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12
Court of Criminal Appeal 26 April 2013

R v Fahda

[2013] NSWCCA 86

Homicide
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MURDER

Citation: R v Fahda [2013] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 26 April 2013
Judges: Simpson J, Fullerton J, Davies J

Background

The respondent was convicted by jury of murder following a shooting in a public car park attached to a shopping complex on a Saturday afternoon. He had encountered the deceased, armed himself with a handgun from his vehicle, approached the deceased's car, and fired 12 shots through the open passenger window at close range. Seven shots struck the deceased, who was seated in his vehicle and had no means of escape. The deceased's wife and children were present and witnessed the shooting.

The trial judge, Harrison J, sentenced the respondent to a non-parole period of 14 years with a head sentence of 20 years. The Crown appealed on the basis that the sentence was manifestly inadequate.

The case arose from a jury trial, meaning there was no agreed statement of facts. Harrison J was required to find facts consistent with the evidence and not inconsistent with the jury's verdicts, which included rejecting defences of self-defence, provocation, and substantial impairment.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence as falling within the mid-range
  • Whether the sentencing judge erred in finding that provocation operated as a mitigating factor under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in assessing the respondent's prospects of rehabilitation
  • Whether the sentencing judge erred in his approach to the respondent's intellectual impairment
  • Whether the sentencing judge erred in his approach to the respondent's mental illness
  • Whether, in light of all grounds, the sentence was manifestly inadequate

Decision

Objective seriousness. The Crown argued that Harrison J erred in placing the offence in the mid-range of objective seriousness, pointing to several highly aggravating features: the use of an unlawfully held handgun, the high number of shots fired, the vulnerability of the deceased, the public location, and the intent to kill. The Court of Criminal Appeal acknowledged these features but found no reviewable error in the sentencing judge's assessment. The absence of planning or premeditation and the spontaneous nature of the shooting were accepted as ameliorating factors, though the Court was careful to note that unpremeditated murder is not automatically below mid-range. Harrison J had not treated the cases cited by defence counsel as establishing any such general proposition.

Provocation as a mitigating factor. Harrison J found that the deceased made threatening remarks to the respondent and that this caused the respondent to lose self-control, accepting provocation as a mitigating circumstance under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999. The Crown challenged the factual basis for this finding. The Court of Criminal Appeal noted that, in the absence of the trial transcript, the Crown faced significant difficulty in establishing that the finding was not open on the evidence. The sentencing judge was in a superior position to assess the facts, and no reviewable error was established.

Intellectual impairment and mental illness. The respondent had a low level of intellectual functioning and a diagnosed mental illness. Harrison J treated these as mitigating factors going to moral culpability and prospects of rehabilitation. The Court found no error in the approach taken, including the judge's reliance on expert evidence and his assessment of the respondent's rehabilitative prospects.

Manifest inadequacy. The Court declined to find the sentence manifestly inadequate. Fullerton J emphasised that appellate intervention on this ground requires the sentence to be unreasonable or plainly unjust, not merely lower than other sentences or different from what the appellate court might have imposed. Statistical data from the Judicial Commission indicated the sentence was towards the lower end of the range, but this alone did not establish error. Simpson J, though expressing considerable hesitation, ultimately agreed that no reviewable error had been demonstrated. Davies J agreed with Fullerton J.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No reviewable error was established in the sentencing judge's assessment of objective seriousness as mid-range, despite numerous aggravating features, where the absence of planning and spontaneous nature of the offence were accepted as ameliorating circumstances.
  • Appellate interference with a sentencing judge's factual findings is significantly constrained where the Crown cannot place the trial transcript before the appellate court, particularly where those findings depend on evidence heard at trial.
  • Under the House v The King principles, an appellate court may only intervene in a sentencing discretion where error of the kind identified in that case is established; the fact that the appellate court might have imposed a heavier sentence is insufficient.
  • A sentence falling towards the lower end of the statistical range for murder does not, without more, demonstrate manifest inadequacy.
  • Intellectual impairment and mental illness, where supported by expert evidence, may legitimately reduce an offender's moral culpability and inform the assessment of rehabilitation prospects in sentencing for serious offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 23, 23A and Part 11, Division 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(c)
- Criminal Appeal Act 1912 (NSW)
- Firearms Act 1996 (NSW)

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Mulato v R [2006] NSWCCA 282
- Koloamatangi [2011] NSWCCA 288
- Nguyen v R [2007] NSWCCA 363; 180 A Crim R 267
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Engert (1995) 84 A Crim R 67
- Bugmy v R [1990] HCA 18; 169 CLR 525
- Beldon v R [2012] NSWCCA 194
- Hanania v R [2012] NSWCCA 220
- Devaney v R [2012] NSWCCA 285
- R v George [2004] NSWCCA 247; 149 A Crim R 38
- Ng v R [2011] NSWCCA 227; 214 A Crim R 191
- Fardon v Attorney-General (Qld) [2004] HCA 46; 223 CLR 575