R v Fazah - [2014] NSWSC 231

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v FAZAH [2014] NSWSC 231
Hearing dates: 14 February 2014
Decision date: 13 March 2014
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
For wound with intent to cause GBH, sentenced to imprisonment for 7 years, NPP 5 years, from 1.1.11. For murder, sentenced to imprisonment for 24 years, NPP 18 years, from 1.1.13. Aggregate sentence 26 years, NPP 20 years, from 1.1.11.

Catchwords: CRIMINAL LAW - sentence - murder of offender's 2 year old daughter, wounding of his wife with intent to cause her grievous bodily harm - spontaneous attacks - background of exposure to war in Afghanistan, capture and torture by Taliban - PTSD and other psychological defects
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 54B
Cases Cited: Muldrock v The Queen [2011] HCA 39, 244 CLR 120
Category: Sentence
Parties: Regina (Crown)
Farden Fazah (Offender)
Representation: Counsel:
Ms K Shead (Crown)
Mr P Winch (Offender)
Solicitors:
S Kavanagh - Solicitor for the Director of Public Prosecutions (Crown)
SE O'Connor - Legal Aid Commission (Offender)

File Number(s): 2011/9681

SENTENCE

The offender, Farden Fazah, has pleaded guilty to the murder of his child and the wounding of his wife with intent to cause her grievous bodily harm, the two offences having been committed in the course of an incident at their home unit in Canley Vale on 1 January 2011. His plea of guilty to the charge of wounding with intent in respect of his wife was accepted by the Crown in satisfaction of a count of wounding with intent to murder her.

Murder carries a maximum sentence of imprisonment for life and a standard non-parole period in this case of 25 years, while wounding with intent to cause grievous bodily harm carries a maximum sentence of 25 years imprisonment with a standard non-parole period of 7 years.

Facts

An agreed statement of facts records that the offender and his wife, Rasa Fazah, were both born in Afghanistan. They met in 2003 in Pakistan, and married in 2006 in Afghanistan. The offender came to Australia, where his family were living, and he was granted Australian citizenship in July 2007. In December of that year Rasa joined him, having been granted a spousal visa.

At the time of the offences the offender was 32 years old, and Rasa was 24. The child who was the victim of the murder was their daughter, Maria, who was born in September 2008. She was their only child, and she was 2 years old when she met her death.

The relationship between the offender and his wife was troubled. The offender was controlling of her, forbidding her to manage her own money or to buy groceries on her own. Shortly after she arrived in Australia, there was an argument during which she cut her wrist with a knife. The offender took the knife from her and stabbed himself in the stomach area, saying words to the effect of, "Before you…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Fazah

Details

AGLC: R v Fazah [2014] NSWSC 231
Case: [2014] NSWSC 231
Decision Date: 13 March 2014

CaseChat Overview and Summary

The case before the court involved a man who had committed the murder of his two-year-old daughter and the wounding of his wife with intent to cause grievous bodily harm. The offender had a background marked by exposure to war in Afghanistan, capture, and torture by the Taliban, which resulted in post-traumatic stress disorder and other psychological defects. The offender's counsel submitted that these circumstances should be taken into account in sentencing. The court was required to determine the appropriate sentence for the offender, considering his background and mental health issues.

The court had to weigh the severity of the crimes committed against the offender's background and mental health conditions. The legal issues involved balancing the need for retribution and deterrence with the circumstances that might mitigate the offender's culpability. The court considered the impact of the offender's PTSD and other psychological defects on his capacity to control his actions at the time of the crimes. The court also needed to decide whether the spontaneous nature of the attacks and the offender's background should be taken into account in determining the sentence.

The court found that while the crimes were heinous, the offender's background and mental health issues were significant mitigating factors. The spontaneous nature of the attacks and the impact of the offender's exposure to war and torture were also considered. The court concluded that a sentence of imprisonment was appropriate but needed to be balanced with the need for rehabilitation. The court imposed a sentence of imprisonment with a non-parole period, reflecting the seriousness of the crimes and the mitigating factors. The final orders of the court included the sentence of imprisonment with a specified non-parole period.

Orders