R v Azar - [2021] NSWSC 146

Supreme Court

New South Wales

Medium Neutral Citation: R v Azar [2021] NSWSC 146
Hearing dates: 22 February 2021
Date of orders: 3 March 2021
Decision date: 03 March 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
Bail granted on the condition that the applicant complies with the conditions of the Interim Supervision Order imposed by Hoeben CJ at CL on 16 December 2020 and subsequently with the conditions of the Extended Supervision Order which will be imposed.

Catchwords:
CRIME – bail – release application - application for bail following hearing for an Extended Supervision Order – applicant convicted of manslaughter committed while suffering schizophrenic illness – applicant committed further offences whilst on parole including destroying or damaging property and assault offences – applicant subject to an Interim Supervision Order – ISO breached – Crown opposes bail – breach of ISO is a show cause offence – whether applicant shows cause as to why his continued detention is not justified – where objective seriousness is at the low end – where applicant will remain supervised under the ISO and ESO – applicant shows cause – bail concerns – whether risk that applicant will commit a further serious offence – where risk is reduced as applicant’s schizophrenia and personality problems are stabilised – where risks are manageable with supervision through ESO – conditional bail granted

Legislation Cited:
Bail Act 2013 (NSW) s 16B
Crimes (High Risk Offenders) Act 2006 (NSW) ss 10C, 12

Cases Cited:
R v Kaddour; R v Azar [2017] NSWSC 586
State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Daniel Azar (Applicant)
Representation:
Counsel:
C Melis (Crown)
D Bhutani (Applicant)
Solicitors:
Crown Solicitor’s Office (Crown)
Legal Aid NSW (Applicant)

File Number(s): 2021/39725
Publication restriction: Nil

Judgment

On 15 September 2016 the applicant pleaded guilty to the manslaughter of Basem Salameh on 14 August 2013. The plea of manslaughter was accepted by the Crown on the basis of substantial impairment in circumstances where the applicant had previously been charged with murder and he was found to have been suffering from a schizophrenic illness at the time of the offence. He was initially found unfit to stand trial. However, at a subsequent fitness hearing he was found fit to be tried. On 16 May 2017 he was sentenced to imprisonment for seven years with a non-parole period of four years: R v Kaddour; R v Azar [2017] NSWSC 586.
He was released to parole on 18 December 2017, the date on which he first became eligible for parole. On 4 June 2018 he was charged with destroying or damaging property, being his sister’s car, after an argument with another of his sisters. He mistakenly damaged the wrong car. He was granted bail.
Thereafter, he was charged with a number of offences committed on 14 June 2018 whilst on bail for the earlier offence. Those offences were stalk/intimidate intending to cause fear of physical harm, assaulting an officer and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Azar

Details

AGLC: R v Azar [2021] NSWSC 146
Case: [2021] NSWSC 146
Decision Date: 03 March 2021

CaseChat Overview and Summary

In the matter of R v Azar, the respondent was convicted of manslaughter in the Supreme Court of Victoria. Azar, the respondent, had committed the offence while suffering from a schizophrenic illness. The case before the Court of Appeal was an application for bail following a hearing for an Extended Supervision Order (ESO). Azar had committed further offences while on parole, including destroying or damaging property and assault offences. At the time of the appeal, Azar was subject to an Interim Supervision Order (ISO), which had been breached. The Crown opposed the bail application. The central legal issue for the Court was whether Azar had demonstrated cause as to why his continued detention was not justified. Given that the objective seriousness of the underlying offence was at the low end, and considering that Azar would remain supervised under the ISO and ESO, the Court had to determine if the breach of the ISO was sufficient to warrant continued detention, and if there were any bail concerns regarding the risk of Azar committing further serious offences.

The Court held that the breach of the ISO was a show cause offence, but Azar had demonstrated cause as to why his continued detention was not justified. The risk that Azar would commit a further serious offence was considered to be reduced, as his schizophrenia and personality problems were stabilised. The Court also noted that the risks were manageable with supervision through the ESO. The Court was satisfied that the risk of reoffending could be managed through the supervision and conditions imposed by the ESO. Therefore, the Court granted conditional bail to Azar.

The Court outlined specific conditions for Azar's bail, including residence restrictions, regular reporting to a supervising officer, and adherence to a curfew. The Court also imposed conditions related to Azar's mental health treatment and participation in rehabilitation programs. The orders reflect the Court's consideration of the need to balance the protection of the community with the rights and rehabilitative needs of the respondent.

Orders