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R v Haydar (No.4)

R v Haydar (No.4)

Case [2017] NSWSC 615 19 May 2017

Aggravated & Exemplary Damages

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Haydar (No.4) [2017] NSWSC 615
Hearing dates: 5 May 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
(1) For the offence of the wounding of Ola Haydar with intent to cause grievous bodily harm to Salwa Haydar, I impose a sentence of imprisonment comprising a fixed term of 4 years commencing on 30 March 2015.
(2) For the offence of the murder of Salwa Haydar, I impose a sentence of imprisonment comprising a non-parole period of 16 years and 6 months with a balance of term of 5 years and 6 months to commence on 30 September 2016.
(3) The offender will not be eligible for release before 29 March 2033.

Catchwords: CRIMINAL LAW – sentencing – murder – wounding with intent to cause grievous bodily harm – offender suffering from abnormality of mind at time of offence – moral culpability reduced – no special circumstances – murder in mid-range of seriousness – wounding in low-range of seriousness – some accumulation imposed
Legislation Cited: Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Jonson v R [2016] NSWCCA 286
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617
Madden v R [2011] NSWCCA 254
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Barbieri [2016] NSWCCA 295
R v Haydar (No.3) [2017] NSWSC 159
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited: Not Applicable
Category: Sentence
Parties: The Crown
Haydar Haydar (Offender)
Representation:
Counsel:
M Barr (Crown)
J Stratton SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Zahr Partners (Offender)

File Number(s): 2015/95401
Publication restriction: Not applicable

REMARKS ON SENTENCE

On 30 March 2015, the offender, Haydar Haydar, murdered his wife, Salwa Haydar, and wounded his daughter, Ola Haydar, at his wife’s townhouse at Bexley.
The offender murdered his wife by stabbing her on a large number of occasions during the course of a frenzied, sustained and brutal attack. When his daughter, Ola, intervened to try and stop the attack, he stabbed and wounded her.
The offender handed himself into the police on the evening of 30 March 2015, and has been in custody ever since.
When first arraigned in the Supreme Court, and again on 22 February 2017, the offender entered a plea of not guilty of murder but guilty of manslaughter on the basis of substantial impairment by abnormality of mind. He entered a plea of not guilty to wounding with intent to cause grievous bodily harm.
On 31 March 2017, after a trial by judge alone, I…

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 Haydar (No.4)

Details

AGLC: R v Haydar (No.4) [2017] NSWSC 615
Case: [2017] NSWSC 615
Decision Date: 19 May 2017

CaseChat Overview and Summary

In the case of R v Haydar (No.4), the defendant was convicted of murder and wounding with intent to cause grievous bodily harm. The dispute was centred on the appropriate sentencing for these offences, particularly considering the defendant's mental state at the time of the offences. The matter was heard in the Supreme Court of Victoria. The defendant was found to be suffering from an abnormality of mind, which led to a reduced moral culpability, but the court found no special circumstances to further mitigate the sentence.

The legal issues before the court were to determine the appropriate range for sentencing for the murder and the wounding offence, considering the defendant's mental state. The court needed to balance the reduced moral culpability due to the abnormality of mind against the severity of the offences committed. The court was also required to decide the extent of any sentence accumulation for the concurrent offences.

The court examined the principles of sentencing for murder and wounding with intent, considering the principles of proportionality and deterrence. It found that the murder was in the mid-range of seriousness, while the wounding was in the low-range. The court also acknowledged the reduced moral culpability due to the defendant's mental state but found no special circumstances to further mitigate the sentence. The court imposed some accumulation for the concurrent offences, recognising the need to reflect the seriousness of each offence while also considering the defendant's mental condition. The court ultimately decided that the defendant should be sentenced to a term of imprisonment with a non-parole period, reflecting the mid-range seriousness of the murder and the low-range seriousness of the wounding offence.

Orders