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Supreme Court 3 September 2004

R v Azar

[2004] NSWSC 797

Sexual offencesHomicideFirearms & weapons
CRIMINAL LAW MURDER SHOOTING AFTER CHILDHOOD SEXUAL ASSAULT EXTRA CURIAL PUNISHMENT

Citation: R v Azar [2004] NSWSC 797
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 3 September 2004
Judge(s): Kirby J

Background

The accused was charged with murdering Sami Sarraf, whom he shot at Sarraf's home in Guildford shortly after midnight on 23 June 2001. The accused drove to the home, knocked on the door, and when the deceased retreated inside, followed him and discharged all seven bullets from a pistol. Three bullets struck the deceased, one penetrating his brain.

The accused pleaded not guilty to murder but guilty to manslaughter, claiming he was substantially impaired at the time by an abnormality of mind. The jury rejected substantial impairment and returned a verdict of guilty of murder. The sentencing judgment addressed what facts could be established consistently with that verdict, and what weight to give several mitigating circumstances.

The accused's stated explanation for the shooting was that the deceased had sexually assaulted him as a child in Lebanon when the accused was approximately six or seven years old. The accused said the encounter had profoundly affected his life, contributing to shame, substance abuse, and eventual heroin addiction. Notably, the accused wore latex surgical gloves during the shooting, a fact Kirby J found proved beyond reasonable doubt.

  • Whether the shooting was a premeditated act of revenge (aggravating) or the act of a person significantly, though not substantially, impaired by a psychiatric condition (mitigating)
  • What weight to give the accused's history of childhood sexual assault as context for sentencing
  • Whether the beating administered by the deceased's son after the shooting constituted extra-curial punishment, and if so, what weight it should attract in sentencing
  • How the commencement date of the murder sentence should be fixed, given a concurrent sentence for an earlier drug offence

Decision

Kirby J accepted, on the balance of probabilities, that the accused was sexually assaulted by the deceased as a child, describing that history as broadly accurate though not a complete explanation for the accused's subsequent behaviour. The wearing of gloves was treated as strong evidence of premeditation: it indicated deliberate planning and an intention to avoid leaving forensic evidence at the scene.

On psychiatric impairment, the court accepted that the accused was significantly (though not substantially) impaired at the time of the offence. This was treated as a mitigating factor but not one that diminished his culpability to the degree associated with manslaughter. The jury's rejection of substantial impairment was treated as the appropriate baseline for sentencing.

On extra-curial punishment, Kirby J acknowledged the principle, drawn from existing case law, that a sentencing court may take into account punishment already suffered at the hands of private individuals. The deceased's fifteen-year-old son tackled and struck the accused after the shooting. The court found those actions understandable in the circumstances but noted the injuries were not permanent, so this factor was given little weight.

The sentence commencement date was set at 22 August 2001, three months after arrest, to ensure it was not wholly concurrent with a pre-existing drug sentence that had commenced on 25 June 2001.

Orders Made

  • The accused was sentenced to imprisonment for 17 years, commencing 22 August 2001 and expiring 21 August 2018.
  • A non-parole period of 12 years was set.
  • The accused became eligible for release on parole on 22 August 2013.

Key Takeaways

  • Significant but not substantial psychiatric impairment is a recognised mitigating factor in murder sentencing, capable of reducing the weight of the offence without displacing a murder verdict or its sentencing range.
  • Pre-planning indicators, such as the wearing of surgical gloves to a shooting, can be established as an aggravating factor and treated as evidence of premeditation even where the accused claims no memory of the events.
  • Under the extra-curial punishment principle, a sentencing court may reduce a sentence to reflect serious harm inflicted on the offender by private individuals after the offence; however, the weight given to that reduction depends on the severity and permanence of the harm suffered.
  • Childhood sexual trauma by the victim does not provide a complete defence or excuse but can constitute relevant background context, accepted on the balance of probabilities, that informs the court's assessment of the accused's state of mind and moral culpability.
  • Where a concurrent sentence for an earlier offence creates uncertainty about the effective commencement date, a sentencing court may delay the start of a new sentence to ensure the two sentences are not wholly concurrent, preserving the cumulative effect appropriate to separate offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c)

Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Allpass (1993) 72 A Crim R 561
- R v Daetz (2003) 139 A Crim R 398