R v Al-Qas Soomo

Catchwords: CRIMINAL LAW – sentence – special hearing where the defendant is unfit to be tried – where the defendant suffers from a Psychotic Disorder –imposition of a limiting term under Mental Health (Forensic Provisions) Act – nominating a best estimate of the sentence that would have been passed in an ordinary trial – consideration of objective seriousness of the offences – consideration of aggravating factors and mitigating circumstances in determining the limiting term

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW)

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

Category: Principal judgment

Parties: Rex (Crown)
Alam Al-Qas Soomo (Defendant)

Representation: Counsel:
M Hay (Crown)
S Corish (Defendant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
SANS Law (Defendant)

File Number(s): 2020/339992; 2021/5289

Publication restriction: Nil.

JUDGMENT

1. On 23 February 2023, McNaughton J found the defendant, Alam Al-Qas Soomo, unfit to be tried under s 46 of the Mental Health & Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”; unless otherwise specified all refences to legislation are to the Act). Her Honour referred the defendant to the Mental Health Review Tribunal (“MHRT”) for review from time to time in accordance with the Act. On review, the MHRT has continued to certify the defendant as unfit to be tried.

2. After conducting a special hearing under the provisions of the Act on an indictment containing four counts, on 19 November 2024, I brought in the following verdicts under s 59:

(1) For count 1, on the limited evidence available, the defendant committed the offence of intimidation against his then wife, Samar Shlemoon.

(2) For count 2, on the limited evidence available, the defendant committed the offence of assault occasioning actual bodily harm against Soneevia Al-Qas Soomo.

(3) For count 3, on the limited evidence available, the defendant committed the offence of assault occasioning actual bodily harm against Sonia Al-Qas Soomo.

(4) For count 4, on the limited evidence available, (as an alternative verdict for the murder charge), the defendant committed the offence of the manslaughter of Samar Shlemoon.

3. I am now required to indicate the penalty that would have been passed had the special hearing been an ordinary trial of criminal proceedings against a person fit to be tried. As I have concluded that I would have imposed a sentence of imprisonment for each of these offences, I am required to nominate a term that is the best estimate of the sentence that I would have imposed on the defendant in those circumstances. This term is referred to as a limiting term (s 63(2)).

4. It is important for me to bear in mind that the verdicts I have returned under s 59 are not convictions (s 62), rather, they constitute a qualified finding of guilt only. The evidence at the special hearing was “limited” because the defendant’s capacity to fully engage in the trial process, instruct counsel and decide whether to give evidence are all impaired. Equally, the limiting term I will nominate does not constitute a sentence; there can be no sentence absent a conviction.

5. Mr Corish of counsel, who appeared for the defendant at the special hearing and again on the penalty proceedings, reminded me of the general principles to be applied for the purpose of the application of s 63 of the Act as follows:

(a) The Court is required to make the “best estimate” of the sentence that would have been passed (s 63(2)) because there is no sentence, and in any event, as with the special hearing, the defendant by reason of his mental health impairment is also unable to participate fully in the penalty proceedings. Accordingly, it is not possible to be precise and a best estimate is all that can be achieved; (b) The object of nominating a limiting term is not to punish a defendant who, as I have said, has not been convicted of any crime, but to ensure that he is not detained in custody longer than the maximum he could have been detained if so convicted following a proper trial: R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394 at [32]; (c) As the limiting term fixes the maximum time that the defendant can be detained, it equates to the head or total sentence and not the non-parole period: R v Mailes at [32]; R v AN [2005] NSWCCA 239 (“R v AN”) at [13]; R v Mitchell (1999) 108 A Crim R 73. The Court does not fix a minimum or notional non-parole period; (d) In determining the limiting term, the Court is to adopt and apply all of the principles of sentencing law arising under statute or at common law as may be applicable to the facts, matters and circumstances of the case relevant to penalty: R v AN at [13]; (e) The Court must take into account that the defendant’s mental health impairment may limit his ability to demonstrate mitigating factors for sentence and his inability to have entered a guilty plea for the purpose of obtaining a discount on his sentence. The Court may take into account any other sentencing discount which may have been available to the extent to which they may have been applicable to the case at hand (s 63(5)); and (f) Time in custody before, during and after the special hearing is to be taken into account: ss 63(5) and 64(1)(a).

