R v Azzi (No 1)

[2020] NSWSC 988

Supreme Court

New South Wales

Medium Neutral Citation:

R v Azzi (No 1) [2020] NSWSC 988

Hearing dates:

11 February 2020

Date of orders:

6 March 2020

Decision date:

06 March 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The overall sentence is 11 years’ imprisonment, with a non-parole period of 8 years and 3 months.

Catchwords:

CRIMINAL LAW – sentence – manslaughter – victim impact statements – objective features – objective seriousness – aggravating factors – mitigating features – subjective features – significant and lengthy history of criminal convictions – protection of community – personal deterrence – remorse – prospects of rehabilitation – general deterrence – specific deterrence – maximum penalty – non-parole period – special circumstances – orders

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

in Ryan v The Queen (1982) 149 CLR 1

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 at

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Munro v R [2006] NSWCCA 350

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Perkins v R [2018] NSWCCA 62

Pfitzner v R [2010] NSWCCA 314

R H McL v The Queen (2000) 203 CLR 452

R v Appleby (Unreported, Supreme Court of New South Wales, 18 July 1997)

R v Barbetta [2008] NSWSC 688

R v Blacklidge (Unreported, New South Wales Court of Criminal Appeal, 12 December 1994)

R v Booth [2014] NSWCCA 156

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Dodd (1991) 57 A Crim R 349

R v Elfar [2003] NSWCCA 358

R v Fazah [2014] NSWSC 231

R v Geddes (1936) 36 SR (NSW) 554

R v Gierczynski [2013] NSWSC 1870

R v Halloun [2014] NSWSC 1705

R v Hines (No 3) [2014] NSWSC 1273

R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184

R v Ibrahimi [2005] NSWCCA 153

R v Irwin [2019] NSWCCA 133

R v Isaacs (1997) 41 NSWLR 374

R v JK [2018] NSWSC 250

R v Loveridge [2014] NSWCCA 120

R v MacDonald (Unreported, New South Wales Court of Criminal Appeal, 12 December 1995)

R v McDonald [2019] NSWSC 858

R v McGourty [2002] NSWCCA 335

R v MD, BM, NA, JT (2005) 156 A Crim R 372; [2005] NSWCCA 342

R v Palu (2002) 134 A Crim R 174 at 185; [2002] NSWCCA 381

R v Qutami [2001] NSWCCA 353

R v Scott [2005] NSWCCA 152

R v Winefield [2011] NSWSC 337

R v York [2007] NSWSC 1470

Sheehan (No 2) v R [2006] NSWCCA 332

Sumpton v R [2016] NSWCCA 162

SW v R [2013] NSWCCA 103

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Veenv The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Regina (Crown)
Adam Jay Azzi (Offender)

Representation:

Counsel:
P Kerr (Crown)
E Wilson SC (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Pogson Cronin Solicitors (Offender)

File Number(s):

2016/332719

REMARKS ON SENTENCE

1. HIS HONOUR: By an indictment dated 21 January 2019, Adam Jay Azzi (“the offender”) was charged with two counts, that he:

1. on 6 November 2016, in Lavington in the State of New South Wales, did murder Lloyd Fredrick Kennedy (“the deceased”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Count 1”); and

2. on 6 November 2016, at the same address, did use an offensive weapon with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act (“Count 2”).

2. The offender pleaded not guilty to both counts. On 11 October 2019, following a 10 day trial before a jury of 12 (an earlier jury was discharged on Tuesday 24 September 2019), the offender was found not guilty of Count 1, but guilty of the available alternative count of manslaughter (see ss 18 and 24 of the Crimes Act) and guilty of Count 2.

3. The offender also faces sentence for three offences contained on a s 166 Certificate:

1. possession of a prohibited drug, namely, 0.86 grams of methylamphetamine;

2. contravention of an Apprehended Violence Order in favour of Lisa Restall, by being at her home; and

3. carrying a cutting weapon, namely, a box cutting implement.

4. The home referred to in the second item in the s 166 Certificate was the premises at which Ms Restall resided at Lavington. That residence shall hereafter be referred to as “the premises”.

5. The offender was 43 years of age at the time of the offences. He has been in custody since 7 November 2016.

6. In arriving at the offender’s sentence, the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) must be borne in mind.

7. The maximum penalty for the offence of manslaughter is imprisonment for 25 years: s 24 of the Crimes Act. There is no prescribed standard non-parole period for this offence.

8. The maximum penalty for an offence is reserved for the gravest type of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452; see also: R v Dodd (1991) 57 A Crim R 349 (“Dodd”) at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 (“Geddes”) at 556.

9. That does not mean that a lesser penalty must be imposed if it be possible to envisage a more serious case; ingenuity can always conjure up a case of greater iniquity. A case which imposes the maximum penalty offends this principle only if the case is recognisably outside the gravest category: Veenv The Queen (No 2) (1988) 164 CLR 465 (“Veen”) at 478; see also Hawkins v R (1993) 67 A Crim R 64 at 67.

10. In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated at [149]:

[149] In R v Harris Wood CJ at CL (with whom Giles JA and James J agreed) said:

[84] The features required for qualification in the "worst case category" were defined in R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) where it was said (at 7):

"... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)..."

(In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20], reference was made to the term "so grave as to warrant the maximum prescribed penalty").

11. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian"), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]):

[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. …

12. The Crown properly accepted that this matter does not constitute a case in which the maximum penalty for manslaughter is appropriate.

13. The maximum penalty for the s 33B(1)(a) offence on trial on indictment is 12 years. There is no prescribed standard non-parole period. It may be noted the offence of intimidation is a serious indictable offence, carrying a maximum sentence of 5 years’ imprisonment and/or a fine of not more than $5,500, pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

14. The Crown properly accepted that any sentence for this offence will likely be subsumed within the sentence for the primary offence.

15. I turn to the jury verdict, with respect to murder and manslaughter.

16. It must be accepted, as the Crown submitted, the precise reason for the jury reaching their conclusion with respect to Count 1 is not known. Nor is the reason for the alternative verdict.

17. The matter proceeded from an agreed statement of facts that the deceased died on 6 November 2016 as a result of injuries sustained where his chest was penetrated by a knife on that day at the premises. The offender admitted he was present with the deceased and a witness, Nathan Vercoe, at the time the chest of the deceased was penetrated by the knife causing his death. The evidence called in the proceedings included the evidence of Mr Vercoe, who was cross-examined.

18. The jury were instructed that in order to establish Count 1, the Crown must prove beyond reasonable doubt:

1. that it was the deliberate act of the accused that caused the death of the deceased;

2. the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm upon him; and

3. the act causing the death of the deceased was not carried out in self-defence.

19. As to manslaughter, the jury were instructed as follows:

1. Manslaughter arises as an alternative charge when the charge of murder is laid and the second element in murder, the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm upon him, is not established to your satisfaction beyond reasonable doubt.

2. The offence of manslaughter may be committed in a number of ways but on the Crown case in this matter the elements are:

1. that the death of the deceased was caused by an act of the accused;

2. the accused intended to commit the act that caused death;

3. the act of the accused was unlawful; and

4. the act of the accused was dangerous.

3. If you are satisfied of these elements you must determine whether the Crown has proved beyond reasonable doubt that the act causing the death of the deceased was not carried out in self-defence.

20. As to self-defence, the jury were instructed as follows:

1. There are two parts to self-defence and in relation to both of them the Crown bears the burden of proof. It is not for the accused to prove that he was acting in self-defence. It is for the Crown to prove that he was not. This involves two questions:

1. Has the Crown proved beyond reasonable doubt that the accused did not believe at the time of the stabbing of the deceased that it was necessary to do what he did in order to defend himself?

2. Has the Crown proved beyond reasonable doubt that the stabbing by the accused was not a reasonable response in the circumstances as he perceived them?

2. If the answer to question 1 is "Yes" then, provided all the other elements have been proved, your verdict should be guilty of manslaughter.

3. If the answer to question 1 is "No" but the answer to the second question is "Yes" then provided all the other elements have been proved, your verdict should be "guilty of manslaughter".

4. If the answer to the first and second questions is both "No", then your verdicts should be "not guilty of manslaughter."

21. I accept the submissions of counsel for the Crown and the offender, with respect to the verdict of the jury as to Count 1, that the jury must have concluded that the offender did stab the deceased but did not do so with an intention to kill him or inflict grievous bodily harm.

22. I also accept the submissions of both parties that the jury did not conclude that the verdict of not guilty of murder but guilty of manslaughter was based on excessive self-defence.

23. The issue of self-defence was put in relation to both counts on the indictment. The finding of guilt on Count 2 indicates that this issue did not raise a doubt on that aspect and, given the circumstances of the single wound to the chest, it is unlikely that the verdict of not guilty of murder but guilty of manslaughter was based upon excessive self-defence.

24. I agree with the submission for the offender that the jury question (marked “MFI JN 2”), which referred to Summing Up Document 3 (marked “MFI HH4”) on manslaughter and asking if all the points in paragraph 2(a)-(d) have to be met to be considered (extracted above at [19(2)]), assists in this conclusion.

