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Supreme Court 19 March 2025

R v Al-Qas Soomo

[2025] NSWSC 204

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCE

Citation: R v Al-Qas Soomo [2025] NSWSC 204
Court: Supreme Court of New South Wales
Date: 19 March 2025
Judge: Campbell J

Background

The defendant was found unfit to be tried in February 2023, a status that has been maintained on successive reviews by the Mental Health Review Tribunal (MHRT). He suffers from a Psychotic Disorder characterised by a delusional and fixed false belief that his wife had been persistently unfaithful throughout their marriage. The evidence established that she was, in fact, a devoted and loving wife and mother.

A special hearing was conducted under the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). On 19 November 2024, Campbell J returned qualified verdicts on four counts: intimidation of the defendant's wife (Count 1); assault occasioning actual bodily harm against each of two daughters (Counts 2 and 3); and manslaughter of the wife, as an alternative to the murder charge (Count 4). The underlying events occurred on and around 21 and 30 November 2020, with the wife killed on the latter date.

The present judgment addressed the next statutory step: nominating a limiting term, being the court's best estimate of the sentence that would have been imposed had the special hearing been an ordinary criminal trial of a person fit to be tried.

  • What is the correct approach to nominating a limiting term under s 63 of the Act, where the defendant cannot be sentenced because the special hearing verdicts do not constitute convictions?
  • How should ordinary sentencing principles apply when the defendant's mental health impairment prevented full participation in proceedings and precluded a guilty plea?
  • What limiting terms were appropriate for the manslaughter and for the domestic violence offences, having regard to objective seriousness, aggravating factors, and the applicable mitigating circumstances?
  • How should the limiting terms for multiple offences be structured, including questions of accumulation and concurrency?

Decision

Campbell J confirmed that a limiting term is not a sentence and the special hearing verdicts are not convictions. The purpose of nominating a limiting term is not to punish the defendant but to ensure he is not detained beyond the maximum period he could have been detained following an ordinary conviction and sentencing. The limiting term equates to the head (total) sentence and no minimum or non-parole period is fixed.

In assessing the objective seriousness of the manslaughter, the court found the killing arose from the defendant's delusional jealousy following a long history of violent, controlling, and abusive conduct toward his wife and children. The court had found at the special hearing that the defendant intended to kill his wife, although the manslaughter verdict was returned because the mental health impairment defence was not made out on the balance of probabilities. That impairment was nonetheless a significant mitigating factor at the limiting term stage. The court assessed the manslaughter as falling in the mid-range of objective seriousness.

The court applied a 10% discount to reflect the defendant's inability, by reason of his mental illness, to demonstrate mitigating factors and to enter a guilty plea, as contemplated by s 63(5) of the Act. No other sentencing discounts were available on the facts. For Counts 1 to 3, which arose from a single episode but involved three separate victims, the court applied partial notional accumulation and concurrency to arrive at an aggregate indicative sentence of two years and six months (after the 10% discount), broken down as one year and eight months for Count 1, one year for Count 2, and four months for Count 3. For the manslaughter, the limiting term was nominated at 11 years (after the discount).

The limiting term for Counts 1 to 3 was ordered to commence on 30 November 2020, the date of the defendant's initial custody. The manslaughter limiting term was partially accumulated to commence on 30 November 2021, producing a total effective limiting term of 12 years, expiring on 29 November 2032.

Orders Made

  • The defendant is referred to the Mental Health Review Tribunal under s 65 of the Act.
  • The defendant is to be held in custody in an appropriate Correctional Centre until further assessment by the Tribunal.
  • The Registrar is directed to inform the Tribunal of the nominated limiting terms and of these orders.
  • The Registrar is directed to provide the Tribunal with a copy of the court's reasons.

Key Takeaways

  • A limiting term under s 63 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW) is not a sentence and does not follow a conviction; it represents only the court's best estimate of the head sentence that would have been imposed in an ordinary trial, fixing the maximum period of detention.
  • The limiting term equates to the total or head sentence, not the non-parole period, and no minimum term is nominated, consistent with R v Mailes (2004) and R v AN (2005).
  • All ordinary statutory and common law sentencing principles apply when nominating a limiting term, adapted to the extent that the defendant's mental health impairment may have limited the availability of mitigating factors and precluded a guilty plea discount.
  • Under s 63(5), a court may apply a discount to the limiting term to reflect a defendant's inability, by reason of mental impairment, to demonstrate mitigating factors or to enter a plea of guilty that would otherwise have attracted a sentencing reduction.
  • Ongoing detention beyond the limiting term is not automatic: the MHRT retains the function of regularly reviewing the defendant's condition and assessing when release into the community, subject to appropriate conditions, is warranted.

Legislation and Cases Referenced

Legislation
- Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 46, 59, 62, 63, 64, 65
- Crimes Act 1900 (NSW), s 114(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Al-Qas Soomo [2024] NSWSC 1461 (principal judgment from the special hearing)
- R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394
- R v AN [2005] NSWCCA 239
- R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
- Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39
- Goodbun v R [2020] NSWCCA 77
- Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Engbert (1995) 84 A Crim R 67
- R v Ryan (1995) 90 A Crim R 191
- R v Peterson (No 5) [2014] NSWSC 1080
- R v Warren Scott (No 3) [2021] NSWSC 1646