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Supreme Court 31 March 2023

R v Hamdach

[2023] NSWSC 298

Homicide

Citation: R v Hamdach [2023] NSWSC 298
Court: Supreme Court of New South Wales
Date: 31 March 2023
Judge: Campbell J

Background

The offender, a man aged 27 at the time of the offending, pleaded guilty to the murder of a 28-year-old man who had sold him counterfeit AirPods on Facebook Marketplace in February 2020. After realising the purchase was fraudulent and being unable to reach the victim by phone, the offender devised a plan to lure the victim into a second meeting, using his partner as a decoy. The victim was subsequently kidnapped and subjected to a violent assault by the offender's co-offender, Abdul Karaali. The victim died on 17 February 2020, three days after the assault was inflicted.

The offender pleaded guilty on the first day of his adjourned trial in July 2022. It was common ground between the parties that the physical acts causing the victim's death were carried out by Karaali, not the offender. The sentencing proceedings therefore required Campbell J to resolve the precise legal basis for the offender's criminal responsibility and to weigh a range of contested subjective circumstances.

The case raised three main areas of dispute: the applicable category of murder (constructive murder versus extended joint criminal enterprise), the offender's mental health at the time of offending, and whether special circumstances existed to justify departing from the standard 75/25 ratio between non-parole period and additional term.

  • Whether the offender's liability for murder arose under the constructive (felony) murder rule, under the doctrine of extended joint criminal enterprise, or under some combination of both, and what consequence, if any, that categorisation had for objective seriousness
  • How to weigh the contested expert psychiatric evidence regarding the offender's schizoaffective disorder and its effect on his moral culpability at the time of offending
  • The proper application of the standard non-parole period of 20 years for murder, and where within the range the offending sat
  • Whether special circumstances existed to justify a non-parole period below 75 per cent of the head sentence
  • The relevance of the offender's childhood exposure to domestic violence as a mitigating factor

Decision

Campbell J found that the offending began as constructive murder (also known as felony murder), with the foundational offence being specially aggravated kidnapping, and that from a later point in the joint enterprise, the offender's liability also engaged the doctrine of extended joint criminal enterprise. His Honour accepted that there is no hierarchy of objective seriousness based on the legal category of murder, and that the gravity of the offending depended on what the offender actually did and with what intent. The offender was found to be the instigator of the entire enterprise, having conceived and implemented the plan to lure the victim to his death, and that conduct was assessed as placing the case in the mid-range of objective seriousness.

On mental health, three experts gave evidence. There were differences of opinion as to the offender's diagnosis and the extent to which his mental state affected his culpability. Campbell J found that the offender was suffering from schizoaffective disorder with manic symptoms at the time of offending, characterised by over-confidence and assertiveness, but that this did not substantially diminish his moral responsibility. The offender's childhood experience of domestic violence was accepted as a mitigating factor in accordance with established High Court authority, as such experiences can limit a person's capacity to mature and make sound judgments.

His Honour accepted the offender's guilty plea as a mitigating factor, noting it was entered at a relatively late stage. The plea nonetheless saved the community the cost and burden of a trial. The offender's prospects of rehabilitation were assessed as reasonable, given his engagement with treatment in custody and the management of his mental health condition.

On special circumstances, Campbell J was not satisfied that any existed. The offender's mental health condition was well managed in custody, and the burden of COVID-related delays, while acknowledged, was shared by all inmates and did not constitute something special to this offender. A non-parole period representing 75 per cent of the head sentence was therefore applied, with a minor adjustment to avoid artificial arithmetical precision.

Orders Made

  • The offender was convicted of the murder of Ross Houllis
  • Sentenced to imprisonment with a non-parole period of 12 years, commencing 15 February 2020 and expiring 14 February 2032
  • Additional term of 4 years and 2 months, commencing at the expiration of the non-parole period and expiring 14 April 2036
  • First eligible for parole on 14 February 2032

Key Takeaways

  • For sentencing purposes, there is no hierarchy of objective seriousness determined by the legal category of murder (constructive murder versus extended joint criminal enterprise); the gravity of the offending turns on what the offender actually did and with what degree of intent.

  • A finding that the physical acts causing death were carried out by a co-offender does not preclude the instigation and planning of the enterprise from being treated as seriously culpable conduct at sentencing.

  • Schizoaffective disorder with manic symptoms can constitute a mitigating factor at sentencing, but its weight depends on the degree to which it actually diminished moral responsibility on the evidence, including expert psychiatric testimony subject to cross-examination.

  • Childhood exposure to domestic violence retains mitigating weight at sentencing in New South Wales, consistent with the principle that such experiences can impair a person's capacity to develop sound judgment and emotional regulation.

  • The Supreme Court confirmed that a first custodial sentence and COVID-related delays in finalising proceedings, without more, do not establish special circumstances sufficient to depart from the standard 75/25 non-parole to additional term ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 18 (definition of murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 54A(2), 54B(2), 25D
- Crimes (High Risk Offenders) Act 2006 (NSW) s 25C
- Criminal Law Consolidation Act 1935 (SA) s 12A

Cases:
- Mitchell v The King [2023] HCA 5; 97 ALJR 172 (extended joint criminal enterprise)
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (standard non-parole periods)
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 (joint criminal enterprise)
- McAuliffe v The Queen (1995) 183 CLR 108 (extended joint criminal enterprise)
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- The Queen v Olbrich (1999) 197 CLR 270; [1999] HCA 54 (onus of proof at sentencing)
- Bugmy v The Queen (2013) 249 CLR 570; [2013] HCA 37 (childhood disadvantage as mitigating factor)
- Decision Restricted [2023] NSWSC 222