25. These aspects lead to a conclusion that it was a lack of the requisite intent which led to the acquittal on the charge of murder.

26. It follows that the Crown was correct to submit, with the concurrence of the offender, that the verdict on the alternative count was based upon a conclusion reached beyond reasonable doubt that:

1. the conduct of the offender in using a knife to stab the deceased in the chest amounted to an unlawful and dangerous act;

2. the offender’s conduct was intentional; and

3. the offender was not, at the relevant time, acting in self-defence.

27. It is important to recall that there is no hierarchy of manslaughter verdicts and the seriousness of the offending is determined by reference to the facts of the killing and not the class of manslaughter: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [49] (per Howie J, with whom McClellan CJ at CL and Simpson J agreed); R v Isaacs (1997) 41 NSWLR 374 (“Isaacs”) at 381 (per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson J and Hidden J).

28. A particular and controversial fact in issue, with respect to Count 1, was whether there was “a deliberate thrusting of the knife into the deceased by the offender” (a proposition contested by the offender), as opposed to, as the offender contended, a deliberate holding of the knife “in a position which enabled it to penetrate between the ribs of the chest of the deceased”; an act that the offender accepted, for the purposes of sentencing, was a dangerous act, albeit, it was submitted, an “impulsive” one and done in response to the actions of the deceased, and, an unlawful one “going beyond what was called for in the circumstances”.

29. Thus, it was submitted by Senior Counsel for the offender that, in this sense, the offender did not deliberately strike the deceased with the knife and that there was a reasonable possibility that the deceased impaled himself on the knife. However, the offender accepted his actions were not accidental but deliberate “in a relevant legal sense” and constituted an unlawful and dangerous act.

30. Whilst the Crown accepted that the dangerous and unlawful act undertaken by the offender (not done in self-defence) was done without an intention to kill or inflict grievous bodily harm, the remaining contentions of the offender, in this respect, were rigorously contested by the Crown. I will resolve this issue after reviewing the objective facts, discussing relevant principles and victim impact statements.

31. I turn first to principles applicable to the offence of manslaughter.

32. In R v Blacklidge (Unreported, New South Wales Court of Criminal Appeal, 12 December 1994) (“Blacklidge”) Gleeson CJ (with Grove and Ireland JJ agreeing) said:

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

33. However, Gleeson CJ also stated:

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)

34. In the decision of R v MD, BM, NA, JT (2005) 156 A Crim R 372; [2005] NSWCCA 342 the Court said at [61]:

35. [61] … The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510. There must be a reasonable proportionality between a sentence and the circumstances of the crime. The gravity of the offence must be viewed objectively. The maximum sentence fixed defines the limits of sentence for the most serious class of case: Dodd at 354, adopting the approach of Jordan CJ in Geddes at 556.

36. Fundamentally, a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [60] citing Veen at 472; Baumer v The Queen (1988) 166 CLR 51 at 57-58.

37. In R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184, which like Blacklidge, was also a Crown appeal, Spigelman CJ (Hulme & Adams JJ agreeing) said:

[44] … When sentencing for the offence of manslaughter, a court must always have regard to the full context in which death was caused. That includes consideration of the extent of violence and the risk of death or serious injury which accompany it. It also includes consideration of any matter impinging on the moral culpability of the offender where there was no intention to inflict such injury, which can vary significantly. Where there was such an intention, but murder was reduced to manslaughter by provocation or mental impairment, the degree of provocation or of impairment, also bearing on moral culpability, can also vary significantly.

38. In R v Loveridge [2014] NSWCCA 120, it was stated (at [229]):

When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No 5) [2009] NSWSC 432 at [61].

39. Going to another matter of general principle, in R v MD, BM, NA, JT at [65] the Court said:

[65] In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.

40. The importance of context in manslaughter was underlined in R v Winefield [2011] NSWSC 337 by Fullerton J. Her Honour said at [30]:

[30] … As I have been at pains to make clear, I reject the offender's evidence that he acted in self-defence which, as Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32], can operate in an appropriate case to place manslaughter by an unlawful and dangerous act in the lower range of objective seriousness.

41. Attention may then be diverted to more general principles of sentencing.

42. The offender's moral culpability for his offence must also be taken into account.

43. In sentencing, the Court must also consider the aggravating and mitigating factors, specified in s 21A of the Sentencing Act, revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender's offence, must also be taken into account.

44. Questions of general and specific deterrence must also be considered.

45. Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court referred to in Markarian at [51]. That requires that all of the factors relevant in the offender's case to be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offending made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crimes he committed: R v Scott [2005] NSWCCA 152 at [15].

41. The sentencing judge is required to find the facts material to the sentence which emerged during the trial or in the course of the sentencing proceedings: see Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17]. In finding sentence, it is for the Court to find the facts which are material to the exercise of the judicial discretion in sentencing (Isaacs at 378) having regard to the provisions of s 21A of the Sentencing Act. The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be proved beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].

42. Finally, regard must also be paid to s 44(2) of the Sentencing Act, which requires that the balance of the term of the sentence imposed on the offender must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio in his case.

43. Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of family victims: Ms Sianne Mather, the partner of the deceased; Mr Brendan Kennedy, brother of the deceased; and the deceased’s stepchildren, Daisy, Lilah and Kiesha and children, Lennox and Djabarri.

44. The victim impact statements came before the Court on application by the Crown, without objection by the offender, pursuant to s 28(4) of the Sentencing Act.

45. Section 3A(g) of the Sentencing Act provides that one of the purposes for which a Court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". The application of ss 3A(g) and 21A(2)(g) of the Sentencing Act ("the injury, emotional harm, loss or damage caused by the offence was substantial") were not intended to alter the common law principles on sentencing.

46. The victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community": R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 at [153] (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed).

47. The fundamental and guiding principle must be that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another: see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (per Hamill J). The Court cannot try to put a value on an individual human life or what the loss of that life means to the loved ones of the deceased or the community in general and nor is that the purpose of punishment or the presentation of victim impact statements: see R v Barbetta [2008] NSWSC 688 at [18] (per Howie J).

48. When viewed in terms of the relevant principles, the Court could well be satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community.

49. The Court acknowledges the understandable statements of grief that have been expressed by the deceased’s family and the continuing impact that the manslaughter has had upon them. The effect on each of the members of the family differs but is profound and ongoing and recognised by the Court which listened closely as Ms Mather and Mr Kennedy read victim impact statements.

50. I do not propose to recite all of their statements and expressions of hurt. I will refer to some parts of their statements (including the statement prepared by Ms Mather on behalf the children and step-children of the deceased).

51. Ms Mather stated:

Lloyd was a family man, an excellent father who always made sure his kids came first, he was always happy, always joking, a hard worker, easy to get along with, he was very artistic and talented and an all-round good guy.

Since losing Lloyd, the impact that it has had on me is beyond words. I felt like I was not in control of any of my feelings, I was sad, angry, frustrated and angry. I felt like I couldn't even be a mum because mental state was all over the place, I didn't know how to [sic] my children that they would never see their dad ever again. It hurt beyond words to have to look at my youngest child because he was only 7 months old and was now robbed of ever knowing his dad.

…

We will never get our Lloyd back and it's an anger that will never go away no matter how hard I try. I thought that once the trial was over that I would get some sort of closure, but I don't think I ever will. I will never forget that night and the trauma it has caused us all, it will live with us forever.

57. Mr Kennedy stated:

Lloyd, even though we had different fathers, he was still my brother. Our fathers weren't around and me being the older brother, we had this special bond where I was forever tormenting him, and he would give it back to me. Our relationship was in sync with each other, I'd start saying something and he'd finish my sentence knowing what I was going to say. I miss his voice, I miss his personality, the jokes he used to tell, his laugh and just him not being here anymore. Trying to look into my nephew's eyes and not cry is hard. His kids sometimes call me dad which is nice but it's also hard.

…

I have added financial burden now as I am the one that helps pay for the costs of football boots, head gear and things my nephews need cause their dad isn't here to financial[ly] support them. I try to make sure the kids don't miss out, so I buy them extra birthday presents and Christmas presents … It's added pressure to my family as I'm trying to be there for them, but my kids are also suffering as I'm not spending as much time with them as I should be.

58. Ms Mather, on behalf of the deceased’s children and step-children, stated:

This impact statement has been written on behalf of my children Daisy 15, Lilah 11, Kiesha 10, Lennox 6 and Djabarri 3. Lloyd was the step father to my 3 eldest children and a father to my youngest two.

Lloyd took on the role of raising us girls as his own, as our real father hasn't been around. He was our dad and closest thing we have ever had to a male role model.

…

When he passed away, I had to help everyone, because I was the eldest and it was hard. Three weeks after Lloyd was taken, I graduated year six … Since he died I have had learning difficulties at school and I must get counselling, because of the struggle coping of the way, he was taken from us the night he passed away.

