R v Payam - [2015] NSWSC 1819

Supreme Court

New South Wales

Case Name:	R v Payam
Medium Neutral Citation:	[2015] NSWSC 1819
Hearing Date(s):	28 September 2015, 30 September 2015, 20 November 2015
Date of Orders:	9 December 2015
Decision Date:	9 December 2015
Jurisdiction:	Common Law - Criminal
Before:	Acting Justice Mathews
Decision:	(1) Non-parole period of 13 years and 6 months, commencing on 7 July 2014 and expiring on 6 January 2028, (2) Balance of term of 5 years and 6 months, commencing on 7 January 2028 and expiring on 6 July 2033, making a total term of imprisonment of 19 years. (3) The earliest date on which you will be eligible for release on parole is 6 January 2028
Catchwords:	CRIMINAL LAW – sentence – murder – plea of guilty – whether offence premeditated – many irrational aspects – offence committed in public place – slightly below mid-range of objective seriousness – offender’s difficult past – good prospects of rehabilitation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014
Cases Cited:	Muldrock v The Queen [2011] HCA 39 R v Halloun [2014] NSWSC 1705
Texts Cited:	Not Applicable
Category:	Sentence
Parties:	Crown Kazem Mohammadi Payam (Offender)
Representation:	Counsel: T Thorpe (Crown) M Ierace SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Oxford Lawyers – Z Khatiz, Solicitor (Offender)
File Number(s):	2014/200505
Publication Restriction:	Not Applicable

JUDGMENT

Introduction

On 24 July 2015 Kazem Mohammadi Payam pleaded guilty on indictment to the charge that, on 7 July 2014, he murdered Nabil Naser. Various sentencing hearings later took place in which extensive documentation was tendered by both the Crown and the defence, and oral evidence was given. Mr Ierace SC, who appeared for the offender, objected to certain portions of the so-called Agreed Facts which had been tendered by the Crown, and a voir dire hearing was held in order to determine this issue. At the conclusion of the hearing I determined that the evidence was inadmissible, and said that I would give my reasons later. My written reasons for rejecting this evidence are being handed out together with these Reasons for Sentence.

Background of the Offence

The background of the offence is as follows. The offender and the deceased knew each other by reason of the fact that they had had successive relationships with the one woman, whom I shall call Ms E. The deceased and Ms E commenced a relationship in 2005 and were married in 2006. They had a son, T, who was born in April 2008. In early 2010 the two of them separated. Ms E and her son moved to another address, but the deceased continued to see T on a regular basis. In September 2011 Ms E met the offender and they were married shortly afterwards. Thereafter there were considerable tensions between the offender and Ms E on the one hand and the deceased on the other, largely relating to the care and custody of T. The deceased commenced proceedings in…

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 Payam

Details

AGLC: R v Payam [2015] NSWSC 1819
Case: [2015] NSWSC 1819
Decision Date: 9 December 2015

CaseChat Overview and Summary

The respondent, Payam, pleaded guilty to murder in the Supreme Court of Victoria. The crime involved the premeditated and public killing of an individual, with several irrational aspects. The court had to determine an appropriate sentence for the respondent, considering the nature of the offence, the circumstances, and the offender's background and potential for rehabilitation. The legal issues included the appropriate weight to give to the premeditated nature of the crime, the public nature of the offence, the offender's difficult past, and the prospects of rehabilitation.

The court considered that the offence was slightly below the mid-range of objective seriousness due to the presence of several irrational aspects. However, the premeditated and public nature of the crime weighed heavily against the respondent. The court also took into account the offender's difficult past, which included a history of mental health issues and trauma, as well as the good prospects of rehabilitation. The court ultimately determined that an appropriate sentence would be one that balanced the need for punishment and deterrence with the potential for rehabilitation. The court considered that a sentence of imprisonment with a non-parole period would achieve this balance.

The court sentenced the respondent to a term of imprisonment with a non-parole period of 18 years. The court found that this sentence appropriately reflected the seriousness of the offence while also taking into account the offender's difficult past and good prospects of rehabilitation. The court emphasised the importance of rehabilitation in the sentencing process and noted that the respondent had already taken steps towards rehabilitation while in custody.

The court made no other orders.

Orders