Citation: R v Hossain [2023] NSWSC 1621
Court: Supreme Court of New South Wales
Date: 19 December 2023
Judge: Chen J
Background
The offender, a man in his early fifties, murdered his wife in the garage of their family home in Minto in the early hours of 21 April 2019. The attack was of extreme ferocity: the offender stabbed her more than 80 times with a kitchen knife. The couple's two children, aged 9 and 7 at the time, were in the home but did not witness the killing.
The relationship had been troubled. Two days before the killing, the offender told his wife's brother by telephone that he could not tolerate her, that thoughts of killing her came to him when he was angry, and that "something can happen any time." The offender pleaded guilty to murder at the first opportunity.
The sentencing proceedings required the court to resolve several contested factual issues before determining the appropriate sentence, including whether the killing was premeditated and whether the offender's mental health had a bearing on his culpability.
Legal Issues
- Whether the murder was premeditated, such that planning could be treated as an aggravating factor
- Whether the offender had displayed anger and controlling behaviour toward the deceased throughout the relationship
- What weight to assign to the offender's claimed mental health and cognitive impairment
- Whether those conditions reduced his moral culpability or his capacity for self-control
- Whether a 25% guilty plea discount was appropriate
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio
- What the appropriate head sentence and non-parole period were, having regard to all sentencing factors
Decision
Contested factual findings. Chen J declined to find that the murder was premeditated. Although the telephone conversation with the victim's brother two days earlier was alarming, it did not establish beyond reasonable doubt that the offender had formed and resolved upon a plan to kill. The standard for adverse factual findings in sentencing is proof beyond reasonable doubt, following R v Olbrich. The court similarly declined to find that the offender had displayed a pattern of anger and controlling behaviour across the whole relationship, as the agreed facts did not sufficiently support that conclusion and the underlying material in an expert report had not been admitted into evidence.
Mental health and moral culpability. The offender raised mental health and cognitive impairment as mitigating factors. Chen J accepted that these conditions had some relevance but did not treat them as substantially reducing the offender's moral culpability. The court was required to balance any diminution in culpability arising from those conditions against the gravity of the offence, the vulnerability of the victim in her own home, and the very high number of stab wounds inflicted.
Guilty plea. The offender received a 25% discount on his sentence for pleading guilty at the first reasonable opportunity. Absent that plea, Chen J indicated the sentence would have been 26 years' imprisonment.
Special circumstances. The offender sought a finding of special circumstances to justify a longer parole period relative to the non-parole period. The court refused that application. Chen J considered that the available period of supervision under the sentence as structured was sufficient to facilitate rehabilitation, and that reducing the non-parole period further would produce a disproportionately lenient result.
Orders Made
- The offender is convicted of the murder of the deceased.
- A sentence of imprisonment is imposed consisting of a non-parole period of 14 years and 7 months, commencing 21 April 2019, and a head sentence of 19 years and 6 months.
- The offender becomes eligible for parole on 20 November 2033; the sentence expires on 20 October 2038.
- The sentence reflects a 25% discount for the guilty plea.
- Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised that Act applies to him and to this offence.
- Pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the offence is to be recorded on the offender's criminal record as a domestic violence offence.
Key Takeaways
- An adverse factual finding at sentencing, such as premeditation, must be established by the Crown beyond reasonable doubt; alarming pre-offence statements alone may not meet that threshold.
- Mental health and cognitive impairment can be raised as mitigating factors in murder sentencing, but their weight may be substantially reduced where the objective gravity of the offence is extreme.
- A 25% guilty plea discount applied where the offender entered his plea at the first reasonable opportunity, reducing what would otherwise have been a 26-year head sentence to 19 years and 6 months.
- Refusal of special circumstances was grounded in the court's assessment that the existing supervision period was adequate and a shorter non-parole period would be disproportionately lenient given the circumstances of the offending.
- The offence was recorded as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and the court flagged the potential application of the high-risk offenders regime.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12(2)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Ahmad v R [2021] NSWCCA 30
- Khan v R [2022] NSWCCA 47
- Flick v The King [2023] NSWCCA 197
- Geraghty v The Queen [2023] NSWCCA 47
- FL v R [2020] NSWCCA 114
- Additional Court of Criminal Appeal authorities as cited in the judgment