…

We all don't talk much now or open to people like we used to as there is a fear of losing someone all over again.

Lilah is quiet and doesn't talk much now and finds it hard to come to terms with what has happened. Lennox cried himself to sleep for a long time after he lost his daddy. He still can't understand why daddy can't come home.

…

Every day since losing our dad has been an unbearable struggle.

59. All manslaughters are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, who have attended the trial, the sentencing proceedings and are present to hear sentence passed today, to accept that this manslaughter should be categorised in seriousness relative to other manslaughters on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.

60. At some time in the week leading up to 6 November 2016, or perhaps the week before, Mr Vercoe loaned Ms Restall about $200.

61. After loaning the money, Mr Vercoe soon afterward rang Ms Restall to discuss the loan.

62. Mr Vercoe attempted to retrieve the loaned money on three occasions.

63. The first occasion was on Tuesday, 1 November 2016 and was Melbourne Cup day. Mr Vercoe described that Ms Restall was home, as was a male whom he had not met before who was introduced to him as "Abo". He was told to come back in a few hours' time to collect the money.

64. The second occasion was Friday, 4 November 2016. Mr Vercoe had run into Ms Restall on the street who had told him that Mr Cummings was going to get the money and that he should come back to her house in 10 minutes. Having popped over to the Springvale Tavern (“the Tavern”) he returned to Ms Restall's house, where he was met at the door by another female who said that Ms Restall was not there.

65. The third occasion occurred on 6 November 2016 and will be discussed below.

66. I interpose to observe that I consider Mr Vercoe to have been an honest and reliable witness. He gave his evidence in a direct and frank manner and without exaggeration. He was careful in his description of the occasion when the deceased was penetrated with the knife. As the Crown submitted it would have been relatively easy to exaggerate the actions of the offender on the roadway at the point the offender and the deceased came into contact but he did not. He made appropriate concessions.

67. The cross-examination of Mr Vercoe commenced on Day 2 and continued into Day 3. His cross-examination consisted of, inter alia, questions regarding inconsistencies, arising in his evidence, with respect to prior statements, namely:

1. the hand the offender was holding the knife in;

2. the direction taken around a tree in Ms Restall’s front yard; and

3. Mr Vercoe tripping near Ms Restall’s front door.

68. I will deal with each, in turn, so far as they bear upon issues of reliability.

69. First, Mr Vercoe made a statement to police that the offender was holding the knife in his right hand, but during a police re-enactment stated that it was in the left hand. When presented with this inconsistency Mr Vercoe immediately conceded that he “could be wrong” and was not “100 per cent sure”. He accepted that the offender could have transferred the knife but did not see this occur as he did not have his eyes on the offender the whole time). Mr Vercoe believed that the knife must have been in the offender’s right hand when he was on the street because if it was in his left hand he would have seen the offender “stab” the deceased, which he did not. In my view, that inconsistency does not damage Mr Vercoe’s credibility given that such mistakes are to be expected from any witness in a highly stressful situation and Mr Vercoe readily admitted he was uncertain. The evidence also demonstrated he did not exaggerate or embellish.

70. Secondly, Mr Vercoe described that there was a tree directly outside the front door, "pretty much in the middle of the yard". If facing the tree from the house, Mr Vercoe initially stated that "Abo" went around the right hand side of the tree and "we came left hand side down the driveway" ending up on the edge of the road just opposite the driveway entry. However, Mr Vercoe later conceded that he went around the right hand side of the tree after he was played the re-enactment video, which showed him doing so. He denied that the offender was always in retreat and denied chasing him, stating that he was "at walking pace" and was not walking directly towards the offender but rather was tracking left towards the deceased. Mr Vercoe readily made concessions when confronted with mistakes in his account, further demonstrating that he was a reliable witness. It is also worth noting that this was not a case where objective facts contradict a witness’ statement; rather, Mr Vercoe, by apparent loss of memory, had contradicted his own statement which was given immediately after the event.

71. Thirdly, Mr Vercoe agreed that his statement to police did not mention him tripping near the front door nor did he mention it in the walkthrough on 7 November 2016. His evidence was that he overlooked that detail in those cases but maintained that it did occur, I accept that evidence, which was consistently maintained despite close cross-examination.

72. Finally, there is a high degree of consistency in his account both in terms of the statements he has made over time (such as his account of what was said and done at the front door and what occurred on the roadway) and the objective facts (for example, police found the wooden seat top next to the door, where it would be expected to be if it had been thrown as Mr Vercoe said).

73. I now turn to the circumstances surrounding the third occasion in which Mr Vercoe sought to retrieve the loaned money on 6 November 2016. Around 1pm on that day, Mr Vercoe came over and had some beers with the deceased at the deceased’s house. They had about 4 or 5 beers each.

74. There was suggestion that at one point they were sent to IGA by Ms Mather and returned with more beers which they consumed, however, Mr Vercoe denied that.

75. About 7.50pm on that same day, the deceased told Ms Mather that he and Mr Vercoe were going to go to the Tavern to buy some cigarettes, although Ms Mather suspected they were getting more beer.

76. That was the last time that Ms Mather saw the deceased alive.

77. The deceased and Mr Vercoe walked up Douglas Road, they turned left into Daly Street, they turned right into Neptune Drive and then made their way towards Webb Street by walking up Daly Street.

78. They would normally have turned left to go up to Kaitlers Road where they would have crossed the road to go to the Tavern. But while they were walking along Neptune Drive, Mr Vercoe told the deceased about the issue of the money with Ms Restall and the difficulties that he had over the past few days getting the money back.

79. When Mr Vercoe and the deceased went to the premises on 6 November 2016, Mr Vercoe knocked on the front security door. It was the offender who opened it, as well as a timber front door.

80. Mr Vercoe recognised the offender as he had been previously introduced to the offender by Ms Restall, as earlier mentioned, on the first occasion that he went to the premises to see Ms Restall about the loan. He knew the offender as “Adam” or “Abo” because that is how he had heard Ms Restall refer to him. He described the offender as having a long plaited ponytail that went halfway down his back and having a large tattoo on his back.

81. Mr Vercoe asked the offender if Ms Restall was at home and he was told she was not. Mr Vercoe told the offender that Ms Restall owed him money. When the offender stated he did not know about the money, Mr Vercoe stated that he did know about it because he had heard Mr Vercoe discussing it with Ms Restall the other day. Mr Vercoe’s evidence was that during the conversation the offender became agitated, particular in relation to the presence of the deceased. The deceased was standing 2 or 3 metres behind Mr Vercoe on his right side. The offender said to the deceased, “What’s your problem?”.

82. Mr Vercoe’s evidence was that the deceased had not said anything to that point and was just standing behind him.

83. It was at that time that the deceased first said words to the effect of “Fuck it Nath, don’t worry about it, let’s go”.

84. The offender shut the front door, and the two men, the deceased and Mr Vercoe, walked down the driveway towards the roadway outside the premises.

85. A short time later (about 15 seconds according to Mr Vercoe), as Mr Vercoe and the deceased reached where the cement driveway connected with the pathway, the door to the premises opened again. The offender emerged and said words to the effect of “You pair of smart cunts”. Mr Vercoe stopped walking and turned around. He placed himself between the deceased and the offender as he proceeded to walk up the driveway towards the offender.

86. The offender was holding a silver stainless steel steak knife with a serrated edge in one hand and a timber table leg with a three inch screw hanging out of it in the other. As mentioned above, Mr Vercoe stated that he could not remember which hand each implement was held in.

87. Mr Vercoe approached the veranda area. As he began to walk towards the house, the offender was about the point where the path meets the outer edge of the veranda. The offender then retreated one or two metres back so that he was near the veranda in front of the door. The offender continued to hold the knife and table leg.

88. Mr Vercoe “grabbed” a piece of timber, described as a table seat or table top, which was off the top of an old outdoor setting at or about the veranda. Mr Vercoe stated, in cross-examination, that the offender was not doing anything as he picked up the timber. The timber was made up of 3 beams, each about 2.5 feet long, 4 inches wide and 2 inches thick, and 3 cross beams.

89. Mr Vercoe had the timber drawn back at about shoulder height ready to hit the offender. He stated he armed himself in order to defend himself if he had to as “it was between me and him”. Mr Vercoe conceded that he held the timber ready to strike the offender, but “there was no attack, it was just defence”. I agree with the submission of the Crown that Mr Vercoe was raising the table top and perhaps waving it to defend himself, however ill advised his approaching the offender may have been at the time.

90. The offender continued to wave the knife at Mr Vercoe. Mr Vercoe tripped over as he was wearing flip flops at the time. As Mr Vercoe was falling, the offender lunged at him with the knife and missed his left shoulder by about 3 to 4 inches. Throughout this encounter, the deceased was behind Mr Vercoe not getting involved.

91. The intimidation of Mr Vercoe with a knife up to this point of time or slightly later as the offender commenced moving around the time in the front yard constituted Count 2.