Summary of issues and facts found

6. What follows in this judgment assumes familiarity with my judgment of 19 November 2024: *R v Al-*Qas Soomo [2024] NSWSC 1461. I there found all of the facts which supported the verdicts I brought in and fully analysed the detailed expert evidence relevant to what was the central issue in the case, the availability of the mental health impairment defence established by s 28 of the Act which, if made good by the defendant on the balance of probabilities, would have provided a complete defence to each count on the indictment and would have required me to bring in a special verdict of act proven, but not criminally responsible on each count (s 59(1)(b)).

7. In my principal judgment (at [94]), I found on the balance of probabilities that the defendant suffered from a mental health impairment, being a Psychotic Disorder, characterised by a delusional belief that his wife had been serially and in a promiscuous way unfaithful to him from the commencement of their marriage. The belief was delusional because I was satisfied on the whole of the evidence that it was a fixed, false belief, having no basis in fact, and demonstrably so. I was satisfied from the whole of the evidence, particularly the evidence of her daughters, Soneevia and Sonia, that Ms Shlemoon was a devoted and loving wife and mother. She was a religious woman and leaving aside an isolated case of an innocent flirtation in 2017, there was no evidence whatsoever led before me to found the defendant’s false belief. Despite the differences between the qualified experts, Dr Eagle and Dr Martin, I was of the view that the Psychotic Disorder pre-existed the killing of Ms Shlemoon on 30 November 2020 by a considerable period of time. I was of the view, with the benefit of hindsight, that the condition was evident when the defendant consulted a psychiatrist on referral of his GP in June of 2020, that specialist’s uncertainty notwithstanding.

8. I was not satisfied that the defendant’s condition was such as he did not know that the act of killing Ms Shlemoon was “wrong” as defined by the Act and accordingly, I was not satisfied that the mental health impairment defence had been established on the balance of probabilities (PJ [101]-[102]).

9. Having determined that issue adversely to the defendant, I turned to the question of whether I was satisfied beyond reasonable doubt that he had the requisite intent for each of the counts on the indictment, there being no issue about the factual basis for each charge. I was so satisfied that in each case the requisite intent had been established. In relation to count 4, for the reasons I expressed (PJ [106]), I was satisfied to the requisite criminal standard that the defendant intended to kill Ms Shlemoon. It may be convenient to briefly summarise my findings in relation to each matter.

Counts 1 to 3

10. It is important for me to record that I received a considerable body of documentary evidence admitted as contextual, relationship or background evidence that, over the length of their marriage, from 1995 to the homicide of Ms Shlemoon in 2020, the defendant was a very jealous, controlling and physically abusive husband (PJ [30]-[41]). I was satisfied that the defendant was violent, often threatening his wife with a knife, humiliating her in vile ways and denying her adequate funds for running their household and providing for their children.

11. This body of evidence I summarised established that what happened on 21 November 2020 giving rise to counts 1 to 3 was far from an isolated, out of character episode for the defendant. Rather, it established to my satisfaction that the events of that evening were part and parcel of an ongoing course of conduct of abuse perpetrated by the defendant against his wife and, to a lesser extent, his children.

12. The facts underpinning my verdict in relation to count 1 of being armed with a weapon, namely a knife, with intent to commit an indictable offence contrary to s 114(1)(a) Crimes Act 1900 (“Crimes Act”) (NSW)(the indictable offence being intimidation contrary to the provisions of s 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW)) are that the defendant woke his sleeping wife by flicking the blunt edge of a knife he had armed himself with on her leg. The defendant was intoxicated at the time and continued to brandish the knife after Ms Shlemoon had been roused from her sleep. She called out to her children for protection, and when her daughters entered the bedroom, the defendant made accusations of infidelity against Ms Shlemoon.

