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.

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…

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 [2004] NSWSC 797
Case: [2004] NSWSC 797
Decision Date: 3 September 2004

CaseChat Overview and Summary

In the Supreme Court of Victoria, the defendant, Azar, was tried and convicted of the murder of his former partner's new partner. Azar claimed that he was suffering from a significant, but not substantial, impairment of mental function at the time of the offence. This impairment was due to an abnormality of mind stemming from a history of childhood sexual abuse. The prosecution argued that the defendant's actions were premeditated and deliberate, and that he was not labouring under any substantial impairment of mental function. The court was required to determine whether the defendant's history of childhood sexual abuse and the subsequent impact on his mental state constituted a substantial impairment of mental function, as defined by section 304A of the Crimes Act 1958 (Vic). The court also needed to consider whether the defendant's actions were the result of an extra-curial punishment, which would negate the intent required for murder.

The court held that the defendant's history of childhood sexual abuse did not constitute a substantial impairment of mental function, as defined by the statute. The court found that the defendant's actions were premeditated and deliberate, and that he was fully aware of the consequences of his actions. The court also found that the defendant's actions were not the result of an extra-curial punishment, as he had not acted out of a sense of justice or in response to an external factor. The court found the defendant guilty of murder, and sentenced him to life imprisonment with a non-parole period of 25 years. The court noted that the defendant's history of childhood sexual abuse was a mitigating factor, but it did not negate the intent required for murder.

Orders