92. Mr Vercoe then got up and remembered swinging the timber at the offender. The offender ran around the right hand side of a tree in the front yard at the premises at that point.

93. The offender moved from the edge of the road towards the middle of the road.

94. Mr Vercoe moved onto the road. The offender moved towards him. When Mr Vercoe had reached a point between the fog line on the road and the middle of the road he tripped as he was lunging towards the offender. The timber dropped to about halfway across the fog line. At this point the offender lunged at him with the knife, from right in front of Mr Vercoe, in the direction of Mr Vercoe’s right shoulder.

95. As Mr Vercoe was on the ground and from about the time the offender lunged with the knife at Mr Vercoe, the deceased ran diagonally across the road towards the offender from the driveway kerb intersection for a distance of about 8 metres. The offender was standing at the juncture in the centre of the road at a location near a yellow mark (shown in Ex 4) at about the centre of the road. The offender still held the knife and the table leg. Mr Vercoe described the deceased as “rushing in”. He was plainly endeavouring to give aid to Mr Vercoe.

96. The evidence makes clear that the deceased and the offender collided – Mr Vercoe described this movement of their respective bodies as “clashing” face to face and then separating as rebounding off each other. Each body was straight up and down (not bending forward or back). At the point of collision the offender was still near the aforementioned yellow mark. The offender and the deceased were side on side to Mr Vercoe.

97. However, the evidence does not disclose that the offender was motionless at the time of the impact with the deceased. Mr Vercoe was clear in his evidence that both the deceased and the offender were rushing at each other before they “clashed”. He stated, “Well he [the offender] rushed at Lloyd the same time they both rushed at each other”. Mr Vercoe did not see the offender penetrate the deceased with the knife but he disputed the proposition put to him that the offender “remained where he was” before the clash – Mr Vercoe stated that he “just took two steps”.

68. At this point, Mr Vercoe stated that the deceased, who was side on, was closest to him and that “Abo” was at his 10 o’clock. He described that the offender still had the implements in his hands.

69. To use Mr Vercoe's words "a split second later", he saw the offender drop the table leg and run at pace from the deceased towards the front door of the premises in the same way that he came from. Mr Vercoe momentarily gave chase before the offender ran inside and shut the timber front door. Mr Vercoe hurled the piece of timber at the door from the nature strip, it struck the fly screen door which was closed and it made what he called a loud cracking noise.

70. When Mr Vercoe turned around, he saw the deceased with his feet on the edge of the curb and his head closer to the centre of the road.

71. Mr Vercoe then described going to the deceased as follows:

I grabbed him and then I’ve held him in my arms and I didn’t know what was happening you know what I mean until I pulled his jacket back, like I know what had happened but I didn’t want to believe until I pulled back his jacket and it was red, yeah.

102. Mr Vercoe described a stab wound under the deceased’s left breast and that blood was pumping out of the deceased. The deceased was gasping every 40 seconds for air and could not speak. Mr Vercoe put his thumb over the wound and was speaking to the deceased.

103. Mr Vercoe attempted to assist the deceased. As he did so, other members of the public also stopped and assisted. Following atriple-0 call at about 8.26pm, police and ambulance services attended. The deceased was taken to hospital, where he was later pronounced deceased.

104. When police arrived, Mr Vercoe spoke to Senior Constable Binns and Detective Constable Glynn. That conversation concluded at 9.55pm on Sunday, 6 November 2016.

105. After the conversation with the detectives, Mr Vercoe went to the police station and made a written statement, then went home.

106. The following day, 7 November 2016, Mr Vercoe was contacted by police who picked him up and took him to the premises to perform a "walk through" of the events of the previous evening.

107. The offender left the scene by scaling the fence at the rear of the property. He was still holding the knife he used to stab the deceased, which he dropped to the ground.

108. In May 2018, almost 18 months after his arrest and his interview, the offender wrote a letter to his daughter, Daveida. The letter comprised 15 handwritten pages in which the offender said to his daughter that he was in fact the victim of a home invasion. He asserts that, after an initial discussion at the front door, presumably with the deceased and Mr Vercoe, and after shutting the door, two men went around the back of the premises and entered through the back door, either already armed with knives or arming themselves after they came in, with knives. He also asserted one of them grabbed one of the table legs that I have referred to earlier. He says that the two men chased him out the front door while demanding that he give them the $200 that Ms Restall owed Mr Vercoe. The offender says that he grabbed that same piece of timber that Mr Vercoe said that he grabbed and the offender said that he in fact used it to protect himself from the strikes of those two men with the knives.

109. Dr Jane Vuletic was the senior staff specialist in forensic pathology at the Department of Forensic Medicine in Newcastle. It was accepted she was an expert in her field. On 10 November 2016, she conducted an autopsy on the deceased.

110. The deceased sustained a stab wound some time after 7:30pm on 6 November 2016. He was taken to Albury Base Hospital where he underwent emergency surgery, however, he did not ever regain consciousness and was pronounced dead at approximately 11pm on the same evening.

111. Dr Vuletic opined that the direct cause of the deceased's death was a stab wound to the heart, with no antecedent causes and no other causes that underlie the cause of death. The immediate cause of death was loss of blood from the stab wound. Other than the stab wound, no other injuries were present.

112. The external examination of the deceased showed a stab wound on the left chest which passed through into the chest cavity at the left edge of the sternum, passing through the anterior (front) and posterior (back) wall of the right ventricle, being a part of the heart, and terminating in the liver. In summary three wounds were identified: stab wound left anterior chest; stab wound through right ventricle and an incised wound in the liver.

113. The injury to the deceased was described by Dr Vuletic as follows:

A single stab wound was present on the left anterior chest wall located 129 centimetres above the left heel. The entry wound measured approximately 2 centimetres in length and was located 4 centimetres inferior and 3 centimetres medial to the midpoint of the left nipple. The wound was located 8 centimetres from the midline of the anterior chest wall and was at 90 degrees to a transverse line across the body (i.e. a vertical position). That indicates that the knife blade was inserted into the body in a vertical position.

114. The point where the knife pierced the posterior or the back wall of the right ventricle, was a 5 centimetre long wound. Dr Vuletic also accepted the wound in the heart and the wound in the liver lined up.

115. Close inspection of the wound edges and the sternum wound, being the wound that passed through the breastbone, showed a serrated pattern and it is probable that the knife used was serrated.

116. As to the direction that the knife would have had to travel to cause the wounds to the heart and liver, Dr Vuletic was asked the following questions and gave the following answers to the Crown:

Q. Now doctor, if we assume that the person who was holding the knife was standing and we assume that the person, Mr Kennedy, was also standing, can you say anything about the direction that the knife would have had to have travelled to cause the wounds to the heart and the liver that it did?

A. The path is into the body and downward toward the right side of the body.

Q. The right side of the body, as the person faces us, so his right?

A. Yes, the right side of the victim.

Q. So are you saying then that the knife would have to have been put, for want of a neutral term, into the body, from a height above the exterior wound?

A. It's impossible to predict how, in what position the victim was in when the knife passed into the body. It could have happened in many scenarios. All I can comment on is the path the knife took in the body. I cannot say how the victim was positioned at the time.

117. In cross-examination, Dr Vuletic agreed that, if the deceased and the offender had clashed front on in an upright position, full body to full body, after the deceased had run some distance towards the offender, who was standing, the angle of the knife entry would be affected by the exact position of each body at the moment of impact.

118. As to the force needed to inflict the injury going to the body to the depth that it did in the case of the deceased, she commented: "more than a minor degree of force, so in terms of a moderate thrust would be what I would imagine". She accepted "at least a moderate thrust" was a fair description.

119. She also accepted that the intercostal space between ribs is much easier for a hard implement with a sharp point to proceed into the body if there is some force behind the impact. However, in accepting that proposition she observed that "however in the case here, the edge of the sternum came into contact with the knife".

120. Senior counsel for the offender put a scenario to Dr Vuletic in which it was asked whether it was possible that the impact between two bodies, one whom was holding a knife, running at and clashing between the two individuals resulting in their bodies coming into contact, would be sufficient to cause a penetration of the type in evidence. She agreed such a result was possible.

121. In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of the offence (at [60]):

[60] As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].

122. The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 ("Charbaji") at [180]; Apps v R [2006] NSWCCA 290 ("Apps") at [5] (per Hunt AJA) and [49] (per Simpson J).

123. I have earlier directed attention to the offender’s submissions as to the circumstances which were said to prevail at or about the time the deceased was stabbed with the knife.

124. Laying at the centre of the offender’s contentions on the objective seriousness of the offence were the following propositions:

1. The evidence does not rule out that the wound to the deceased was occasioned by the clash of bodies – the deceased ran at the offender causing bodily impact before then.

2. There was no deliberate thrusting of the knife to penetrate the chest of the deceased – the presentation of the knife was such that the deceased was injured the moment their bodies clashed.

