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Supreme Court 30 May 2019

R v Ahmed (No 3)

[2019] NSWSC 625

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MURDER JUDGE ALONE TRIAL OBJECTIVE SERIOUSNESS ABOVE MID RANGE

Citation: R v Ahmed (No 3) [2019] NSWSC 625
Court: Supreme Court of New South Wales
Date: 30 May 2019
Judge: Schmidt J

Background

The offender was convicted of murdering his wife on 18 February 2017 following a judge alone trial. The conviction, recorded in R v Ahmed (No 2) [2019] NSWSC 517, followed findings that the offender had stabbed the deceased 14 times and then deliberately delayed calling emergency services until after she had stopped breathing.

At trial, the offender sought to rely on the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW), which, if established, would have reduced the conviction to manslaughter. Schmidt J rejected that defence, finding beyond reasonable doubt that the offender had deliberately acted on an intention to kill after discovering text messages on his wife's phone. The offender had never denied the killing itself, and had offered to plead guilty to manslaughter, but that offer was not accepted by the Crown.

This judgment addresses the sentencing exercise that followed the murder conviction.

  • Whether the offence fell above, at, or below the mid-range of objective seriousness for murder, by reference to the standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the offender's mental condition reduced his moral culpability
  • Whether the offender was entitled to any reduction in sentence, given he had not pleaded guilty to murder but had made admissions that facilitated the administration of justice and shortened the trial
  • Whether special circumstances existed to justify departing from the standard one-third ratio between the non-parole period and the balance of term
  • Whether a life sentence was warranted under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The relevance and weight to be given to the victim impact statement

Decision

Schmidt J concluded that the offence did not warrant a life sentence. The Crown did not seek to establish that the offender's culpability was so extreme as to satisfy s 61(1) of the Crimes (Sentencing Procedure) Act, and the evidence supported that conclusion.

The objective seriousness of the offence was assessed as above the mid-range for murder. The findings from the conviction judgment were central: the offender had formed a deliberate intention to kill and had acted on it, rather than suffering from a genuinely impaired capacity to control himself. The delayed call to emergency services after the victim had stopped breathing further contributed to the assessment of seriousness. Consistent with the principle in Munda v Western Australia (2013) 249 CLR 600, the court gave due weight to the need for denunciation and punishment in cases of domestic violence homicide, recognising the human dignity of the victim.

On moral culpability, Schmidt J acknowledged the offender's mental condition as a relevant consideration but declined to treat it as substantially reducing culpability, given the finding that the offender had acted deliberately. The offender received a limited sentencing benefit for his admissions and cooperation, which had shortened the trial, though not the full utilitarian discount that would have attached to a guilty plea to the charge on which he was convicted. No special circumstances were found to justify departing from the standard non-parole period ratio.

The court also noted the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), which classifies murder as a serious violence offence. This means the State may apply in the future for orders for extended supervision or continuing detention if the offender is found to pose an unacceptable risk at the conclusion of his sentence.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 20 years and 3 months, commencing 18 February 2017 and expiring 17 May 2037.
  • The balance of term was 6 years and 9 months, expiring 17 February 2044.
  • The total term of imprisonment is 27 years.
  • The earliest date of eligibility for release on parole is 17 May 2037.

Key Takeaways

  • Schmidt J applied the instinctive synthesis approach confirmed in Markarian v The Queen (2005) 228 CLR 357, weighing all relevant factors together rather than mechanically applying a numerical formula.
  • Under the Crimes (Sentencing Procedure) Act, a life sentence for murder is reserved for cases where culpability is so extreme that only that sentence can satisfy the community's interests in retribution, punishment, protection, and deterrence. The Crown bears the burden of establishing that threshold, and did not attempt to do so here.
  • A finding that an offender deliberately intended to kill, rather than having a genuinely impaired capacity to control his actions, is a significant factor in placing the offence above the mid-range of objective seriousness.
  • Where an offender does not plead guilty to the charge on which they are convicted but their admissions and agreed facts demonstrably shortened the trial, the court may still allow a lesser penalty than would otherwise apply under s 21A(3)(l) and s 23 of the Crimes (Sentencing Procedure) Act, even without a full utilitarian discount.
  • Murder falls within the definition of a "serious violence offence" under the Crimes (High Risk Offenders) Act 2006 (NSW), meaning that post-sentence supervision or detention orders remain a possibility regardless of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 19A, 23A
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 5B, 5C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 23, 28, 44, 54A, 54B, 61

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- R v Ahmed (No 2) [2019] NSWSC 517
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Haydar (No 3) [2017] NSWSC 159; R v Haydar (No 4) [2017] NSWSC 615
- R v Bretherton [2013] NSWSC 1339
- Aslan v R [2014] NSWCCA 114
- Cherry v R [2017] NSWCCA 150
- Imbornone v R [2017] NSWCCA 144
- Kaderavek v R [2018] NSWCCA 92
- Patsan v R [2018] NSWCCA 129
- Johnson v R [2016] NSWCCA 286
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194