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Supreme Court 13 March 2014

R v FAZAH

[2014] NSWSC 231

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCE SPONTANEOUS ATTACKS PTSD AND OTHER PSYCHOLOGICAL DEFECTS

Citation: R v Fazah [2014] NSWSC 231
Court: Supreme Court of New South Wales
Date: 13 March 2014
Judge(s): Hidden J

Background

The offender, an Afghan-born Australian citizen, pleaded guilty to murdering his two-year-old daughter and wounding his wife with intent to cause her grievous bodily harm. Both offences occurred during a single incident at the family's home unit in Canley Vale on 1 January 2011. The Crown accepted the plea to wounding with intent to cause grievous bodily harm in satisfaction of an original charge of wounding with intent to murder.

The relationship between the offender and his wife had a history of domestic violence and controlling behaviour. On the day of the offences, an argument escalated when his wife attempted to leave the unit with their daughter to visit a neighbour. The offender punched his wife, locked the door, and then chased her down a stairwell with a kitchen knife, stabbing her multiple times. He then returned to the unit and inflicted fatal stab wounds upon the child before stabbing himself.

The offender's background included significant trauma. He had been captured and tortured by the Taliban in Afghanistan, an experience that formed part of the basis for evidence of post-traumatic stress disorder (PTSD) and other psychological conditions, which the court took into account during sentencing.

  • What weight should be given to the offender's psychiatric history, including PTSD arising from war trauma and torture, as a mitigating factor in sentencing?
  • How should the standard non-parole periods for murder and wounding with intent apply under the Muldrock framework, given the significant mitigating factors present?
  • What discount, if any, should be applied to the sentences to reflect the utilitarian value of the guilty pleas?
  • To what extent should the sentences be accumulated to reflect the distinct criminality of the two offences?

Decision

Hidden J accepted that the offender's background, including his exposure to war in Afghanistan and his capture and torture by the Taliban, contributed to PTSD and other psychological deficits. These factors bore on the assessment of his moral culpability and constituted significant mitigating circumstances, though they could not displace the gravity of the offences. The attacks were described as spontaneous rather than premeditated.

The court applied the approach in Muldrock v The Queen, treating the standard non-parole periods as guideposts rather than fixed benchmarks. The murder carried a standard non-parole period of 25 years and a maximum of life imprisonment. The wounding with intent offence carried a standard non-parole period of 7 years and a maximum of 25 years. His Honour found that the combination of mitigating factors, particularly the psychological evidence, justified fixing non-parole periods well below the statutory standard in each case.

The guilty pleas attracted a sentencing discount, though Hidden J declined to express it as a percentage. For the murder, the court reduced what would otherwise have been a sentence of approximately 30 years to 24 years. For wounding with intent, a notional sentence of 9 years was reduced to 7 years. The court noted that any greater reduction would produce a sentence inadequate to reflect the seriousness of the crimes.

Partial accumulation of the sentences was imposed to reflect that the two offences, while arising from the same incident, involved distinct criminal acts against two separate victims. The sentences were accumulated by 2 years, producing an aggregate of 26 years with an effective non-parole period of 20 years.

Orders Made

  • For wounding with intent to cause grievous bodily harm: non-parole period of 5 years commencing 1 January 2011 and expiring 31 December 2015, with a balance of term of 2 years expiring 31 December 2017.
  • For murder: non-parole period of 18 years commencing 1 January 2013 and expiring 31 December 2030, with a balance of term of 6 years expiring 31 December 2036.
  • Earliest eligibility for release on parole: 31 December 2030.
  • Aggregate sentence to expire: 31 December 2036.

Key Takeaways

  • Severe psychiatric conditions arising from wartime trauma and torture, including PTSD, can constitute significant mitigating factors in sentencing for serious violent offences, though they do not override the objective gravity of murder and intentional wounding.
  • Under the Muldrock framework, standard non-parole periods operate as legislative guideposts; where strong mitigating factors exist, a sentencing court may fix non-parole periods substantially below those guideposts without error.
  • A guilty plea discount need not be expressed as a fixed percentage; Hidden J calibrated the reduction by reference to what sentence would remain adequate to reflect the overall criminality of the offending.
  • Where a single violent incident produces offences against more than one victim, partial accumulation of sentences may be necessary to ensure each offence is properly reflected in the total sentence, even when the offences are closely connected in time.
  • The Supreme Court declined to find special circumstances justifying departure from the statutory non-parole proportion, concluding that the existing parole eligibility period of 6 years was sufficient and that any further reduction would not adequately reflect the offender's criminality.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Cases:
- Muldrock v The Queen [2011] HCA 39, 244 CLR 120