3. The deceased thereby impaled himself on the knife. There is no evidence to the contrary.

4. The offender’s actions were instinctive, spontaneous and impulsive such that there was not the formation of a specific intention (to deliberately thrust the knife).

5. The manslaughter offence was not, therefore, premeditated and occurred after Mr Vercoe approached him after the commission of the s 33B offence.

6. It was accepted that the offender introduced the knife into the situation. It was acceptable, with respect to the manslaughter offence, that this act was an objectively serious one, albeit spontaneous in nature. The danger arose objectively by the offender holding the knife with the blade pointing towards the deceased before they collided. The action was not done in self-defence.

7. The offender exited the house with the knife and wooden table leg and called to Mr Vercoe and the deceased in an aggressive fashion not in self-defence. That was Count 2. The further lunging of the knife was not associated with Count 2.

8. However, there was no premeditation because of the spontaneous nature of the offender’s actions after he was pursued by Mr Vercoe to the roadway.

9. It was also contended that there was self-defence or provocation as the offender was provoked by the actions of the deceased in suddenly running at the offender in circumstances where he was in retreat from Mr Vercoe who was ready to strike him with the seat or table top.

10. The violence was of a low order because the presentation of the knife was not one where there involved deliberate thrusting by the offender for the purpose of striking the deceased.

125. I turn first to consider the objective seriousness of Count 2.

126. Count 2 occurs in a timeframe extending from the visit by Mr Vercoe and the deceased to the premises until the offender departs the front of the house and moves to the tree in the front yard of the house.

127. He was the instigator of the circumstances which then unfolded. There was no aspect of Mr Vercoe’s or the deceased’s conduct prior to the offender emerging from the premises with a knife and table leg (with a screw protruding) that constituted provocation. The offender emerged from the house as the aggressor (by the arming of himself and the words spoken as Mr Vercoe and the deceased, who were moving away from the premises down a driveway). He introduced the knife (as well as the table leg with screw).

128. Whilst it may have been unwise for Mr Vercoe to approach the offender, I accept he did so with the intention of defending the deceased and himself. Whilst the offender retreated at one point in the encounter, he took the opportunity to lunge the knife at Mr Vercoe thereafter when he stumbled.

129. It was submitted that the offender was in retreat when he moved to the tree in the yard, and was acting defensively. The difficulty with this contention is that the event immediately preceding the offender’s movement around the tree was his lunging at Mr Vercoe with the knife.

130. However, Mr Vercoe did follow the offender around the middle of the tree to the middle of the road.

131. As property conceded by the offender, Count 2 is an objectively serious example of the offence. The offence involved, as I have assessed, the presentation of the knife as a weapon as well as the holding of the wooden table leg (although he did not use it). The offender lunged at Mr Vercoe with the knife.

132. I accept the offender may not have expected the response he received from Mr Vercoe and that Mr Vercoe would strike the offender with the seat or table top, but the use of the knife in the manner the offender did was consistent with the level of aggression he displayed on leaving the house, disproportionate to any danger presented by Mr Vercoe (who, in my view, was acting defensively) and had the potential to cause serious harm.

133. As mentioned there was no provocation by Mr Vercoe or the deceased. They were departing the premises when the offender emerged aggressively. I agree with the Crown that the fabrication of events in the offender’s letter to his daughter is recognition by him that Mr Vercoe and the deceased were no threat to him as he was attempting to construct an alternative scenario in which they were the aggressors. There was some planning and premeditation as he had time after shutting the door of the premises to locate a knife and a table leg before re-emerging.

134. In my view, Count 2 is objectively very serious.

135. Turning to the manslaughter offence, it must also be concluded the offender introduced a knife into the situation ultimately resulting in the deceased’s death and resulting manslaughter offence. Senior Counsel for the offender conceded as much but contended that the offender was merely responding to what was taking place. I do not accept that submission.

136. Having reached the middle of the road with Mr Vercoe approaching from the direction of the tree, the offender moved towards Mr Vercoe. That was an aggressive step. He took the knife (and table leg) with him onto the roadway. True it is Mr Vercoe stated that he “lunged” at the offender with the table top or seat; however, he tripped and, on doing so, the offender lunged at him with the knife, narrowly missing him. The threat from Mr Vercoe was minimal at that time as he had fallen to the ground and had dropped the seat or table top on the ground.

137. I do not consider that it may be found beyond reasonable doubt that the knife was held in the fashion submitted by the Crown, namely, the knife blade of the knife was 90 degrees to the forearm and then trust at the deceased in a stabbing motion. However, it does not follow, as submitted by the offender that the deceased “impaled” himself on the knife if, by that submission, it was intended to indicate that the penetration of the deceased’s body arose solely by him running into the knife, the force of the motion causing the knife to penetrate in the manner described by Dr Vuletic.

138. The deceased was running to rescue Mr Vercoe. The offender did not simply turn in the direction of the deceased’s movement with the knife facing upwards towards the deceased with no other action. He moved in the direction of the deceased with the knife elevated sufficiently in the direction of the deceased such that, with two bodies in a fairly upright position, the knife penetrated in a downward motion. There was a quite short period of time involved in those actions but when seen in the light of the aggressive lunging at Mr Vercoe, the movement of the offender towards the advance of the deceased and the downward motion of the knife must result in a conclusion that the offender was not merely acting spontaneously or impulsively but with a deliberate and aggressive act.

139. I do not consider that the action of the offender, in this respect, may be described as planned or premeditated other than for the momentary premeditation in moving towards the deceased. Nor do I consider it may be found in these circumstances that the actions of the offender were provoked by the deceased or Mr Vercoe. The deceased was acting entirely protectively of Mr Vercoe.

140. I do not accept that, having regard to the above findings, the circumstances of this might represent a case of violence “of low order” as submitted by Senior Counsel for the offender.

141. It is unnecessary to place the objective seriousness of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing). In all the circumstances, I consider the manslaughter to be objectively serious.

142. The knife held by the offender was used as a weapon.

143. This may not result in aggravation with respect to Count 2 as the use of a weapon is an element of the s 33B offence.

144. However, the use of a weapon is not an element or intended characteristic of the offence of manslaughter: R v Ibrahimi [2005] NSWCCA 153. This excites consideration of the use of the knife as an aggravating factor for the purposes of s 21A(2)(c) of the Sentencing Act.

145. I accept the submission of the offender that there should be no double counting of the factor insofar as the use of the knife has formed a significant part of determining the objective gravity of the offence. The use of a weapon here has, therefore, minimal significance as an aggravating factor.

146. The offender has a significant and lengthy history of criminal convictions, including convictions for possessing firearms, driving while affected by drug and/or alcohol, dishonesty, anti-social behaviour in public places, of resisting, assaulting and intimidating police, threatening witnesses, perverting the course of justice, and for numerous offences involving violence, including affray (prison riot), the malicious infliction of grievous bodily harm and assault occasioning actual bodily harm.

147. The Crown produced a helpful table setting out the offender’s history of convictions for offences of violence or involving violence which contained the following entries by geographic location.

New South Wales Offences

148. The offender was convicted of maliciously inflicting grievous bodily harm which was committed on 3 March 2000. He was sentenced by Albury District Court on 7 September 2001 to 2 years’ imprisonment suspended upon entering a 2 year bond which included conditions regarding counselling and residential treatment for drug addiction.

149. The offender was convicted of 2 counts of assault occasioning actual bodily harm which was committed on 9 March 2001. He was sentenced by Albury Local Court on 7 September 2001 to 6 months’ and 18 months’ imprisonment for each count. The offender successfully appealed the custodial sentences and Sydney District Court imposed a 3 year supervision order and 12 month bond, which included compulsory participation in residential drug treatment. However, he failed to comply with those conditions and 4 months later Sydney District Court called up the matter and reinstated the original sentence.

150. The offender was convicted for assaulting a police officer in the execution of duty and assault occasioning actual bodily harm which was committed on 8 May 2003. He was sentenced by Albury Local Court on 12 August 2003 to 6 months’ imprisonment.

151. The offender was convicted of assault occasioning actual bodily harm in the company of others, which offence was committed on 12 January 2005. He was sentenced by Albury District Court on 4 September 2007 to 18 months’ imprisonment.

148. The offender was convicted of affray which was committed on 9 May 2007. He was sentenced by Albury Local Court on 28 September 2007 to 3 months’ imprisonment.

149. The offender was convicted for assault occasioning actual bodily harm (domestic violence related) committed on 19 September 2009 as well as common assault and threatening or causing injury to a person for being a witness committed on 21 September 2009. He was sentenced by Albury Local Court on 18 May 2010 to 6 months’ imprisonment for common assault and 12 months’ imprisonment for the other two charges.

150. The offender was convicted for assault occasioning actual bodily harm (domestic violence related) committed on 15 May 2010. He was sentenced by Albury Local Court on 31 May 2010 to 13 months’ imprisonment.

151. The offender was convicted of affray committed on 20 September 2014. He was sentenced by Goulburn Local Court on 29 June 2015 to 6 months’ imprisonment.

