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Supreme Court 19 May 2023

R v Hachem

[2023] NSWSC 535

HomicideFraud & dishonestyDomestic & family violence
CRIMINAL LAW SENTENCE MURDER OFFENDER FOUND GUILTY AFTER TRIAL DOMESTIC VIOLENCE OFFENCE VICTIM IMPACT STATEMENTS

Citation: R v Hachem [2023] NSWSC 535
Court: Supreme Court of New South Wales
Date: 19 May 2023
Judge: Wright J

Background

The offender was convicted by jury on 26 July 2022 of the murder of Samah Baker, his former intimate partner, in the early hours of 4 January 2019. He removed her body from the Parramatta area in the boot of his mother's car. The cause of death and the location of her remains were never established.

The offender and the deceased had known each other since working together at a Macquarie Park company, and had been in an intimate relationship from 2015. That relationship was characterised by the offender's jealousy and, on several occasions, conduct that was either confirmed or strongly suggested to involve physical violence toward the deceased.

At sentencing, the offender also asked the court to take into account two offences of dishonestly obtaining a financial advantage by deception (under s 192E(1)(b) of the Crimes Act 1900 (NSW)), which were listed on a Form 1. The court agreed it was appropriate to do so.

  • What facts could be found consistently with the jury's verdict of murder, and to what standard?
  • What weight should be given to the history of domestic violence between the offender and the deceased as an aggravating factor?
  • How should the failure to disclose the location of the victim's body be treated at sentencing?
  • What mitigating factors, if any, applied given the offender's personal circumstances, including mental health considerations?
  • Whether the offence should be recorded as a domestic violence offence on the criminal record.
  • How to apply the standard non-parole period of 20 years for murder as a sentencing guidepost.

Decision

Wright J undertook detailed fact-finding, consistent with the jury's verdict, applying the standard that facts adverse to the offender required proof beyond reasonable doubt, while facts in the offender's favour needed only to be established on the balance of probabilities. The court found that the offender killed the deceased in the context of his anger about her relationship with another man, drawing on a pattern of extreme jealousy demonstrated across several incidents from 2015 onwards.

The court identified the offence as a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The relationship between the offender and the deceased constituted a domestic relationship, making the commission of the murder a domestic violence offence and an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The failure to disclose the location of the deceased's body was treated as a significant aggravating matter. The court noted the compounding distress caused to the victim's family by their inability to recover her remains for burial or mourning.

The court found no mental health issues causally connected to the offending and noted the absence of any prior criminal history as a mitigating factor. The court did not consider a life sentence warranted, but reflected the gravity of the offence, the domestic violence context, and the undisclosed disposal of the body in calibrating the sentence. A non-parole period of 18 years was imposed on a total sentence of 24 years.

Orders Made

  • The offender is sentenced for the murder of Samah Baker (taking into account the Form 1 offences) to a non-parole period of 18 years commencing 8 March 2019 and expiring 7 March 2037, with a balance of term of 6 years expiring 7 March 2043.
  • The offence of murder is to be recorded on the offender's criminal record as a domestic violence offence pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • The earliest date on which the offender could be released on parole is 8 March 2037.
  • The offender was warned that, as a person convicted of a serious violence offence under the Crimes (High Risk Offenders) Act 2006 (NSW), the State may apply prior to sentence expiry for continued detention or an extended supervision order.

Key Takeaways

  • Where an offender is found guilty after trial, the sentencing court must find facts consistent with the jury's verdict: facts adverse to the offender must be established beyond reasonable doubt, but facts in the offender's favour need only be established on the balance of probabilities, following The Queen v Olbrich (1999) and GAS v The Queen (2004).
  • A pattern of jealousy and prior conduct suggesting violence in an intimate relationship can inform the court's assessment of the circumstances of the offending, even where individual earlier incidents are not established beyond reasonable doubt as deliberate assaults.
  • Failure to disclose the location of a victim's body operates as a meaningful aggravating consideration at sentencing, compounding the harm caused to the victim's family beyond the death itself.
  • Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the court is required to direct that an offence be recorded as a domestic violence offence where the relevant relationship and conduct thresholds are met, with consequences for the offender's criminal record.
  • The standard non-parole period of 20 years for murder functions as a statutory guidepost, not a mandatory minimum; the court may depart from it where the full range of sentencing factors warrants a different result.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18 (murder), s 192E (dishonestly obtaining financial advantage by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)–(3), 22A, 30E, 32–35, 44(2), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 11, 12
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes Legislation Amendment (Victims) Act 2018 (NSW)

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- GAS v The Queen (2004) 217 CLR 198
- Droudis v The Queen (2020) 103 NSWLR 806
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 14
- Lloyd v R [2022] NSWCCA 18
- Cherry v R [2017] NSWCCA 150
- R v JD [2018] NSWCCA 233
- Patsan v R [2018] NSWCCA 129
- R v Edwards (No 3) [2019] NSWSC 1815