R v Azar

[2004] NSWSC 797

CITATION:	R v Azar [2004] NSWSC 797
HEARING DATE(S):	10/05/04 - 14/05/04 17/05/04 - 21/05/04 24/05/04 - 27/05/04 31/05/04 1/06/04 - 2/06/04 4/06/04 13/08/04
JUDGMENT DATE:	3 September 2004
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Sentenced to imprisonment for 17 years commencing on 22 August 2001 and expiring on 21 August 2018, with a non parole period of 12 years. Eligible for release on parole on 22 August 2013.
CATCHWORDS:	CRIMINAL LAW - murder - significant but not substantial impairment through abnormality of mind - shooting after childhood sexual assault - extra-curial punishment
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Previtera (1997) 94 A Crim R 76 R v Allpass (1993) 72 A Crim R 561 R v Daetz (2003) 139 A Crim R 398
PARTIES :	Regina Joseph Melhem Azar
FILE NUMBER(S):	SC 70090/02
COUNSEL:	M Hobart (Crown) B M Niven (Acc)
SOLICITORS:	J Walker - DPP (Crown) K Robinson - LAC (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 3 September 2004

70090/02 REGINA v JOSEPH MELHEM AZAR

JUDGMENT ON SENTENCE

1 KIRBY J: Joseph Melhem Azar was charged with having murdered Sami Sarraf on 23 June 2001. He pleaded not guilty to murder, but guilty of manslaughter. He acknowledged having shot Sami Sarraf. He claimed that at the time of the shooting he was substantially impaired by an abnormality of mind. The jury, however, was not persuaded. They returned a verdict of guilty of murder.

2 It remains for me to pass the sentence. I must first determine the facts relevant to the sentencing discretion. They must be determined in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Azar, it is enough that they should be proved on the balance of probabilities.

3 The fundamental issue in the trial concerned Mr Azar's state of mind at the time of the shooting. Why did he shoot Sami Sarraf? His criminality is to be judged by reference to that issue. Was it, as the Crown alleged, an act of revenge, premeditated and the more serious because he had used a firearm (s21A(2)(c) Crimes (Sentencing Procedure) Act 1999). Was it, on the other hand, the action of someone suffering from a psychiatric condition, significantly impaired although not substantially impaired by an abnormality of mind?

4 The circumstances in which the incident occurred are capable of providing insight into that issue.

The incident.

5 Shortly after midnight on Saturday 23 June 2001, Mr Azar was driven to the home of Sami Sarraf at Guildford. He knocked at the door a number of times. Sami Sarraf was at home with his children and nephew, who was visiting from Lebanon. The children were young. The oldest, John, was 15 years old.

6 Mr Sarraf went to the door. He was confronted by Mr Azar. Mr Sarraf retreated. Mr Azar was carrying a pistol with seven bullets. He followed Mr Sarraf into the house, firing at him. Three bullets struck the victim. One penetrated the brain. All seven bullets were discharged.

7 Mr Azar then turned to leave. He was intercepted by Mr Sarraf's 15 year old son, John. There was a struggle. However, Mr Azar managed to escape. He fled through the front door.

8 John returned to the lounge room. He saw at once that his father had been shot through the forehead. He was still alive but grievously wounded. He assumed that he was dying. Careless for his own safety, and exhibiting extraordinary courage, John then left the house in pursuit of his father's assassin. He ran down the street, tackling Mr Azar and wrestling him to the ground.

9 Mr Azar was still holding the gun. John could not know whether any bullets remained in the chamber. He took hold of the gun and used it to subdue Mr Azar, striking him on the head a number of times. He acknowledged that he was angry. He kept striking Mr Azar until he was stopped by the deceased's nephew, who arrived somewhat later.

10 The incident woke the neighbourhood. A number of residents came out of their homes. Several rang the emergency number. Within minutes the police arrived, and minutes after that an ambulance. A number of witnesses noticed that Mr Azar was wearing gloves. They were latex surgical gloves. John made that observation, which he related to police that night, within hours of the incident. His brother, Adam, also saw Mr Azar's gloved hand as the pistol was discharged. The gloves were seen by the nephew from Lebanon. The police officer who attended to Mr Azar as he lay on the street noticed that he was wearing gloves. They were similar to the gloves she was wearing. Indeed she noticed him remove the gloves and place them in his pocket. A Police Inspector also noticed that Mr Azar was wearing gloves. A paramedic ambulance officer, who examined Mr Azar's hands for the purposes of inserting a cannula, noticed what he termed "the pruning effect" upon the skin which occurs immediately after latex gloves are removed. Mr Azar said he could not remember the events surrounding the shooting. He was not able to say whether he was wearing gloves or not.

11 I am satisfied beyond reasonable doubt that Mr Azar was wearing gloves. Whilst the gloves were never found, it was a confused crime scene. There were opportunities to dispose of the gloves there or later at the hospital.

Mr Azar's state of mind.