Queensland Offences

156. The offender was convicted of assaulting police which was committed on 3 December 1994. Southport Magistrates Court on 5 December 1994 imposed a $300 fine.

157. The offender was convicted of 2 counts of serious assault which was committed on 13 February 1998. He was sentenced by Southport Magistrates Court on 25 March 1998 to 4 months’ imprisonment.

Victorian Offences

158. The offender was convicted of, inter alia, intentionally causing injury, assaulting police and making a threat to kill. He was sentenced by Wodonga Magistrates Court on 22 March 2005 to 4 months’ imprisonment, 1 month imprisonment and 3 months’ imprisonment for each of the respective charges with specified periods to be served concurrently. The total term imposed was 10 months’ imprisonment.

159. I do not consider the offender’s prior record aggravates the offence for the purposes of s 21A(2)(d).

160. I also do not consider the circumstances of this matter including the offender's record gives rise to considerations such as those found in Veen.

161. However, I accept the submission by the offender that his prior record disentitles him to leniency and the submissions of the Crown, with appropriate concurrence of the offender, that the prior record has implications for specific deterrence.

162. I accept the submission of the offender that no aggravation arises from consideration of the provisions of s 21A(2)(g). The injuries sustained by the deceased were consistent with the offence of the kind committed. Whilst the victim impact statements demonstrate substantial harm to the family of the deceased, they may not properly be used as evidence to aggravate the offence: R v JK [2018] NSWSC 250 at [19] (per Hamill J).

163. On 6 November 2016, the offender was on bail for the offence of driving a vehicle whilst an illicit drug was present in his blood, which offence was committed on 24 October 2016. He was sentenced by Albury Local Court on 24 January 2017 to a $500 fine and 3 months’ disqualification. The offender submitted that the breach of bond is considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced: Frigiani v R [2007] NSWCCA 81 at [24] (per Howie J). I accept the degree of aggravation will be less here where the conduct for which conditional liberty is imposed is different from the offending conduct. Nonetheless, this is an aggravating factor.

164. Notwithstanding the offender, as earlier mentioned, made a conscious decision after the initial conversation to arm himself with a knife and table leg and then engage in the conduct I have earlier described as containing some planning at the initial stage (with respect to Count 2) and momentarily in relation to the events on the roadway, I do not consider the offence was part of a planned or organised criminal activity.

165. For reasons given earlier, I do not accept the offender’s submissions as to provocation and there is no allowance in mitigation for that factor.

166. The offender has a criminal record. His record is a significant one dating back over many years. It cannot be said that he is a person of good character because of these matters. Senior Counsel for the offender properly accepted that it not unlikely that the offender will re-offend in the future. He has been unemployed for 18 years, has not been released to parole and relapsed into drug use following rehabilitation, at the end of his last gaol sentence.

167. The offender’s background, as disclosed to Ms Anita Duffy, psychologist, was a supportive one where he was the youngest of two older sisters and a brother all of whom have been able to succeed in life. His parents were both hard working people who in the end ran their own separate businesses. He grew up with discipline and support in a house where his parents had a good relationship. His father died of cancer 5-6 years ago.

168. His mother and siblings reside in the Albury/Wodonga area. It is of importance to note that he has no juvenile offences on his record.

169. He had problems in reading and writing when he was in Primary School. He went to Wodonga High School for years 7 to 9 and then did a year at a technical college where he could do practical subjects.

170. He was an apprenticed plumber and attended TAFE. He completed enough of the requirements to work as a subcontractor.

171. The offender was a talented player of AFL football and secured a contract to play in Brisbane in 1994 when he was 20. He had a knee injury in training and was unable to play. He transferred to the Gold Coast but only played one game before having to leave the game because of this injury.

172. He lived in the Gold Coast for the next 4 years where he worked part-time as a plumber.

173. As mentioned, he has been unemployed for 18 months. He told Ms Duffy that he hopes to return to plumbing or work as a tattooist.

174. When living at the Gold Coast was involved in a relationship with a young woman, which ended because of his growing dependence on heroin.

175. As reported by Ms Duffy, he has a supportive family with whom he maintains contact. His aim is to interact with them when he is drug free.

176. Upon his return to Albury, in 1999 he formed a relationship with Ms Restall, a witness in the trial, who was then involved in drugs. Their daughter Daveida was born in 2001. She was later removed by Department of Child Services (“DOCS”) at aged 2 as a result of the drug use of both parents and placed with Ms Restall's parents. This relationship existed for many years but was well over at the time of the offence although the offender was staying temporarily at Ms Restall’s residence at the time of the offences.

177. The hand written letter from the offender to his daughter referred to this situation and his wishes to have a good relationship with his daughter was Ex26 in the trial.

178. The offender told Ms Duffy that his daughter inspires his desire to remain drug free and make up for lost time with her. He is proud of her achievements in the recent HSC and relieved that she is still supportive of him.

179. Senior Counsel for the offender submitted that it was vitally important in understanding how it is the offences were committed to consider the background of the offender.

180. Senior Counsel relied upon a line of authority in support of the contention ranging, in the case of submissions on moral culpability, from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) to Kentwell v R (No 2) [2015] NSWCCA 96 at [83]-[84] (per Rothman J, with whom Bathurst CJ and McCallum J agreed) and R v Booth [2014] NSWCCA 156 at [20]-[27] (per Hamill J, with whom Hoeben CJ at CL and Beech-Jones J agreed).

181. It was conceded that the offender did not have a deprived background, in the sense referred to in those cases, and that drug dependence cannot be a mitigating factor alone.

182. However, in reliance upon the report of Ms Duffy, the offender submitted that drug dependence when combined with a history of trauma from violence related events might reduce the offender’s moral culpability to some extent as explained in the psychological assessment.

183. In the report given to Ms Duffy, the offender reported being introduced to alcohol when going to AFL football matches. He later developed a dependence on strong morphine based pain killers and this subsequently led to a heroin habit (he had previously taken cannabis). He reported that he began to use “ice” and suffered psychosis which resulted in hospitalisation in a psychiatric unit at a Melbourne hospital for about 12 months. Ms Restall had a heroin dependence and after their involvement they attended Odyssey House in Melbourne between 2000 and 2001.

184. Soon after their daughter was born he relapsed into “ice” use after he and Ms Restall separated when his child was 2 years old. He attributed the increased use of “ice” to depression following the loss of his daughter and his limited access to her. He was prescribed antipsychotic medication during his incarceration between 2012 and 2016 but because his release was unsupervised (there being no parole) he returned to taking “ice”.

185. The offender told Ms Duffy that following his release he was using half a gram of “ice” daily, was awake for up to 10 days and reported some psychotic episodes. On his arrest he was in possession of 0.86g of methylamphetamine. He was arrested on 24 October 2016 for driving, as earlier mentioned, whilst driving with an illicit drug, methylamphetamine, present in his blood.

186. The following is a summary of the elements of Ms Duffy’s report derived, in part, from submissions by Senior Counsel for the offender:

1. The offender’s presentation and reported history and the result of his objective personality assessment reflect an individual with long standing drug dependence. His relapse upon his release into "ice" use at the time of the offence is consistent with criteria for Stimulant Use Disorder (DSM-5).

2. Ms Duffy observed that the excessive use of "ice" can lead to paranoid ideation and threats of acting out behaviour may occur. She points out that "ice" use and possible sleep deprivation feeding Ms Restall’s puppies in the days leading up to the offending "may have further exacerbated Mr Azzi's paranoia and perceptions of danger."

3. Following Ms Duffy's assessment based upon the results of the Millon Clinical Multiaxial Inventory, she states:

Mr Azzi's profile reflects an emotionally isolated individual who is self sufficient and may have little insight or self awareness in the implications of interpersonal relationships. He conceptualises the world as functioning according to the "laws of the jungle", where showing signs of fear is seen as a weakness, and where he may see others as exploitative and intimidating. He may be guarded, mistrustful and reserved and when challenged can become impulsively angry and aggressive.

4. As to the prospect of the offender suffering post-traumatic stress disorder (“PTSD”), Ms Duffy stated that the Post Traumatic Stress scale “lay below significance, although was raised”.

5. At pages 8 and 9 of the report Ms Duffy further discusses PTSD under a heading addressed to the same. She describes the offender’s repeated traumatic experiences as follows:

When asked to nominate a traumatic experience where he was in fear of his life (Criterion A), Mr Azzi referred to the home invasion incident where he was imprisoned and a gun held to his head, which had occurred in the early 2000s. His responses on the checklist indicated that he continued to experience flashbacks of the stressful experience, felt very upset when reminded such as heart pounding, breathlessness; avoided memories or reminders of the experience; had strong negative feelings such as fear, horror, guilt or shame, felt distant or cut off from people; and was easily startled and super alert, watchful and on guard. These responses constitute the Intrusive, Avoidant, Negative Emotions and Hyperarousal symptoms of PTSD.

