Citation: R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 6) [2016] NSWSC 1867
Court: Supreme Court of New South Wales
Date: 20 December 2016
Judge(s): Rothman J
Background
Two brothers, Azam Charbaji and Haysem Charbaji, were convicted after trial of the murder of Dane McNeill, committed between 18 and 20 July 2014 in the Cartwright area of south-western Sydney. A third co-offender, Lexy Jamieson, was convicted in the same trial of accessory after the fact to murder, relating to conduct at her apartment between 18 and 22 July 2014.
The background to the offending involved a dispute over money. Haysem Charbaji claimed that damage to his car, costing approximately $4,300, had been caused as a result of actions connected to the deceased and his girlfriend. A drug transaction in which the deceased's girlfriend paid for ice but received salt further complicated the financial dispute. These grievances ultimately provided the context for the fatal events.
Jamieson was aware that a murder had been committed and played a role in harbouring and assisting the two principal offenders afterwards. Rothman J noted that she was also aware of the unnecessary cruelty associated with the killing and had taken steps to destroy potential forensic evidence at her apartment.
Legal Issues
- What is the objective seriousness of the murder, assessed within the range of conduct captured by that offence?
- How do the subjective circumstances of each offender, including psychiatric conditions and prior criminal history, affect the appropriate sentence?
- What weight should be given to general deterrence where one offender has a psychiatric condition?
- What is the appropriate sentence for the accessory after the fact, given her level of knowledge and involvement?
- What role, if any, should victim impact statements play in fixing the sentence?
Decision
Rothman J began by explaining the sentencing framework in accessible terms, noting that even within the category of murder, courts must assess where a particular offence sits on the spectrum of seriousness. The murder of Dane McNeill was assessed as well above the mid-range of objective seriousness. Both principal offenders had significant prior criminal records, which weighed against them.
On the question of psychiatric conditions, Rothman J addressed the interaction between mental health and the standard sentencing objectives. Where a psychiatric condition affects an offender's moral culpability, this may reduce the weight given to general deterrence. However, the same conditions can increase the need for specific deterrence and the protection of society. These competing considerations required careful calibration in each offender's sentence.
Concerning victim impact statements, Rothman J noted that portions of the statements were impermissible because they addressed the question of what sentence should be imposed, a matter settled by the High Court in Barbaro v The Queen. The Court acknowledged the profound grief expressed by the deceased's family but confirmed that the sentencing objectives, rather than the content of the statements, must govern the outcome.
For Jamieson, the accessory offence was assessed as slightly above the mid-range. Her full awareness of the cruelty involved in the murder and her active steps to conceal evidence were treated as aggravating features, while her sentence also reflected the lower maximum penalty of 25 years that applies to accessory after the fact to murder, compared with life imprisonment for murder itself.
Orders Made
- Azam Charbaji (murder): non-parole period of 24 years commencing 7 January 2015, expiring 6 January 2039; balance of term of 8 years expiring 6 January 2047; first eligible for parole 6 January 2039.
- Haysem Charbaji (murder): non-parole period of 27 years commencing 14 February 2016, expiring 13 February 2043; balance of term of 9 years expiring 13 February 2052; first eligible for parole 13 February 2043. The commencement date was fixed to run concurrently with an earlier sentence, in accordance with the totality principle.
- Lexy May Jamieson (accessory after the fact to murder): non-parole period of 2 years commencing 14 August 2016, expiring 13 August 2018; balance of term of 2 years expiring 13 August 2020; first eligible for parole 13 August 2018. Four months and six days already served were taken into account.
- No discount was applied to any sentence for a plea of guilty or assistance to authorities.
Key Takeaways
- Murder sits at the apex of the criminal calendar, but the sentencing court must still position each offence within the spectrum of conduct that offence encompasses, ranging from the lowest level of culpability to the worst case category.
- A psychiatric condition affecting an offender's moral culpability can reduce the weight given to general deterrence, but this consideration must be balanced against the potential increase in the need for specific deterrence and community protection.
- Victim impact statements that contain submissions about what sentence ought to be imposed are impermissible, consistent with the High Court's ruling in Barbaro v The Queen (2014) that sentencing is the exclusive province of the court.
- The totality principle was applied to Haysem Charbaji's sentence by running its commencement date concurrently with an earlier sentence, ensuring the overall sentencing outcome was just and not disproportionate when viewed as a whole.
- Knowledge of the cruelty associated with the underlying offence, and active steps taken to destroy forensic evidence, are factors that increase the objective seriousness of an accessory after the fact charge.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) ALJR 372
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v Farroukh (NSWCCA, Gleeson CJ, Levine and Dowd JJ, 29 March 1996, unreported)
- R v Fennell [2011] NSWSC 489
- R v Wells [2008] NSWSC 206