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Supreme Court 18 March 2014

R v Hadchiti (No 3)

[2014] NSWSC 257

Homicide
CRIMINAL LAW SENTENCE MURDER SERIOUS OFFENCE OBJECTIVE SERIOUSNESS HIGH MORAL CULPABILITY

Citation: R v Hadchiti (No 3) [2014] NSWSC 257
Court: Supreme Court of New South Wales
Date: 18 March 2014
Judge(s): Schmidt J

Background

The offender was convicted by jury on 13 November 2013 of the murder of his sister's boyfriend, who was fatally stabbed shortly after entering the front yard of the offender's home. At trial, the offender claimed self-defence, giving evidence that the deceased had attacked him with a knife after he intervened to protect his mother. The jury rejected that account.

The Crown's case was circumstantial. It alleged that the deceased was ambushed and fatally wounded by the offender acting with others, and that a subsequent conspiracy sought to conceal the circumstances of the death. That conspiracy allegedly extended to influencing a key witness, the offender's sister, to depart at trial from accounts she had previously given to police and at the committal hearing.

At the sentencing hearing, the central dispute between the parties was the objective seriousness of the offence. The Crown contended the offence fell above the mid-range; the offender argued otherwise. Other matters in contest included whether remorse and prospects of rehabilitation had been established, and whether special circumstances existed to justify departing from the standard sentencing ratio.

  • Where on the spectrum of objective seriousness did the murder fall, and what role did planning and use of a weapon play in that assessment?
  • Whether life imprisonment was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How the standard non-parole period of 20 years for murder (representing the mid-range of objective seriousness) should bear on the sentence
  • Whether remorse and prospects of rehabilitation and non-reoffending had been established in the offender's favour
  • Whether special circumstances existed to justify altering the statutory ratio between the non-parole period and the balance of term

Decision

Schmidt J found that life imprisonment was not warranted. The Crown did not seek that outcome and the court accepted, notwithstanding the obvious seriousness of the offence, that the circumstances did not reach the extreme level required by s 61(1) of the Crimes (Sentencing Procedure) Act.

The court found the offence to be a serious one, falling above the mid-range of objective seriousness for murder. Relevant aggravating factors included planning, the use of a weapon, and that the offence was committed in company. The subsequent attempts to conceal the circumstances of the killing and to interfere with witness evidence also informed the court's assessment of moral culpability.

On mitigating factors, the offender had no prior criminal record and had been of prior good character. However, the court was not satisfied that remorse or genuine prospects of rehabilitation and non-reoffending had been established. The court noted that the offender had maintained his self-defence account throughout and that this could not be reconciled with accepting responsibility for the killing.

No special circumstances were found to justify departing from the statutory one-third ratio between the balance of term and the non-parole period. Applying the instinctive synthesis required by Markarian v The Queen and the framework in Muldrock v The Queen, Schmidt J imposed a total sentence of 29 years imprisonment, with a non-parole period of 21 years and 9 months.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • A total term of imprisonment of 29 years was imposed, commencing 14 October 2013 and expiring 13 October 2042.
  • Non-parole period of 21 years and 9 months, commencing 14 October 2013 and expiring 13 July 2035.
  • Balance of term of 7 years and 3 months, commencing 14 July 2035 and expiring 13 October 2042.
  • The earliest date of eligibility for release on parole is 13 July 2035.

Key Takeaways

  • The Supreme Court confirmed that life imprisonment under s 61(1) of the Crimes (Sentencing Procedure) Act is reserved for cases where culpability is so extreme that only that sentence can meet the community interest in retribution, punishment, protection, and deterrence. The Crown bears the onus of establishing that threshold.
  • A standard non-parole period of 20 years represents the mid-range of objective seriousness for murder, and both the standard non-parole period and the maximum penalty of life imprisonment must be brought to account in the sentencing exercise, as confirmed in Muldrock v The Queen.
  • Where an offender maintains a self-defence account through to and including the sentencing hearing, a court may find that remorse and acceptance of responsibility have not been established as mitigating factors, even in the absence of prior convictions and despite evidence of prior good character.
  • Planning, the use of a weapon, and commission of a murder in company each operate as statutory aggravating factors capable of elevating the objective seriousness of an offence above the mid-range.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act, the balance of term must not exceed one-third of the non-parole period unless special circumstances are established. Any reduction to the non-parole period resulting from such a finding must not bring it below the minimum term justice requires: Power v The Queen.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44(2), 54A, 54B, 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5E, 5F, 5G
- Evidence Act 1995 (NSW), ss 4, 38, 128

Cases
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Munda v Western Australia [2013] HCA 38; (2013) 302 ALR 207
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Dodd (1991) 57 A Crim R 349
- R v Lewis [2001] NSWCCA 448
- R v Scott [2005] NSWCCA 152
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270