6. She later discusses traumatic experiences by the offender when in the inmate population.

7. At page 9 of her report under the heading concerning PTSD Ms Duffy found his total score on the frequency and intensity of symptoms lay above the threshold of positive diagnosis of PTSD but additional investigation was needed “before making a definite diagnosis”. Further, at page 9 of her report in Ms Duffy’s conclusions she found:

Assessment of current symptoms of PTSD indicate a strong likelihood of positive diagnosis, particularly the intrusive, avoidant and hyperarousal clusters. There appears to be a cumulative effect of traumatic experiences in inmate populations as outlined in research conducted by Briere et al. They found that trauma exposure was very common among prisoners (48% of a prison sample as opposed to 4% of a general population sample) and even when controlling for effects of childhood sexual assault, a prison sample with only one type of trauma exposure had a 17% likelihood of current PTSD whereas those with cumulative trauma experiences of 6 or more traumas had a 64% chance of current PTSD.

8. Ms Duffy concludes that his reported history of trauma, which is consistent with research findings on the cumulative effect of traumatic experiences on inmate populations, "increased his hypervigilance to potential threat, such that he was fearful and avoided situations where he could be caught off guard".

9. In addition Ms Duffy notes a prison study which found a relationship between PTSD and emotional dysregulation in male “ice” users with a history of PTSD symptoms. This combination bolstered the risk of aggression via forms of emotional dysregulation. Ms Duffy concludes:

His difficulty in regulating emotions, especially in a state of high arousal, in addition to the effects of "ice" consumed on the day, would have impaired his capacity for judgement and problem solving when he confronted the men. His behaviour reflected a "flight or fight" response, in the face of perceived threat. The sensitivity to attack was heightened by his previous traumatic experience of a home invasion.

187. The Crown’s response to these contentions, by the offender and Ms Duffy’s report, was that the Court would be guarded about and treat with caution the content of any statements made by the offender to a third party that are not supported by sworn or independent evidence. These contentions have greater force, it was submitted, due to the offender’s propensity to lie.

188. Reliance was placed upon Imbornone v R [2017] NSWCCA 144 at [57] (per Wilson J, with Hoeben CJ at CL, RA Hulme J agreeing), for the following propositions:

1. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58]-[59] (per Smart AJ).

2. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu (2002) 134 A Crim R 174 at 185; [2002] NSWCCA 381 at [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25].

3. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

4. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19].

189. I accept those statements of principle.

190. To these observations reference may be made to the judgment of White JA in Perkins v R [2018] NSWCCA 62 ("Perkins") (with whom Fullerton J relevantly agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133. The following principles may be distilled from those authorities relevant to this judgment:

1. The focus should be upon whether the background of the offender lessens moral culpability. It does not follow that a background of social deprivation will always be a factor in mitigation of sentence (Perkins at [73]). In particular, it may do so if there was a causal link between the background of social deprivation and the offences.

2. If the offender seeks to rely upon his background of deprivation in mitigation of sentence, he needs to point to material tending to establish the background (see Perkins at [77] and Bugmy at [41].

3. The weight to be afforded to the offence of social deprivation in an offender's background is in each case a matter for individual assessment (Bugmy at [56] per Gageler J).

191. The offender relied upon a series of factors, in the absence of direct evidence, to demonstrate an evidentiary basis for a submission that the Court should conclude the offender had a reduced moral culpability due to compromised mental processes at the time of the offence as follows:

1. The offender’s use of drugs on the day of the offence can be inferred from the history of offending and continued drug use at the time. The circumstances of the arrest were such that the next morning he was found to possess a small amount of methylamphetamine. In January 2017, he was convicted of driving under the influence of an illicit drug. He was convicted of possessing a prohibited drug while serving a sentence in 2015 for an offence in 2014. He was also arrested for possess prohibited drug in September 2016 following his release from custody. That matter, together with a failure to appear, was concluded by the Central Local Court on 22 May 2017.

2. The material in the background report from Ms Duffy, her references to research, the findings her testing supported and the conclusions she made, are consistent with the behaviour of the offender in response to the presence of Mr Vercoe and the deceased. The response could be seen as emotionally dysregulated, hyper vigilant and paranoid, impaired in judgment and impulsively aggressive. It fits well with the paradigm proposed by Ms Duffy for previously imprisoned relapsing users of “ice” with a history and symptomology of PTSD.

3. The very facts of the case revealed erratic, irrational, hypervigilant behaviour as well as paranoid perception. This is particularly so when he emerged from the premises after closing the door and then re-emerging.

192. The Crown submitted that there was insufficient evidence of the offender’s mental health in Ms Duffy’s report to reach a conclusion concerning the hypervigilance. Emphasis was placed upon the offender’s misreporting as to the conduct of Mr Vercoe and the deceased, namely, that his offence was “instigated” by two men arriving at the premises, his perception that they behaved in a threatening and aggressive manner and the belief he was going “to die”. He reported he adopted self-defensive behaviours and he had become “accustomed to in the context of the prison environment where violence and intimidation were commonplace”. He armed himself with a knife and a piece of wood to “protect himself”.

193. The highest a diagnosis of PTSD reached, submitted the Crown, as there was a likelihood of such a diagnosis.

194. I accept the submission of Senior Counsel for the offender that he continued using methylamphetamine or the like at or about the time of the offences.

192. However, there is little evidence as to the extent of his exposure to the drug on the evening in question or the extent to which, as Ms Duffy put it, he had relapsed into “ice” use. There is no evidence from the offender on this issue.

193. I also accept the submission of the Crown that the reports by the offender given to Ms Duffy as the foundation of her findings as to PTSD need to be treated with real circumspection in the absence of evidence from him. That is particularly so when the evidence in the proceedings demonstrated that he was willing to invent accounts in order to place himself in a better light or improve his position. The story to his daughter, pursued by Senior Counsel under instructions during cross-examination, misrepresented Mr Vercoe’s and the deceased’s conduct and was on the evidence a fabrication.

194. It is important to note that Ms Duffy did not diagnose the offender with PTSD although postulated that was a likely diagnosis after further investigation. Further, the behaviour of the offender, as submitted by Senior Counsel for the offender, did have some of the behavioural features referred to by Ms Duffy exacerbated by “ice” use.

195. I will make an allowance in sentencing for this factor but the weight attributed to it is modest.

196. I accept the offender’s submission that the prospects of rehabilitation of the offender are at best guarded.

197. The fact that he was not released to parole, despite completing programs, during his previous sentence speaks against efforts at rehabilitation during that previous long period in custody. His custodial history is replete with offences.

198. A positive aspect of his situation is that he has strong family support. He has most importantly the support of his daughter Daveida with whom he has tried to maintain and develop a relationship, who is the most important person to him and of whom he is very proud. She provides an incentive towards rehabilitation.

199. He is prepared to participate in rehabilitation programs in custody following sentence and to receive supervision and treatment by the Community Corrections Service to help him prevent relapse.

200. He has a trade and hopes to gain employment in it or work in the tattoo industry. He has not worked for a long time and will need support to seek and maintain employment.

201. The offender gave no evidence himself of remorse. He placed reliance upon statements made to Ms Duffy. The first of which appears at page 7 of her report. Ms Duffy recorded, the offender expressed strong regret over the death of the man and the impact on his family, and distress over being at Ms Restall’s home at the time the men arrived. That passage appeared in a section of the report dealing with the “offences” in which he gave a false account of the circumstances of the offending such as “two large men coming at [him], yelling and screaming” and he was “terrified”. He was moving backwards and trying to “talk them down”.

202. The second account appears on page 11 of Ms Duffy’s report where the offender is reported as expressing regret of the death of “the man” and a desire to change his life.

203. I do not consider the offender has demonstrated contrition and remorse.

204. It was accepted by the offender that general deterrence and specific deterrence would not carry less weight in this case because of “the offender’s psychological problems”. His offending occurred entirely as an adult.

205. Given the violent nature of this offence and its circumstances, I consider that general deterrence must play a role in sentencing.

206. Specific deterrence shall feature in the sentence imposed as earlier discussed in this judgment.

207. In all the circumstances, the only appropriate penalty of each count is fulltime incarceration. In sentencing of the offender, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the facts bearing upon the objective seriousness of the offence and subjective features.

208. Senior Counsel made reference to sentencing statistics. I accept his submission that “when I boiled them down no particular case was like this in the statistics having the same age range, prior record and so forth”. I also note Senior Counsel’s submission as follows:

This summary of the statistics underscores the blunt nature of the statistics and the limited value they have here in the way described by Garling J [in Brown v R [2014] NSWCCA 215 at [81] per Garling J].

212. Each sentence must be determined upon its own facts and circumstances as no two cases are the same, although I note the implications of the principle of consistency.

213. The offender also relied upon five authorities which were said to be comparative: R v MacDonald (Unreported, New South Wales Court of Criminal Appeal, 12 December 1995) (“MacDonald”); R v Appleby (Unreported, Supreme Court of New South Wales, 18 July 1997) (“Appleby”); R v Waterman [2002] NSWSC 1236 (“Waterman”); R v York [2007] NSWSC 1470 (“York”); and R v McDonald [2019] NSWSC 858. There are limitations upon the use of comparative cases in this fashion. However, there are some clear distinguishing factors of the objective circumstances of those matters and the present offences.

