender also faced a separate pending District Court trial arising from an unrelated incident at Kings Cross approximately two weeks after the murder.

The sentencing proceedings raised several contested issues, including the offender's state of mind at the time of the murder, whether he had acted for reward, and the relevance of a diagnosed brain injury to general deterrence.

  • Whether the offender intended to kill the deceased or merely intended to inflict grievous bodily harm
  • Whether the offender acted for financial reward in committing the murder
  • Whether a brain injury suffered by the offender reduced the weight to be given to general deterrence
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • Whether the Crown's application to adjourn sentencing pending the outcome of the Kings Cross trial should be granted
  • Whether partial accumulation of the sentences for murder and malicious wounding was appropriate

Decision

Bellew J refused the Crown's application to adjourn sentencing until the conclusion of the offender's pending Kings Cross trial. The judge accepted that a subsequent conviction could theoretically bear on sentencing, but held that the offender was entitled to know the outcome of the present proceedings without further delay, given that the offences occurred more than five years earlier and the verdicts had been returned three months prior. The judge also noted that expert evidence already before the court had addressed the offender's dangerousness with reference to the Kings Cross incident in any event.

On the question of a life sentence, Bellew J was satisfied that the level of culpability did not reach the extreme threshold required under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, a position the Crown itself accepted. The sentencing exercise proceeded by identifying all relevant aggravating and mitigating factors, consistent with the High Court's approach in Muldrock v R, rather than treating the standard non-parole period as a mandatory starting point.

The judge acknowledged the serious and violent nature of the murder, including that the victims were asleep and vulnerable at the time of the attack. Various contested factors, including intention, reward, the brain injury, and special circumstances, were considered in arriving at the overall sentence. On accumulation, both parties agreed that some degree of partial accumulation was appropriate to reflect that the malicious wounding was committed against a separate victim, and Bellew J ordered an accumulation of three months.

Victim impact statements were received from five family members and read to the court, but the judge confirmed they could not be taken into account in determining the sentence, consistent with established authority under s 28(4)(b) of the Sentencing Act.

Orders Made

  • Murder (Richard Carruthers): Non-parole period of 20 years commencing 4 June 2009, expiring 3 June 2029; additional term of 7 years expiring 3 June 2036; total term of 27 years imprisonment.
  • Malicious wounding (Phuong Carruthers): Non-parole period of 9 months commencing 4 June 2009, expiring 3 March 2010; additional term of 3 months expiring 3 June 2010; total term of 12 months imprisonment.
  • Total non-parole period: 20 years and 3 months, commencing 4 June 2009 and expiring 3 September 2029.
  • Eligible for parole release on 4 September 2029; sentence expires 3 June 2036.
  • Both sentences backdated to 4 June 2009, the date of the offender's arrest.

Key Takeaways

  • A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires the court to be satisfied that the culpability is so extreme that retribution, punishment, community protection, and deterrence can only be met through that sentence; absent that threshold, it is not imposed.
  • Under the approach confirmed in Muldrock v R, sentencing courts are not required to commence by asking whether there are reasons to depart from the standard non-parole period, nor to determine whether the offence sits in the mid-range of objective seriousness. The court must instead weigh all relevant factors together.
  • Victim impact statements are received and acknowledged by the court, but s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1999 precludes their use in determining the actual sentence, as confirmed in R v Previtera and R v Bollen.
  • Where an offender faces a pending trial for a separate offence committed after the index offences, a sentencing court may decline to adjourn proceedings where the offender has a legitimate interest in finality, expert evidence has already addressed dangerousness, and the alleged subsequent conduct is less serious than the offences being sentenced.
  • Partial accumulation of sentences is appropriate where offences are committed against separate victims, even within the same episode; the totality principle, as stated in Pearce v R, requires the overall sentence to reflect the full criminality without being disproportionate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28(4)(b), 54A, 54B(2), 54B(3), 61(1)
- Evidence Act 1995 (NSW), ss 97, 98

Cases
- Muldrock v R (2011) 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- R v Bollen (1998) 99 A Crim R 510
- R v Carter [2003] NSWCCA 243
- R v Fidow [2004] NSWCCA 172
- R v Henry (1999) 46 NSWLR 346
- R v Isaacs (1997) 41 NSWLR 374
- R v MAK; R v MSK (2006) 167 A Crim R 195
- R v Presser [1958] VR 45
- R v Previtera (1997) 94 A Crim R 76
- R v Simpson (2001) 53 NSWLR 704
- Markarian v R (2005) 228 CLR 357