12 Why, then, did Mr Azar shoot Mr Sarraf? Mr Azar said that when he was six or seven, and still living in Lebanon, he was sexually assaulted by the deceased, who was then aged about 14. He said that the assault had a profound effect upon him. It made him question his own sexuality. He felt deeply ashamed and believed that in some way he was at fault.

13 He came to Australia with his family when he was nine. Mr Sarraf also came to Australia. Indeed, there was a link between the two families through marriage. Mr Azar said that, because of the shame, he told no-one. Nonetheless, he believed that the episode caused him to behave in ways which he now recognised were immature. He drank too much. He flirted with women, as if to prove his sexuality.

14 Ultimately, on the account he gave to the jury, he was imprisoned for receiving in 1991 for a term of four years with a non parole period of three years. Whilst in prison, it came to his wife's notice that he had been having an affair with another woman. His wife resolved to seek a divorce. This caused him anguish, such that he saw a prison psychologist or counsellor. He questioned how he had arrived at this point in his life. For the first time he disclosed the incident during his childhood and the way in which it had haunted him throughout his life. According to his testimony, arrangements were made for him to make the same disclosure to his brother, whom he trusted. He also told his wife.

15 Ultimately, in the case presented to the jury, he reunited with his wife after his release from gaol. He resumed his business as a car mechanic. Unfortunately, he had, in the meantime, become addicted to heroin. He was able to conceal that addiction from his wife for a time. However, she eventually became aware of it. She helped him in his struggle with that drug. From time to time he relapsed. With his wife's help he began to address his drug problem.

16 Then, according to Mr Azar's account, corroborated by his wife, an episode occurred six or so months before the murder, which led to his decline. By chance, whilst visiting his sister, he again encountered Sami Sarraf. Their meeting was brief. They exchanged greetings. The effect upon Mr Azar was profound. He returned to heroin. He began using it intravenously. He plundered the cash reserves of the business. He became impossible to live with. Indeed, he moved out of the family home to accommodation above his workshop. From there he went to his sister's home.

17 Aspects of Mr Azar's account were strongly challenged by the Crown, including the "incident" in Lebanon. One, of course, does not have the victim's version of these events. Nonetheless, as a matter of probability, I am satisfied that Mr Azar's description is broadly accurate. Having said that, I do not accept that the episode as a child, whatever the detail, is a complete explanation for Mr Azar's aberrant behaviour thereafter. It is part of the explanation. It combined with other aspects of his character to produce that behaviour.

18 In the days before the murder, Mr Azar's sister endeavoured to care for him as he withdrew from heroin. She took him to a number of doctors and to RPA Hospital more than once. At 11.59 pm on Thursday 21 June 2001 (that is, 24 hours before the murder), Mr Azar was taken to the Emergency Department of the RPA Hospital. He was, according to the hospital records, treated for heroin withdrawal. He was discharged at 6.00 am the following morning into his sister's care.

19 Mr Azar said that he spent the rest of the day recovering. The person who supplied him with drugs came to his sister's home to see him. That person was accompanied by another male. Mr Azar had heroin during the course of the day. When he had that heroin and the size of the dose are uncertain. It is also uncertain whether, at the time of the shooting, he was suffering from withdrawal, although he may have been experiencing some symptoms. I believe, however, that is unlikely.

20 On the Friday evening, hours before the shooting, Mr Azar watched television with his companions. A film, "Sleepers", was screened. The film included graphic scenes of child sexual abuse. Mr Azar said that it had a profound emotional impact upon him. He had to avert his eyes. He was embarrassed to show his companions the emotions he was experiencing. He determined that he would go to Mr Sarraf's home at Guildford to confront him. He travelled with the other two males in their car. On his account, one of them handed him a gun "for his own protection" as he was getting out of the car.

21 There were difficulties in accepting Mr Azar's account. They may explain the jury's rejection of the partial defence which he raised. First, Mr Azar's sister lived at Marrickville. Mr Sarraf lived some distance from Marrickville at Guildford. The film finished some time before 11.36 pm. Mr Azar said that he left well before the end. The murder was at about 12.14 am. On any view, there was a significant lapse in time (which may have been as much as several hours) between the trigger which he identified, being the movie, and the shooting. Secondly, I believe it unlikely that Mr Azar was handed the gun moments before he left the car. The fact that he was wearing latex gloves suggested planning. The gun was probably a further aspect of that planning. However such a finding cannot be made beyond reasonable doubt. I cannot therefore make any finding in respect of the gun. Thirdly, but for the speed and extraordinary courage of the victim's son, Mr Azar may well have got away. It would then have been a puzzling and professional slaying for which there was no apparent motive.

22 The Crown urged that, even were I to accept the probability of an incident during Mr Azar's childhood, involving Mr Sarraf, the lapse in time as he journeyed from Marrickville to Guildford, and the premeditation shown by wearing gloves, demonstrated that his true motive was revenge.