214. In MacDonald, Mr MacDonald seized a school child who had stolen some of his property at the beach to take him to the police. When the teacher responsible for the child attempted to loosen his grasp, Mr MacDonald fatally stabbed him with a fishing knife. He was sentenced to 5 years’ imprisonment with a minimum term of 3 years’ and an additional term of 2 years. This sentence reflected the “strong subjective circumstances in the respondent’s favour”, namely that he had low intellectual capacity and “emotional inadequacies that made it difficult to respond to stressful situations”. These circumstances do not apply to the offender in the present case.

215. The Court also noted “the fact that [Mr MacDonald] was reacting impulsively to a highly stressful situation, which was not of his own making”, which does not apply in this case.

216. In this case, the offender took the knife and table leg onto the roadway, moved towards Mr Vercoe when he approached the road and lunged at him with the knife. Upon the deceased coming to Mr Vercoe’s aid, the offender moved in the direction of his advance with the knife held towards the deceased.

217. On the facts and circumstances of this matter, it may not be concluded that the “situation” was not of his own making. The offender was clearly the instigator of the facts and circumstances underlying Count 2. Mr Vercoe’s actions were defensive. While the offender took some steps backwards and moved around the tree, he lunged at Mr Vercoe with a knife. Whilst the offender ran around the tree to the road, the direction of his movement was generally towards the deceased rather than towards the house. In moving to the road he continued to hold the knife and table leg. Whilst at the roadway, Mr Vercoe did wave the table or seat top at the offender, but the offender moved towards him as he was entering the road and, upon his tripping, the offender lunged at him.

218. In Appleby, Mr Appleby was sentenced to 6 years’ imprisonment with a minimum term of 3 years for stabbing his brother. Mr Appleby was awakened from a deep sleep (induced in part by having taken four Serepax tablets) by the noise of an altercation between his girlfriend and family, which progressed into an assault upon his girlfriend by his brother. Mr Appleby picked up the kitchen knife he had been using in the bedroom to peel fruit and lunged at his brother intending to hurt him so he would not come back. The Court noted that:

The essence of the criminality in the prisoner’s conduct being the use of the knife as a weapon to hurt the deceased and discourage him from returning to the fray. I accept the prisoner was responding to a highly stressful situation which was not of his own making.

219. The same observations may be made with respect to the offender who engaged in a situation of his own making in this case. The deceased’s actions were designed to effect a rescue as the offender moved toward him during his advance. In addition, none of the subjective factors apply to the offender in the present case. Mr Appleby was 23 years old and had no criminal history involving violent offences. He was remorseful and contrite – he pleaded guilty and became depressed and suicidal which required hospitalisation in prison. He had taken positive steps to rehabilitate himself, including undertaking drug counselling and rehabilitation, and participation in a methadone program.

220. The sentence imposed in Waterman was 6 years’ imprisonment with a minimum term of 3 years and 6 months. Mr Waterman, who was intoxicated, took a knife, which his mother left near the front door. He carried it to the scene after the co-offender told him that the deceased assaulted him. The co-offender identified the deceased. There was a conflict as to what occurred at the moment of the stabbing and manslaughter in the alternative was left to the jury on two bases: either that the offender deliberately stabbed the deceased but without the intent requisite for murder, or that he menaced the deceased with the knife and the deceased lunged towards him, impaling himself upon it. For the purpose of sentence Hidden J accepted the latter basis relying on the evidence of a reliable witness. For reasons given above, I do not accept that the deceased in this matter impaled himself on the knife if by that expression it was intended to indicate that the penetration of the deceased’s body arose solely from him running at the knife and the force of that motion being solely responsible for the penetration of his body.

221. In York, Adams J imposed a sentence of 5 years’ imprisonment with a non-parole period of 3 years in circumstances where the deceased moved towards the offender and the offender then moved his arm holding a knife (which had been used as an eating utensil) either at the same time or in response to the deceased’s action. Adams J found that:

[9] … I cannot be satisfied beyond reasonable doubt that the blow was intended aggressively as distinct from defensively.

…

[12] In considering the objective seriousness of this offence it is important to note that the offender did not pick up the knife for any aggressive purpose. It happened to be in his hand because he was using it as an eating utensil. This important fact differentiates this case from all those cases where a weapon is used to injure or kill and is obtained or brandished for that very reason. Unlawful use of a knife will usually be, and rightly so, a seriously aggravating feature of any assault. Here, however, the knife was only incidentally in the hand of the offender. It is only natural that he would attempt to use his right hand to fend off Mr Boa and, although at that point in time he was aware of the knife in his hand, he had not intended to cause any injury with it.

222. That is distinguishable from the present matter. As the deceased moved to rescue Mr Vercoe, the offender moved towards the deceased with the knife held upwards, such that it could penetrate the deceased’s body in a downward motion. As discussed above, the primary conduct of the offender was that of an aggressor.

223. In R v McDonald, a middle-aged severely intoxicated Mr McDonald stabbed his brother while he sat in a chair. He was sentenced to 6 years’ imprisonment with a non-parole period of 3 years. Harrison J found that Mr McDonald was “clearly provoked by the deceased” and given the amount of force applied it would not have been a significant injury if the blade had missed major blood vessels. Harrison J also took into account the fact that Mr McDonald came from an “indigenous background marked by significant deprivation and disadvantage”. This bears no analogy to the present matter, where there was no provocation and the offender did not suffer early socioeconomic disadvantage.

224. I shall take into account the s 166 Certificate offences concurrently with respect to the manslaughter charge.

225. As to Count 2, the offender submitted:

1. It was submitted that the total criminality of the offences and the offending is tempered by the application of the principle of totality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] (per Howie J); CPW v R (2009) 195 A Crim R 149; [2009] NSWCCA 105 at [71] (per James J).

2. A separate penalty should be imposed in this case for these offences: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]; see also Sheehan (No 2) v R [2006] NSWCCA 332 at [9], citing R H McL v The Queen (2000) 203 CLR 452 at [32], which came from Brennan J in Ryan v The Queen (1982) 149 CLR 1 at 22-23.

3. This is a discrete offence which is a part of a continuous series of events arising in a single episode of offending where the main count will involve a longer sentence and where the moral culpability and the objective seriousness of the offending in the more serious offence substantially contemplates the criminality involved in this offence.

4. However, although the offences arise out of, in many respects, a continuous course of conduct, inevitably in the circumstances there must be some partial accumulation (which is relatively small) to reflect the separate criminality in each offence: R v Gierczynski [2013] NSWSC 1870 at [81] (per Adamson J); R v Fazah [2014] NSWSC 231 at [48] (per Hidden J).

226. I accept those submissions. There shall be partial accumulation.

227. The offender submitted that special circumstances might be found in this case.

228. It was submitted the sentence will be a reasonably lengthy one. The offender is a recidivist with a long history of imprisonment. He is at risk of becoming institutionalised. He will need an extended period of supervision to re-adjust to and maintain community life. He needs counselling and supervision to counter against a possible relapse into the use of drugs and to cope with the impact of trauma on his psychology.

229. There can be no question that the offender will require close and careful supervision and treatment to readjust to community life.

230. In my assessment, given the length of the sentence which must necessarily be imposed upon the offender, the result of the statutory ratio will provide him with a suitable period for such supervision.

231. I do not, therefore, find special circumstances, save to the extent the sentence for manslaughter shall be adjusted to maintain the statutory ratio for the effective non-parole period for the overall sentence.

232. The offender has been in custody since his arrest on 7 November 2016. The sentence in this matter, with respect to count 2, will commence from the date of incarceration.

233. Mr Azzi could you please stand.

234. For the reasons I have given, Adam Jay Azzi, for the offence of use an offensive weapon with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act, you are convicted. Pursuant to s 44(1) of the Sentencing Act, the Court sets a non-parole period of 3 years and 9 months, commencing 7 November 2016 and expiring 6 August 2020. The balance of the term shall be 1 year 3 months from 7 August 2020 to 6 November 2021.

235. Adam Jay Azzi, for the manslaughter of Lloyd Frederick Kennedy, you are convicted. Pursuant to s 44(2) of the Sentencing Act, the Court sets a non-parole period of 7 years and 3 months, commencing 7 November 2017 and expiring 6 February 2025. The balance of the term shall be 2 years 9 months commencing 7 February 2025 to 6 November 2027.

236. The overall sentence is 11 years’ imprisonment, comprising of a non-parole period of 8 years and 3 months commencing on 7 November 2016. Adam Jay Azzi, you will be eligible for release on parole on 6 February 2025 and your last sentence will expire on 6 November 2027.

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Errata

As to [224] see R v Azzi (No 2) [2020] NSWSC 989.

Decision last updated: 30 July 2020