13. Counts 2 and 3, being counts of assault occasioning actual bodily harm against Soneevia and Sonia respectively, are each contrary to the provisions of s 59 Crimes Act. They were committed when Soneevia and Sonia sought to intervene to protect their mother. For count 2, the defendant struck Soneevia three times to her face with his open hand with sufficient force to knock her to the ground. She felt immediate pain from the blows which caused bleeding from her mouth, swelling of her face and the loosening of some of her teeth.

14. For count 3, the defendant pulled Sonia by her right arm, twisting it forcibly. He manhandled her roughly causing bruises and scratches to her arms, which resulted in pain that lasted a few days.

Objective seriousness

15. I turn to the question of assessing the objective seriousness of each of the offences. I remind myself that this assessment is to be made “wholly by reference to the nature of the offending”. “Meaningful content cannot be given to the concept by taking into account characteristics” or the subjective circumstances “of the offender”: Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 (at [27]).

16. The intimidation offence carries a maximum penalty of seven years imprisonment, and each of the assaults occasioning actual bodily harm, five years. They are not standard non-parole period offences. As always, the maximum penalty which is reserved for the worst category of case is an important guidepost under general sentencing law.

17. For count 1, I am satisfied that the facts as I have found them to be represent a relatively serious example of intimidation given the defendant was armed with a knife that he brought into contact with Ms Shlemoon’s leg to wake her up and he continued the intimidation when he had roused her from sleep. As I have said, it was not an isolated occurrence. To the extent to which it is necessary to say so I would regard the offending as being, in general terms, mid-range.

18. I would assess the assault against Soneevia involving the deliberate infliction of actual physical violence with sufficient force to knock her to the ground as falling in the mid-range, but perhaps toward the lower end of that range. Without in any way seeking to minimise the assault against Sonia, it is obviously of a lesser order having an objective seriousness in the low-range.

Count 4

19. Turning then to the manslaughter offence, I record that the maximum penalty is one of 25 years. I also remind myself, as is frequently said, manslaughter is the most protean of criminal offences covering a wide range of criminality from, at the low range, a practical joke gone wrong to, at the high range, something falling just short of murder. However, it is most important to bear in mind that every case of manslaughter involves the unlawful taking of a human life (R v Blacklidge unreported, 24 February 1995 NSWCCA, per Gleeson CJ).

20. As set out in my principal judgment, I found that after the events of 21 November 2020, Ms Shlemoon did her best to avoid being alone in the defendant’s company. However, it transpired that they were at home together on the morning of 30 November 2020 when he killed her. As I have recounted, I am satisfied that when he did so he intended to kill her. As only the two of them were home, not all of the circumstances were able to be proved at the special hearing. I inferred that the braided rope observed by first responding police around Ms Shlemoon’s neck when they arrived at the scene had been wrapped around her neck by the defendant. The purpose of this “noose” was not established by the evidence, but no significant injury was caused by it. It did not contribute to her death. The defendant caused Ms Shlemoon’s death by stabbing her three times in the chest and shoulder with a large wooden handled knife. The forensic pathologist determined the cause of death to be the combined effect of these three penetrating stab wounds which resulted in massive blood loss. A number of “defensive” wounds and injuries were identified on Ms Shlemoon’s arms suggesting a frenzied, sustained attack which Ms Shlemoon had struggled to fight off.

21. In the immediate aftermath of the homicide, the defendant admitted to a neighbour that he had killed his wife “because of old problems”. While he declined to be interviewed by police, he volunteered that he had killed his wife, saying, “I am a killer” and "My brain is not in my head now”.

22. Having put the mental health impairment defence to one side, I was satisfied beyond reasonable doubt on the limited evidence available that the prosecution had established the legal elements of murder, subject to the alternative, partial defence of substantial impairment due to a mental health impairment under s 23A Crimes Act.

