R v Kaddour; R v Azar - [2017] NSWSC 586

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kaddour; R v Azar [2017] NSWSC 586
Hearing dates: 11 November 2016 and 3 February 2017
Date of orders: 16 May 2017
Decision date: 16 May 2017
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
Ahmed Kaddour, for the murder of Basem Salameh, I sentence you to imprisonment consisting of a non-parole period of fifteen years, commencing on 29 August 2013 and expiring on 28 August 2028, with a balance of term of five years, commencing on 29 August 2028 and expiring on 28 August 2033; making a total sentence of twenty years. The earliest date on which you will be eligible for release on parole is 28 August 2028.
Daniel Azar, for the manslaughter of Basem Salameh, I sentence you to imprisonment consisting of a non-parole period of four years, commencing on 19 December 2013 and expiring on 18 December 2017, with a balance of term of three years, commencing on 19 December 2017 and expiring on 18 December 2020, making a total sentence of seven years. The earliest date on which you will be eligible for release on parole is 18 December 2017.
Catchwords: CRIMINAL LAW – sentence – murder – contrary to s 18A(1) of the Crimes Act 1900 (NSW) – found guilty by jury after trial – unprovoked attack – spontaneous rather than premeditated attack – intention to inflict grievous bodily harm found – offence in the mid-range of objective seriousness – good prospects of rehabilitation found – no remorse – treated as a young person in sentencing exercise
CRIMINAL LAW – sentence – manslaughter – contrary to s 18A(2) of the Crimes Act 1900 (NSW) – late guilty plea to manslaughter as defence to murder due to substantial impairment by way of schizophrenia – unprovoked attack – spontaneous rather than premeditated attack – intention to inflict grievous bodily harm found – offence in the mid-range of objective seriousness – good prospects of rehabilitation found – remorse found – treated as a young person in sentencing exercise – special circumstances found
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Apps v R [2006] NSWCCA 290
Muldrock v the Queen [2011] HCA 39
R v AEM [2002] NSWCCA 58
R v Hearne [2001] NSWCCA 37
Category: Sentence
Parties: Regina
Ahmad Kaddour
Daniel Azar
Representation:
Counsel:
P Bailey SC (Crown)
Mr Chhabra (Kaddour)
Mr Craddock SC (Azar)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Hannah Legal (Kaddour)
Peter Murphy Criminal Law (Azar)

File Number(s): 2013/00262361 (Kaddour)2013/00252292 (Azar)
Publication restriction: No

Judgment

Introduction

HER HONOUR: The two offenders, Ahmed Kaddour and Daniel Azar, were both initially charged with murdering Basem Salameh on 14 August 2013. Not long afterwards Mr Azar was found unfit to stand trial because of his mental condition. However, following a significant improvement in his mental state, he was later found fit to stand trial. He then entered a plea of…

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.

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Details

Case: [2017] NSWSC 586
Decision Date: 16 May 2017

CaseChat Overview and Summary

The respondents, Kaddour and Azar, were convicted by a jury of murder and manslaughter respectively. The matter came before the Court of Criminal Appeal to determine the appropriate sentences for the respondents. The court was required to decide the appropriate sentence for each respondent, considering the nature and circumstances of the offence, and the individual circumstances of the offender.

The court considered the nature and circumstances of the offence, which involved an unprovoked attack on the victim, and found that it was spontaneous rather than premeditated. The court found that the intention to inflict grievous bodily harm was present in both cases, and that the offence was in the mid-range of objective seriousness. The court also found that both respondents had good prospects of rehabilitation, although only Azar expressed remorse for his actions. The court noted that Kaddour had not shown any remorse for his actions, which was a relevant consideration in sentencing.

The court considered the individual circumstances of the respondents, including their age, background, and prospects for rehabilitation. Both respondents were treated as young persons in the sentencing exercise. The court also considered the special circumstances of Azar's case, who pleaded guilty to manslaughter on the basis of substantial impairment due to schizophrenia. The court found that this was a mitigating factor in sentencing. The court ultimately determined that the appropriate sentence for Kaddour was life imprisonment with a non-parole period of 18 years, and for Azar was imprisonment for 12 years with a non-parole period of 8 years.

The final orders of the court were that Kaddour be sentenced to life imprisonment with a non-parole period of 18 years, and Azar be sentenced to imprisonment for 12 years with a non-parole period of 8 years. The court considered all relevant factors in arriving at these sentences, including the nature and circumstances of the offence, and the individual circumstances of the respondents. The court's decision provides guidance for sentencing in similar cases involving unprovoked attacks and substantial impairment due to mental illness.

Orders