Citation: R v Safarjalani (No 2) [2019] NSWSC 105
Court: Supreme Court of New South Wales
Date: 15 February 2019
Judge(s): Walton J
Background
The offender was tried before a jury on a charge of murder arising from the fatal shooting of a 45-year-old man at Petersham on 4 March 2014. The deceased was shot five times, including twice in the head. The jury returned a guilty verdict on 4 October 2018, following a trial that commenced on 10 September 2018.
The Crown case proceeded on two alternative bases: that the offender either personally fired the fatal shots, or participated in the killing as part of a joint criminal enterprise. Because the jury verdict did not resolve which of those two bases underpinned the conviction, the sentencing judge was required to determine several disputed facts before assessing the objective seriousness of the offence.
The offender had also pleaded guilty to an unrelated importation charge in separate proceedings. That matter was left for the District Court to address on totality grounds.
Legal Issues
- Whether a life sentence was warranted under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or whether a finite term was appropriate
- How to assess the objective seriousness of the offence given three disputed factual questions: whether the offender personally shot the deceased; whether planning was established; and whether any motive was established
- How victim impact statements should be received and weighted at sentencing
- Whether special circumstances existed to justify departing from the standard 3:1 non-parole to balance-of-term ratio under s 44(2) of the Sentencing Act
- The appropriate weight to give to prospects of rehabilitation, prior criminal history, and personal deterrence
Decision
Walton J determined that a finite term of imprisonment, rather than a life sentence, was appropriate. The Crown did not seek to establish that the level of culpability was so extreme as to warrant life imprisonment under s 61(1), and the judge was satisfied that a finite term was appropriate notwithstanding the objective seriousness of the offence.
On the disputed factual issues, the judge applied the sentencing principle that findings adverse to the offender must be established by the Crown beyond reasonable doubt, while facts beneficial to the offender need only be established on the balance of probabilities: R v Olbrich (1999) 199 CLR 270. After resolving those disputed matters, the judge assessed the objective seriousness of the offence and concluded that it was substantially above the mid-range.
The victim impact statement from the deceased's sister, given on behalf of herself and their mother, was received without objection. Walton J referred to the 2014 amendments to the Crimes (Sentencing Procedure) Act and the common law obligation to recognise the harm suffered by victims, noting that the statement could be considered as an aspect of harm done to the community. The statement described severe and ongoing psychological consequences for the deceased's family.
On rehabilitation and personal deterrence, the judge found that the prospects of rehabilitation were low. Three factors supported that conclusion: a prior record of serious violence, continued offending after the murder, and covert recordings indicating an absence of remorse. No finding of special circumstances was made, as the statutory non-parole period was found to produce a supervision period adequate to manage the risk the offender posed upon release.
Orders Made
- Non-parole period of 20 years, commencing 13 September 2017 and expiring 12 September 2037
- Balance of term of 6 years and 8 months, commencing 13 September 2037 and expiring 12 May 2044
- Eligible for release on parole on 12 September 2037
Key Takeaways
- Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the burden of establishing that a life sentence is the only appropriate disposition rests with the Crown; where the Crown does not seek to discharge that burden, a finite term is available even for a murder of high objective seriousness.
- Disputed facts at sentencing are resolved according to the standard articulated in R v Olbrich: facts adverse to the offender require proof beyond reasonable doubt, while facts favourable to the offender need only be proved on the balance of probabilities.
- Following the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW), a victim impact statement from a family member may be considered as evidence of harm done to the community, provided the prosecutor applies for it to be so received and the court considers it appropriate.
- No finding of special circumstances is required where the sentence length already produces a balance of term sufficient for adequate post-release supervision, even where the offender presents a real risk of further violent offending.
- Low prospects of rehabilitation, a history of serious violence, continued offending after the index offence, and an absence of remorse each support a substantial emphasis on personal deterrence in the sentencing calculus.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 44(2), 54A, 54B, 61(1)
- Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)
Cases
- Cheung v R (2001) 209 CLR 1
- Isaacs v R (1997) 41 NSWLR 374
- KR v R [2012] NSWCCA 32
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis approach to sentencing)
- Muldrock v The Queen (2011) 244 CLR 120 (role of standard non-parole period)
- Munda v Western Australia (2013) 249 CLR 600 (moral culpability; vindication of victims)
- Porter v R [2008] NSWCCA 145 (victim impact at common law)
- R v Fahda [2013] NSWCCA 86
- R v Gatt [2018] NSWSC 1991
- R v Olbrich (1999) 199 CLR 270 (standard of proof for disputed sentencing facts)
- R v Scott [2005] NSWCCA 152 (proportionality)
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- R v Taufahema [2014] NSWSC 833
- R v Tuala [2015] NSWCCA 8 (victim impact statements)