23. I was satisfied on the balance of probabilities, for the reasons I explained in my principal judgment (at [107] – [119]), that the defendant’s Psychotic Disorder substantially impaired his capacity to exercise self-control. I accepted on the psychiatric evidence that the defendant's Psychotic Disorder did in fact operate to substantially impair his capacity for self-control on 30 November 2020 and that his loss of control resulted in the fatal attack upon his wife (PJ [116]). The evidence did not identify any precipitating circumstance beyond his obsessive deluded jealousy.

24. Having regard to the evidence establishing the long history of the defendant's obsessive and delusional jealousy, its intensity and his inability to overcome it because of the intractable nature of his mental health impairment, I was satisfied on the balance of probabilities that his mental health impairment was “so substantial” as to justify the reduction of his criminal responsibility for murder to manslaughter (PJ [119]). These findings mean that the partial defence of substantial impairment was established.

25. The manslaughter of Ms Shlemoon by the defendant is an example of voluntary manslaughter which, depending on the circumstances, may be regarded as involving more serious criminality than involuntary manslaughter, such as manslaughter by unlawful and dangerous act on the one hand, or by criminal negligence, on the other. The deliberate use of a knife in a determined way to achieve his purpose elevates the objective seriousness of the offending. At the same time, the defendant’s intentional killing of his wife was at least partly the product of his disordered mind which, had he been fit to stand trial, would have reduced, as I have said, his criminal responsibility from murder to manslaughter. I accept this is a subjective factor and not strictly relevant to the concept of objective seriousness. Given the protean nature of the crime of manslaughter to which I have already made reference, assessments of objective criminality involve their own degree of difficulty and to some extent, artificiality. Focusing solely on the objective circumstances proved by the limited evidence available, I would regard the “offending” as falling in the middle of the range.

Aggravating factors

26. Each matter is aggravated by the consideration that the offending occurred in the home of each victim, this being a place where all members of the community are entitled to feel their safest and completely free from harm.

27. It also needs to be borne in mind that each matter involved domestic violence against each victim, giving rise to an enhanced need for the consideration of the purposes of punishment referred to as specific deterrence, general deterrence and denunciation (Goodbun v R [2020] NSWCCA 77 at [261]). Domestic violence offending engages s 4A Crimes (Sentencing Procedure) Act 1999 (NSW) (“C (SP) Act”) requiring the imposition of a sentence of full-time detention or a supervised order unless a different option is more appropriate in the circumstances. Given the manslaughter verdict, and as I have already indicated, a sentence of full-time detention would be called for on conviction following the criminal trial of a defendant who was fit to plead. As I have said, the manslaughter of Ms Shlemoon by the defendant was the culmination of his long history of violence, abuse and psychological and financial controlling behaviour in their marriage. No sentence other than imprisonment could possibly have been justified.

28. I am of the same view in relation to the offences committed on 21 November 2020. Although it may be said that imprisonment for count 3 would not have been called for had that matter stood alone, and it may have been marginal for count 2, count 1 involving as it did contact with Ms Shlemoon’s person with a knife would have required a sentence of full-time imprisonment. Given that each of the three offences formed an integral part of a single episode of criminality, I am of the view that each of them demands a sentence of full-time imprisonment in the application of the fundamental proportionality principle. Each is made more serious by the commission of the others in close spatial and temporal proximity.

Subjective circumstances

29. The defendant was born in 1960 in Iraq into a family who were members of the Christian minority. He was 60 when he killed his wife, 64 at the special hearing and now 65 years of age. He has been in custody solely in relation to these matters since 30 November 2020. He was educated, and according to Soneevia’s police statement dated 4 December 2020 which I accept, may have worked in the accounting profession in Baghdad when they lived there. As I have said, the defendant and Ms Shlemoon married in about 1995, and she too was of the Christian faith. She was 18 years his junior (PJ [32]). The family fled Baghdad after the invasion by the “Coalition of the Willing” and settled as refugees in Damascus, Syria. They resided there for a period of 16 years migrating to Australia on 29 November 2019, probably on the sponsorship of the defendant’s eldest sister, Thereza, who has resided in Australia with her Iraqi family since about 1993. Accordingly, the Al-Qas Soomo family had resided in Australia for only one year before the homicide.