23 I do not doubt that revenge played a part in his motivation. However, it was revenge seen through the distorted prism of Mr Azar's psychiatric state. Although he was not substantially impaired by reason of an abnormality of mind, I believe that he was significantly impaired. Dr Nielssen and Dr Allnutt, who each gave evidence in the trial, accepted that Mr Azar was suffering from a depressive illness. They accepted that the graphic scenes in the film "Sleepers" would be likely to reawaken the childhood experience such that, when presented with Mr Sarraf, whatever his intentions before that moment, his ability to exercise restraint or self control would be significantly impaired. Although unquestionably, at the time of the shooting, he intended to kill Sami Sarraf, it is not possible to say beyond reasonable doubt when that intention was formed.

24 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. I have been furnished with a Victim's Impact Statement by John Sarraf. He describes with great poignancy his anguish and that of his family following the death of his father. He exhibits in his statement the same extraordinary courage that he showed on the night. He has since assumed many of his father's responsibilities towards his younger brothers. One can only sympathise with his anguish and that of the family at their loss (cf s21A(2)(g) Crimes (Sentencing Procedure) Act 1999). However, I must, of course, deal with such material in a manner consistent with the principles identified in R v Previtera (1997) 94 A Crim R 76 at 85.

25 Nonetheless, although Mr Azar committed a brutal and awful crime which has profoundly affected the young children of the deceased, his criminality is significantly reduced by reason of the circumstances which I have described.

Subjective case.

26 Mr Azar was born on 2 January 1960. He was 41 years old when these events occurred. He is now 44 years old. Although he and his wife divorced in 1992, they came back together after his release from prison. They regard each other as husband and wife. They have two grown children.

27 Mr Azar has a criminal record (s21A(2)(d)). He was convicted on a number of occasions for offences of dishonesty when he was a young man. On 5 July 1985 he received a two year suspended sentence for larceny and receiving. On 20 September 1991 he was, as mentioned, sentenced to four years imprisonment with a minimum term of three years for receiving. On 25 January 2002, he was convicted of knowingly taking part in the supply of a prohibited drug, the offence having been committed in March 1996. When sentenced for that offence, Mr Azar was already in custody, having been arrested after the murder of Mr Sarraf. He was sentenced to imprisonment for a minimum term of 14 months, commencing 25 June 2001 and concluding on 24 August 2002, at which time he would be eligible for parole (during a further period of ten and a half months).

28 Mr Azar qualified as a mechanic and at one time had a successful business. The circumstances giving rise to the present offence are unusual. They will obviously not recur. I regard Mr Azar, by reason of maturity, and his history, as having reasonable prospects of rehabilitation.

29 He remains, nonetheless, vulnerable to drug abuse. He would benefit from supervision, such that a finding of special circumstances is warranted. However, the division of the sentence in accordance with the statutory ratio will already provide a significant period of supervision, such that the adjustment for special circumstances is small.

Contrition.

30 Mr Azar did not give evidence on sentence. There is no evidence of contrition, apart from apologies which he repeatedly offered to the victim's son on the roadway at Guildford, as he was being held, pending the arrival of the police. I do not really regard that as evidence of contrition.

Injuries to Mr Azar.

31 Counsel for Mr Azar drew attention to the injuries inflicted upon Mr Azar immediately after the shooting, when he was repeatedly struck with a pistol by John. He lost a good deal of blood. No criticism of John Sarraf is made. However, it was said that in sentencing Mr Azar he is entitled to have those injuries taken into account, as explained by Gleeson CJ in R v Allpass (1993) 72 A Crim R 561: (at 566/7)

"We also take into account, as the Crown concedes we are entitled to do, the extra-curial punishment that has already been meted out to the respondent by others, both before and after the sentencing proceedings."

32 In R v Daetz (2003) 139 A Crim R 398, James J (Tobias JA and Hulme J agreeing), having reviewed the authorities, said this: (at para 62)

"62. I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight."

33 Here, it was not suggested that the actions of John Sarraf were unreasonable. Mr Azar had just shot his father. He still had a gun. The gun had to be taken from him and he had to be subdued until the arrival of the police. However, Mr Azar then received a number of blows to the head. Unlike Daetz the consequences were short lived. There was no fracture to his skull. There was no permanent injury. Whilst it is a matter that should perhaps be taken into account, it should be given little weight.

The commencing date.

34 Mr Azar was arrested on 23 June 2001 and taken into custody. Ordinarily his sentence would begin from that date. However, he had outstanding a drug matter from March 1996. The sentence in respect of that matter commenced on 25 June 2001. It is difficult to understand why it did not commence on 23 June 2001. Mr Azar was in custody, even though in hospital. However that may be, it seems to me inappropriate in the circumstances that the sentence for murder should be wholly concurrent with the sentence in respect of the drug matter. The sentence I am about to impose should be delayed three months, commencing on 22 August 2001.

35 Joseph Melhem Azar I sentence you to imprisonment for 17 years commencing on 22 August 2001 and expiring on 21 August 2018, with a non parole period of 12 years. You will be eligible for release on parole on 22 August 2013.

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Last Modified: 09/06/2004