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Supreme Court 17 February 2023

R v Ahmed (No 2)

[2023] NSWSC 105

HomicideDomestic & family violence
CRIME SENTENCE MURDER WIFE STABBED WITH A KNIFE IN HOME MULTIPLE STAB WOUNDS CONVICTION FOLLOWING JURY TRIAL

Citation: R v Ahmed (No 2) [2023] NSWSC 105
Court: Supreme Court of New South Wales
Date: 17 February 2023
Judge(s): N Adams J

Background

In February 2017, the offender stabbed his wife fourteen times in their home, killing her. He had discovered romantic text messages between his wife and a former friend, and his wife had indicated she wished to leave the marriage. The offender made full admissions to police on the night of the killing, explaining that he had become enraged upon seeing those messages.

The offender offered early pleas of guilty to manslaughter on the basis of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). Expert opinion on that question was divided: one psychiatrist supported the partial defence, while the Crown's expert concluded the offender was not substantially impaired. The Crown declined to accept the manslaughter plea, and the matter proceeded to trial.

At a judge-alone trial in 2019, Schmidt J convicted the offender of murder and sentenced him to 27 years' imprisonment with a non-parole period of 20 years and 3 months. The Court of Criminal Appeal later allowed an appeal against conviction on the ground of an inadequate direction regarding the offender's failure to give evidence, and a new trial was ordered. A jury at the retrial unanimously convicted the offender of murder again in October 2022. The matter then came before Adams J for resentencing.

  • Whether the offender was substantially impaired by an abnormality of mind at the time of the killing, so as to reduce the objective gravity of the offence for sentencing purposes
  • What weight to give the offender's early facilitation of justice, his admissions to police, and his remorse
  • Whether the "ceiling principle" applied to cap the sentence at or below the term imposed after the first trial
  • Whether special circumstances existed justifying an adjustment to the standard ratio between the non-parole period and the balance of term

Decision

Adams J found that, while the offender had been suffering from an adjustment disorder arising from the breakdown of his marriage, he was not substantially impaired within the meaning of s 23A at the time of the killing. His Honour accepted that the offender "flew into a jealous rage" rather than acting from a substantially impaired capacity to control his actions. The offence was not premeditated in a planning sense, but the circumstances immediately surrounding the killing, including the offender's conduct in the period while his wife lay dying, were seriously aggravating.

The court took into account as mitigating factors the offender's early and consistent admissions to police, his offer to plead guilty to manslaughter at the first opportunity, his cooperation with authorities, and the evidence of genuine remorse. These factors had some weight in reducing the sentence below what it might otherwise have been, though they could not substantially diminish the gravity of a sustained, frenzied fatal attack on a domestic partner.

The ceiling principle applied because the offender was being sentenced following a retrial. Under that principle, an offender convicted after a retrial should not ordinarily receive a longer sentence or non-parole period than that imposed at first instance. The prior sentence of 27 years (non-parole period of 20 years and 3 months) therefore operated as the ceiling. The court also took into account the impact of the COVID-19 pandemic on conditions in custody as a further basis for modest amelioration of the head sentence.

On the question of special circumstances, the court declined to make a finding that would significantly alter the statutory ratio between the non-parole period and the balance of term. His Honour was satisfied that the factors advanced on the offender's behalf were sufficiently addressed within the proposed parole period, and that the non-parole period needed to reflect the objective gravity of the offence and the demands of general deterrence.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to imprisonment for a term of 24 years, commencing 18 February 2017 and expiring 17 February 2041.
  • Non-parole period of 18 years, commencing 18 February 2017 and expiring 17 February 2035.
  • The offender's solicitor was asked to advise the offender of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), the offence being a "serious violence offence."

Key Takeaways

  • The ceiling principle, confirmed in R H McL v The Queen (2000) 203 CLR 452, constrains sentencing on retrial so that the offender does not ordinarily receive a longer sentence or non-parole period than that imposed at the first trial.
  • A diagnosis of adjustment disorder does not automatically satisfy the substantial impairment partial defence under s 23A of the Crimes Act 1900 (NSW); the court must be satisfied that the abnormality of mind substantially impaired the offender's capacity to understand events, judge whether actions were right or wrong, or control conduct.
  • Early admissions, facilitation of justice, and consistent expressions of remorse were recognised as mitigating factors, though their effect was limited in the context of a sustained and fatal domestic attack.
  • Where special circumstances are claimed to justify departing from the standard non-parole ratio, the sentencing court's discretion remains constrained by the need for the non-parole period to reflect the objective gravity of the offence and general deterrence.
  • Conditions of custody during the COVID-19 pandemic were treated as a relevant consideration in moderating the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 23A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30E(1), 30E(3), 47(3), Table to Division 1A of Part 4

Cases:
- Ahmed v R [2021] NSWCCA 280
- Butters v R [2010] NSWCCA 1
- DH v R [2022] NSWCCA 200
- DS v R; DM v R [2022] NSWCCA 156
- KM v R [2023] NSWCCA 10
- Lechmana v R [2019] NSWCCA 112
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Pritchard v R [2022] NSWCCA 130
- R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
- R v Ahmed (No 2) [2019] NSWSC 517
- R v Ahmed (No 3) [2019] NSWSC 625
- R v Halloun [2014] NSWSC 1705
- R v Haydar (No 4) [2017] NSWSC 615
- R v Isaacs (1997) 41 NSWLR 374
- R v Latu (No 3) [2019] NSWSC 951
- R v Lechmana [2010] NSWSC 849
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Sumpton [2016] NSWCCA 162