30. While in Syria, again according to Soneevia’s statement, the defendant worked in “currency exchange”. Sonia's recollection is the same. He had been unemployed since arriving in Australia.

31. In the later years leading up to the homicide, the defendant may have developed a serious drinking problem. Both Soneevia and Sonia recall him frequently being drunk and sometimes drinking as much as two bottles of spiritous liquor in a single day. There is absolutely no suggestion of the defendant being affected by alcohol at the time of the homicide, although he was intoxicated when the offences constituting counts 1, 2 and 3 were committed. It is important for more than one legal reason to emphasise that voluntary intoxication played no part in the defendant’s loss of control on 30 November 2020.

32. As I found in the principal judgment (at [14]), in or about the middle of 2020, the defendant reported symptoms of depression to his general practitioner who in turn referred him to Dr Karthic Modem, a consultant psychiatrist whom he consulted on only one occasion on 6 June 2020. As it was the Covid era of strict social distancing regulation, the consultation was by “tele-psychiatry”. Dr Modem received a history of depression, hopelessness and worthlessness in response to the defendant's belief, false as I have found it was, in his wife's infidelity. Dr Modem diagnosed a Major Depressive Disorder, but she did refer to him being totally consumed by his obsessive jealousy over what he believed to be Ms Shlemoon’s infidelity. A possible differential diagnosis proffered by the expert was that if the defendant’s belief in his wife's infidelity proved to be false, “the possibility of an underlying Delusional Disorder crops up”. As I say, with the benefit of hindsight, and from the psychiatric evidence which I accepted, I have found that the defendant suffers from a Psychotic Disorder characterised by delusional jealousy.

33. There is evidence that the defendant’s sister, Thereza, had a telephone conversation with a Justice Health doctor on 4 April 2022 while the defendant was in custody. In the course of that conversation, she stated that she had not seen the defendant for many years prior to his arrival in Australia. After the arrival of the Al-Qas Soomo family in this country, she saw the defendant frequently, but thought of him as odd, often staring at people and given to argumentativeness. She observed that Ms Shlemoon and her children “seemed scared of him”.

34. He has no prior criminal record during the short time he was living in Australia before the homicide. There is an incident in his custodial record relating to an assault in June 2022, but no details are known. It did not result in a prosecution and was dealt with internally as a breach of prison discipline. From this, I infer that the matter was not considered serious. Soneevia and Sonia give a hearsay history of the defendant having been involved in an “honour killing” in Iraq for which he is said to have served a short gaol term. However, I have no direct evidence of this. There is no record of the conviction in evidence before me and I regard the account as, whilst no doubt well-intentioned, too vague, uncertain and unreliable to be afforded any weight in such a serious matter. I have put the suggestion to one side.

35. A body of evidence I have received suggests that the defendant’s mental condition is stable, or at least controlled in custody by prescribed antipsychotic medication with which he is compliant. There has been a history of auditory hallucinations centred on a particular fictional character named George said to be Lebanese. I am of the view, however, based on the whole of the psychiatric evidence I have considered that George is probably a conscious embellishment on the defendant's part and not a true manifestation of his psychotic illness.

36. One reason this matter has taken so long to reach finality is that the defendant has been extensively investigated while in custody with the assistance of outside consultants for a suspected neuro-degenerative disease, referred to as Perry Syndrome. This has proved to be a confounding factor in arriving at the correct diagnosis in the defendant's case. Only since July 2024 has any neuro-degenerative process been definitively excluded.

37. He is said to have high cholesterol and may have developed type II diabetes which is being treated with appropriate medication. Perhaps consistent with his age, he suffers from nocturnal urinary frequency but has declined neurological referral to investigate and treat this condition. There is no evidence before me that these general medical conditions will make his time more difficult while detained such that they may operate in mitigation of the sentence that would have been passed had the defendant been convicted after a proper trial.

