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Supreme Court 10 March 2023

R v Musa

[2023] NSWSC 198

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE TRAUMATIC UPBRINGING NO CRIMINAL RECORD PTSD CAUSED BY EXPERIENCES IN WAR SENTENCE IMPOSED

Citation: R v Musa [2023] NSWSC 198
Court: Supreme Court of New South Wales
Date: 10 March 2023
Judge: Button J

Background

The offender, a 47-year-old Sudanese-born Australian resident, was convicted by jury of the murder of her former romantic partner on 27 June 2020. The jury returned its verdict on 12 December 2022, and sentencing proceedings were conducted on 16 February 2023.

The offence arose from a volatile domestic situation. On the day of the killing, the offender drove to the deceased's apartment building at Wentworth Point after receiving no reply to a heartfelt message she had sent him. She gained access to the secure building without his knowledge. When the deceased opened his door, she discovered him with another woman. She spat in his face and returned to her vehicle.

The deceased followed her into the car park. Over the course of several seconds, the offender formed an intention to inflict serious physical injury on him. She drove her large Toyota Kluger SUV directly at him. The vehicle pinned him against a wall of the car park, crushing him to death. The killing was captured on CCTV.

  • Whether this was an appropriate case for a life sentence or a standard sentence with a non-parole period
  • The objective seriousness of the offence, including the nature and extent of the offender's intention
  • The weight to be given to subjective mitigating factors, including the offender's traumatic background, PTSD, and previously unblemished character
  • Whether special circumstances existed to justify a reduction in the non-parole period below the statutory ratio

Decision

Button J held that, while the offence was grave, it did not warrant the maximum penalty of life imprisonment. The Crown did not submit otherwise, and His Honour agreed. The relevant standard non-parole period for murder is 20 years.

On objective seriousness, Button J found the offence was spontaneous rather than premeditated. The intention to cause really serious physical injury formed in seconds on the discovery of the deceased with another woman. The court could not be satisfied beyond reasonable doubt that the offender intended to kill. Even so, His Honour characterised the crime as deeply self-centred, noting that driving a large vehicle at a person with intent to seriously injure creates a powerful risk of death. The offence was described as a modern equivalent of what was historically called a "crime of passion," though Button J was emphatic that contemporary Australian society and courts firmly condemn such conduct regardless of the emotional provocation involved.

On subjective factors, the court acknowledged significant mitigating circumstances. The offender had arrived in Australia as a refugee in 2004 having survived civil war in Sudan, including witnessing deaths and fearing for her own life on many occasions. She had been diagnosed with PTSD arising from those experiences, which was found to have played a role in the fatal emotional outburst. She had no prior criminal record and had led a constructive life in Australia before the offence. However, there was no evidence of remorse or acceptance of responsibility, and no utilitarian discount applied given the not guilty plea.

Button J found special circumstances justifying a modest reduction in the non-parole period below the statutory ratio. The reasoning was that reintegration into the community, after lengthy incarceration compounded by the offender's traumatic background, would require an extended period of supervision on parole.

Orders Made

  • The offender was convicted of murder.
  • Head sentence of 20 years imprisonment imposed.
  • Non-parole period of 14 years, commencing 27 June 2020 and concluding 26 June 2034.
  • Parole period of 6 years, concluding 26 June 2040.
  • Sentence fully backdated to the date of arrest.
  • First eligible parole date: 26 June 2034.

Key Takeaways

  • A murder conviction arising from spontaneous domestic violence, without premeditation and without proven intent to kill, does not necessarily attract the maximum penalty, though it may still be assessed as objectively grave.
  • Where an offender drives a large vehicle at a person with intent to cause serious injury, the court will note the obvious and powerful risk of death that such conduct creates, even if an intent to kill cannot be proven to the requisite standard.
  • Significant personal mitigation, including refugee status, PTSD caused by wartime trauma, and a previously unblemished record, can influence the overall sentence structure even where the offence is extremely serious.
  • The absence of any remorse or acceptance of responsibility is a relevant factor in sentencing for murder and was noted as weighing against the offender, alongside the absence of any utilitarian discount from a not guilty plea.
  • Special circumstances justifying a reduced non-parole period can be found in murder cases where the combination of a lengthy minimum term and the offender's pre-existing psychological vulnerabilities is likely to make post-release reintegration particularly difficult.

Legislation and Cases Referenced

Legislation:
- The judgment references the maximum penalty of life imprisonment and a standard non-parole period of 20 years for murder under New South Wales law (specific Act not cited in the judgment text).

Cases:
- No specific cases were cited in the provided judgment text.