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Supreme Court 16 May 2017

R v Kaddour; R v Azar

[2017] NSWSC 586

Homicide
CRIMINAL LAW SENTENCE MURDER FOUND GUILTY BY JURY AFTER TRIAL UNPROVOKED ATTACK OFFENCE IN THE MID

Citation: R v Kaddour; R v Azar [2017] NSWSC 586
Court: Supreme Court of New South Wales
Date: 16 May 2017
Judge: Mathews AJ

Background

Two men, referred to here as the first offender (convicted of murder) and the second offender (who pleaded guilty to manslaughter), were both originally charged with the murder of a man at a public housing complex in Granville on 14 August 2013. The victim was found dead in his unit by contractors, having sustained catastrophic blunt and sharp force injuries. Forensic evidence, CCTV footage, palm print analysis, and the evidence of a third participant placed both offenders at the scene during the fatal attack.

The attack was preceded by a minor incident earlier that evening: the victim had pinched the second offender on the bottom, apparently as a friendly gesture. The second offender, who was suffering from a psychotic illness at the time, interpreted this as a sexual advance and reacted with extreme anger. The three men who had been present then left the unit and, several hours later, returned with the first offender. The fatal assault was carried out by both offenders after the third participant left the scene.

The second offender was initially found unfit to stand trial due to his mental condition, but later recovered sufficiently to participate. He then pleaded guilty to manslaughter on the basis of substantial impairment by way of schizophrenia, a plea the Crown accepted. The first offender pleaded not guilty and was convicted of murder by a jury in October 2016. Both men came before the court for sentencing at the same time, in relation to different offences.

  • What sentence was appropriate for the first offender, convicted of murder after a jury trial, having regard to the objective seriousness of the offence and his personal circumstances?
  • What sentence was appropriate for the second offender, who pleaded guilty to manslaughter on the basis of substantial impairment by schizophrenia, having regard to his mental illness, remorse, and rehabilitative prospects?
  • Whether special circumstances existed in respect of the second offender justifying a departure from the statutory ratio between the non-parole period and the balance of term under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

The court assessed the objective seriousness of both offences as falling in the mid-range. The attack was unprovoked and spontaneous rather than premeditated, and each offender was found to have intended to inflict grievous bodily harm. The brutality of the assault was significant: the victim sustained extensive blunt and sharp force injuries, including a ruptured eye, broken ribs consistent with stomping, and skull fractures.

For the first offender, the court found no remorse and noted that he had lied to police and maintained his denial of involvement throughout, including at trial, before the jury rejected his account. His prospects of rehabilitation were nonetheless assessed as good, and the court treated him as a young person for the purposes of the sentencing exercise. No special circumstances were found in his case, as the non-parole period was already lengthy.

For the second offender, the court accepted genuine remorse and found that his grossly disproportionate reaction to the triggering incident was substantially attributable to his schizophrenia. His late guilty plea to manslaughter was entered as a partial defence to murder. The court found good prospects of rehabilitation but noted that continued supervision and monitoring of his mental condition after release would be important.

Special circumstances were found in the second offender's case, justifying a non-parole period outside the standard statutory ratio. The court determined that ongoing post-release supervision would serve a clear purpose given the nature and history of his mental illness.

Orders Made

  • First offender (murder): total sentence of 20 years' imprisonment, comprising a non-parole period of 15 years commencing 29 August 2013 and expiring 28 August 2028, with a balance of term of 5 years expiring 28 August 2033. Earliest eligible release date: 28 August 2028.
  • Second offender (manslaughter): total sentence of 7 years' imprisonment, comprising a non-parole period of 4 years commencing 19 December 2013 and expiring 18 December 2017, with a balance of term of 3 years expiring 18 December 2020. Earliest eligible release date: 18 December 2017.

Key Takeaways

  • A successful partial defence of substantial impairment by reason of mental illness (here, schizophrenia) can reduce a charge of murder to manslaughter, and the sentencing court will treat that mental illness as a significant mitigating factor bearing on both moral culpability and the structure of the sentence.
  • Where an offender's continued supervision after release is clearly warranted by the nature of a mental illness, special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may justify a non-parole period that departs from the standard statutory ratio.
  • Both offenders here were treated as young persons in the sentencing exercise, consistent with the principle that youth is a mitigating factor relevant to prospects of rehabilitation.
  • Spontaneous rather than premeditated violence does not remove an offence from the mid-range of objective seriousness where the attack was sustained, brutal, and involved an intention to inflict grievous bodily harm.
  • The Supreme Court affirmed that manslaughter, while covering a wide spectrum of criminal responsibility, always involves the unlawful taking of a human life, a factor that anchors the sentencing exercise regardless of other mitigating circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 18A(1) (murder), s 18A(2) (manslaughter), and s 316(1) (concealing a serious offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44(2) (standard non-parole period ratio)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- Apps v R [2006] NSWCCA 290
- Muldrock v The Queen [2011] HCA 39
- R v AEM [2002] NSWCCA 58
- R v Hearne [2001] NSWCCA 37