Nominating the limiting term

38. I've already said more than once that, having regard to the apparent objective seriousness of the offending in respect of each matter, I would have been of the view that no sentence other than imprisonment was appropriate for the purpose of s 5 C (SP) Act. Clearly, the objective seriousness of the offending is a key but not necessarily decisive consideration for the purpose of the application of the principle of proportionality.

39. Another central consideration in the circumstances of this case is the defendant's mental health condition. While the effect of the defendant's mental illness does not automatically lead to a lesser sentence than that appropriate to an offender of ordinary capacity, often it will: R v Engbert (1995) 84 A Crim R 67 (at 71 per Gleeson CJ). The mitigating effect of an offender’s mental illness may result in: a reduction in moral culpability; the attenuation of both general and specific deterrence; and serve to make an offender’s time in custody more onerous than the burden on an offender of ordinary mental capacity, which is a factor mitigating what would otherwise be an appropriate sentence.

40. In the present case, it needs to be borne in mind that it is the existence of the defendant's mental health impairment and its effect upon his capacity to control himself that has led to a reduction in what would otherwise have been his criminal responsibility had he been fit to plead. The value judgment involved in the determination that the defendant’s impairment was substantial enough to justify the reduction in his legal responsibility was a decision involving a judgment about culpability or moral blameworthiness: R v Ryan (1995) 90 A Crim R 191; Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 at [33]–[34]. But I accept that the offender’s mental health impairment may be relevant for more than one purpose; this relevance is not necessarily fully exhausted by the reduction in legal responsibility from murder to manslaughter. As N Adams J observed at [27] in R v Warren Scott (No 3) [2021] NSWSC 1646 (“R v Warren Scott (No 3)”), "it is to be accepted that the question of whether a person is substantially impaired is not binary; the person may be substantially impaired to a degree extending beyond that which is required for a finding of substantial impairment under s 23A(1)”. In the present case, the Crown have acknowledged that moral culpability, a factor particularly relevant to the question of sentencing, may have been further reduced allowing room for mitigation of the limiting term I am required to nominate. Likewise, the Crown accepts that the defendant, were he being sentenced after conviction, may not be a suitable vehicle for general deterrence and that the relevance of personal deterrence is somewhat reduced.

41. As in the case of R v Scott Warren (No 3), the defendant was not floridly psychotic immediately after the killing and was able to give the neighbour and police an account of what had occurred. In my principal judgment, I found that this did not mean that the defendant was not substantially impaired at the relevant time given the evidence of both psychiatric experts about that. However, it is my view that for present purposes, the reduction in culpability from murder to manslaughter mostly accounts for the reduction in moral culpability due to the defendant's mental health impairment, but I will allow for a degree of additional mitigation on that score.

42. General deterrence is always an important factor in crimes of domestic violence, but I accept its relevance is reduced in the present case, to some extent only, because of the defendant's mental health impairment. Likewise with personal deterrence, I should say that, given the particular nature of the defendant's Psychotic Disorder and its symptomatic manifestation in delusional jealousy, it seems very unlikely, given that the life of Ms Shlemoon has already been taken, that the defendant will offend again in a similar way in the future. Probably because of his Psychotic Disorder, he has not clearly expressed remorse. At times, he has denied Ms Shlemoon is dead. It is unclear to me whether these denials are an embellishment to exaggerate the degree of his mental health impairment, or have some other explanation founded in psychiatry. Accordingly, the prospect of full rehabilitation is uncertain.

43. I am not of the view that it has been established that his time in custody is likely to be much more onerous by reason of his mental health impairment than that of an offender of ordinary mental capacity. As I have said, his symptoms seem well-controlled by the treatment he is receiving in custody and with which he is compliant. There is nothing about his general health that suggests he will experience a harder time in custody either.

