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Supreme Court 6 March 2020

R v Azzi (No 1)

[2020] NSWSC 988

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER VICTIM IMPACT STATEMENTS OBJECTIVE FEATURES OBJECTIVE SERIOUSNESS

Citation: R v Azzi (No 1) [2020] NSWSC 988
Court: Supreme Court of New South Wales
Date: 6 March 2020
Judge(s): Walton J

Background

The offender, a 43-year-old man, was charged with the murder of Lloyd Frederick Kennedy on 6 November 2016 at a residential premises in Lavington, NSW. He was also charged with using an offensive weapon with intent to commit intimidation at the same address on the same date. The offender had been in custody since the day after the incident, 7 November 2016.

Following a ten-day jury trial (a second trial, after an earlier jury was discharged), the offender was acquitted of murder but convicted of the alternative count of manslaughter. He was also convicted of the weapon and intimidation offence. In addition, he faced sentence for three further matters on a section 166 Certificate: possession of methylamphetamine, contravention of an Apprehended Violence Order, and carrying a cutting weapon.

The sentencing proceedings required Walton J to determine the appropriate sentence for manslaughter and the related offences, taking into account the facts as they could be inferred from the jury's verdict, the offender's significant criminal history, and a range of subjective and objective factors.

  • What conclusions could properly be drawn from the jury's verdict of not guilty of murder but guilty of manslaughter, including whether the verdict was based on lack of intent or excessive self-defence
  • What was the objective seriousness of the manslaughter offence, and how should it be positioned relative to the 25-year maximum penalty
  • What weight should be given to the offender's lengthy and significant criminal history, including its effect on personal deterrence and community protection
  • Whether the offender's subjective circumstances, including remorse, rehabilitation prospects, and personal history, justified any mitigation
  • Whether special circumstances existed warranting a departure from the statutory ratio between the non-parole period and the balance of term
  • How the sentences for the primary and secondary offences should be structured, including the degree of accumulation

Decision

Walton J accepted the submissions of both the Crown and defence that the jury's verdict of not guilty of murder but guilty of manslaughter most likely reflected a finding that the offender stabbed the deceased but lacked the requisite intention to kill or inflict grievous bodily harm. His Honour also accepted that the verdict was unlikely to have been based on excessive self-defence, noting that the conviction on Count 2 (the weapon and intimidation offence) and the single wound to the chest made that conclusion improbable.

In assessing objective seriousness, the Crown appropriately conceded that the case did not warrant the maximum 25-year penalty for manslaughter. The use of a knife resulting in a fatal chest wound was treated as a serious instance of the offence, with the objective circumstances weighed against the jury's implicit finding regarding intent.

The offender's substantial and lengthy criminal history was a significant factor. His Honour found this history was relevant to personal deterrence and the protection of the community, though consistent with established authority, it did not operate to increase the sentence beyond what was proportionate to the instant offence. The subjective circumstances, including any expression of remorse and prospects of rehabilitation, were considered, though the weight given to rehabilitation was moderated by the offender's recidivist background and the risk of institutionalisation.

On the question of special circumstances, Walton J declined to make a specific finding, concluding that the statutory ratio as applied to the overall sentence would produce an adequate supervisory period upon release. Partial accumulation was ordered for the manslaughter sentence over the weapon and intimidation sentence.

Orders Made

  • Count 2 (use of offensive weapon with intent to intimidate): convicted; non-parole period of 3 years and 9 months commencing 7 November 2016, expiring 6 August 2020; balance of term of 1 year and 3 months from 7 August 2020 to 6 November 2021
  • Manslaughter of Lloyd Frederick Kennedy: convicted; non-parole period of 7 years and 3 months commencing 7 November 2017, expiring 6 February 2025; balance of term of 2 years and 9 months from 7 February 2025 to 6 November 2027
  • Overall effective sentence: 11 years' imprisonment with a non-parole period of 8 years and 3 months commencing 7 November 2016
  • Eligible for release on parole: 6 February 2025; sentence to expire: 6 November 2027

Key Takeaways

  • Where a jury returns a verdict of not guilty of murder but guilty of manslaughter, the sentencing court must draw the most reasonable inferences available from that verdict, with input from both parties, to establish the factual basis for sentence.
  • A verdict of manslaughter need not have been based on excessive self-defence where the evidence and the jury's conduct during deliberations point more clearly to a lack of requisite intent as the operative reason.
  • Under the sentencing framework for manslaughter, the 25-year maximum penalty serves as a legislative yardstick against which all cases are measured, even where, as here, the Crown concedes the maximum is not warranted.
  • A significant and lengthy history of criminal convictions is a relevant consideration going to personal deterrence and community protection in manslaughter sentencing, though it cannot be used to inflate the sentence beyond what is proportionate to the current offence.
  • Declining to find special circumstances does not preclude recognition that a lengthy sentence will require significant supervision on release; the statutory ratio may itself provide an adequate supervisory period in such cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 24, 33B(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(1), 44(2), 166

Cases:
- Apps v R [2006] NSWCCA 290
- Baumer v The Queen (1988) 166 CLR 51
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Charbaji v R [2019] NSWCCA 28
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- CPW v R (2009) 195 A Crim R 149; [2009] NSWCCA 105
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Frigiani v R [2007] NSWCCA 81
- GG v R [2018] NSWCCA 280
- Hawkins v R (1993) 67 A Crim R 64
- Ibbs v The Queen (1987) 163 CLR 447
- Imbornone v R [2017] NSWCCA 144
- Kentwell v R (No 2) [2015] NSWCCA 96
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McDowall v R [2019] NSWCCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Ryan v The Queen (1982) 149 CLR 1
- Veen v The Queen (No 2) (1988) 164 CLR 465