AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Supreme Court 13 May 2020

R v Tangi (No 12)

[2020] NSWSC 547

Homicide
CRIME SENTENCE MURDER PRISONER MURDERED FELLOW INMATE PLANNING ASSESSMENT OF OBJECTIVE SERIOUSNESS

Citation: R v Tangi (No 12) [2020] NSWSC 547
Court: Supreme Court of New South Wales
Date: 13 May 2020
Judge: Rothman J

Background

The offender, a New Zealand citizen of Islander descent aged 28 at the time of the offence, was convicted by jury of the murder of a fellow inmate at the John Morony Correctional Complex. The victim, a 24-year-old man of Middle Eastern background, was significantly smaller and lighter than the offender. The assault occurred on 19 June 2017, and the victim died from his injuries on 29 June 2017.

The killing arose from a dispute over authority and status within the prison unit. The offender held the position of Head Sweeper at Archerfield House, and the conflict appears to have stemmed from the victim challenging that authority. An oral argument began on or about 18 June 2017 and continued until the day of the fatal assault.

The offender lured the victim into his cell under the pretence of a prearranged meeting. A fellow inmate stood outside and held the cell door closed. The offender stomped on the victim's head at least once, probably twice, and once on the shoulder, causing catastrophic head injuries. The jury convicted on the basis that the offender intended to cause grievous bodily harm.

  • What was the objective seriousness of the murder, having regard to the degree of planning and the circumstances of the assault?
  • Whether the planning of the assault extended to the intention to cause grievous bodily harm, and whether that could be treated as an aggravating factor.
  • What weight should be given to the offender's subjective circumstances, criminal history, and prospects of rehabilitation?
  • What head sentence and non-parole period were appropriate, and how should questions of totality be resolved in light of an existing sentence?

Decision

Rothman J found that the assault was planned in a meaningful sense: the offender had prearranged the meeting with the victim, organised other inmates to prevent entry to the cell, and had been visibly angry in the hours beforehand. The court accepted that the confrontation and the assault were premeditated. However, the court could not be satisfied beyond reasonable doubt that the intention to cause grievous bodily harm was itself planned, rather than arising opportunistically from the escalating confrontation inside the cell. On that basis, the planning of the grievous bodily harm was not treated as an aggravating factor. The planning of the assault itself was still treated as aggravating the murder.

On objective seriousness, the court assessed the offence as serious. Relevant features included the significant physical disparity between the offender and the victim, the deliberate entrapment of the victim in the cell, the involvement of other inmates to prevent interference, and the nature of the injuries inflicted. The court acknowledged the context of prison violence and racial tension but did not treat that context as mitigating.

On subjective matters, the offender had prior convictions for assault occasioning actual bodily harm and domestic violence offences, for which he had received both a bond and a term of imprisonment. There was no expression of remorse. Prospects of rehabilitation were assessed as limited, though not entirely absent. The offender's visa had been cancelled and he was an unlawful non-citizen at the time of the offence.

On totality, the court considered the relationship between the current sentence and the offender's existing non-parole period. Rothman J declined to make the sentences fully cumulative, but directed that one year and one month of the prior non-parole period would accumulate onto the current sentence to reflect the additional criminality of the murder.

Orders Made

  • The offender was convicted of the murder of Zaydoun Al-Qaseer on 29 June 2017 at the John Morony Correctional Complex.
  • Sentenced to a non-parole period of 22 years and 6 months, commencing 8 July 2017 and concluding 7 January 2040.
  • Remainder of term of 7 years and 6 months, concluding 7 July 2047 (total head sentence of 30 years).
  • First eligible for parole on 7 January 2040.
  • The offender was warned that, as a person convicted of a serious violence offence, the State may apply for an order under the Crimes (High Risk Offenders) Act 2006 (NSW) before the sentence expires.

Key Takeaways

  • Planning of an assault can be treated as aggravating the murder even where the specific intention to cause grievous bodily harm could not be established as planned beyond reasonable doubt.
  • Under the standard applied in this case, the prosecution must establish beyond reasonable doubt that a particular feature of the offence warrants aggravation before that feature is used adversely against the offender in sentencing.
  • The Supreme Court declined to find special circumstances, holding that the 7 years and 6 months on parole was sufficient time for community-based rehabilitation and supervision.
  • Totality principles did not require the sentence to run fully concurrently with the prior non-parole period where the murder represented meaningfully additional and distinct criminality.
  • Absence of remorse, prior convictions for violence, and the calculated entrapment of a physically weaker victim in a closed cell were all treated as relevant to the assessment of a serious, above-midrange sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (definition of murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14