44. In this case, notwithstanding the defendant’s mental health impairment, denunciation, retribution and the vindication of Ms Shlemoon's life unlawfully taken from her (and her family) in her prime must still be given significant weight.

45. Finally, Mr Corish has, by reference to R v Peterson (No 5) [2014] NSWSC 1080 ([12] – [13]), called for a reduction in the penalty that would otherwise have been imposed upon an offender who was fit to be tried on indictment having regard to the degree to which the administration of justice has been facilitated by the manner of the conduct of the defendant's defence. The learned Crown prosecutor agrees that s 22A C(SP)A is engaged by those circumstances. I accept that the special hearing was conducted with efficiency and the pro-active defence was confined to only those issues really in dispute relating to the availability of the s 28 mental health impairment defence and the alternative partial defence of substantial impairment under s 23A Crimes Act. None of the lay or police witnesses were challenged about their accounts. In particular, this showed an appropriate degree of sensitivity to the situation of Soneevia, Sonia and their brother Yousif. I am satisfied that, had they been called to give evidence, it may well have served to re-traumatise them in circumstances where their sense of loss of their mother remains raw and very real. Bearing in mind that the s 28 defence was run unsuccessfully but that I was persuaded that the partial defence had been made good, I am of the view that, had I been sentencing the defendant after a trial on indictment where he had been fit to plead, I would have reduced the sentence I would otherwise have passed by 10%.

46. Given the maintenance of the s 28 defence and the degree of embellishment by the defendant of his symptoms, I am not satisfied that there is reason to suppose that had the defendant been fit to plead, he would have offered to plead guilty to the somewhat lesser offence of manslaughter and no further discount would have been due for that reason.

Victim impact statements

47. I acknowledge the victim impact statements read on behalf of the Soneevia and Sonia. In accordance with the requirements of the legislation governing special hearings, I am prohibited from taking them into account. But, on behalf of the Court, I acknowledge the great loss they have suffered and will continue to suffer and extend condolences to them and Yousif.

The limiting terms

48. For the reasons I have given, I have decided that the best estimate of the sentence that would have been passed had the defendant been fit to plead and found guilty after a trial would have been the imposition of an aggregate sentence for counts 1, 2, and 3 of two years and six months. In making this estimate, I have had regard to the consideration that each offence arose out of a single episode of criminality, but having regard to the infringement of the rights of three separate victims, I have allowed for the degree of notional partial accumulation as well as some notional concurrency. After allowing the 10% discount to which I have referred, the relevant indicative sentences are: for count 1, one year and eight months; for count 2, one year; and for count 3, four months.

49. For the manslaughter of Samar Shlemoon, I nominate a limiting term of 11 years, taking into account the 10% discount to which I have referred.

50. Under s 64 of the Act, the aggregate limiting term for counts 1, 2 and 3 is to commence on 30 November 2020, being the date that the defendant was first taken into custody. I consider it appropriate to partially accumulate the limiting term for the manslaughter of Ms Shlemoon so that it commences on 30 November 2021. The total effective limiting term will be one of 12 years commencing on 30 November 2020 and expiring on 29 November 2032.

51. It should be pointed out for the benefit of interested members of the public that, given his unfitness, the defendant's case will be reviewed regularly by the MHRT who will monitor his condition and any risk it assesses he presents to himself or the community. In due course, the MHRT will assess when it considers the defendant ready to be released into the community subject to such conditions as it is empowered, and as it considers appropriate, to impose upon his release.

Orders

52. My orders are:

53. Under section 65 of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), I refer Alam Al-Qas Soomo to the Mental Health Review Tribunal.

54. Under s 65(2) of the said Act, I order that Mr Al-Qas Soomo be held in custody in an appropriate Correctional Centre until further assessment by the Tribunal.

55. I direct that the Registrar inform the Tribunal of the limiting terms I have nominated and of these orders.

56. Direct that the Registrar provide the Tribunal with a copy of my reasons.

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Amendments

20 March 2025

Paragraph 12 s 144 amended to read s 114