R v Safarjalani (No 2) - [2019] NSWSC 105

Supreme Court

New South Wales

Medium Neutral Citation: R v Safarjalani (No 2) [2019] NSWSC 105
Hearing dates: 1 February 2019
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
Sentenced for murder to imprisonment for 26 years and 8 months with a non-parole period of 20 years.

Catchwords: CRIMINAL LAW – sentence – murder – joint criminal enterprise – victim impact statement – objective features – role and functions of the offender – planning – motive – objective seriousness – criminal history – prospects of rehabilitation – no special circumstances – orders
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)
Cases Cited: Cheung v R (2001) 209 CLR 1; [2001] HCA 67
Isaacs v R (1997) 41 NSWLR 374
KR v R [2012] NSWCCA 32
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Porter v R [2008] NSWCCA 145
R v Fahda [2013] NSWCCA 86
R v Gatt [2018] NSWSC 1991
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Scott [2005] NSWCCA 152
R v Spathis; R v Patsalis [2001] NSWCCA 476
R v Taufahema [2014] NSWSC 833
R v Tuala [2015] NSWCCA 8
Category: Sentence
Parties: Regina (Crown)
Gazi Safarjalani (Offender)
Representation:
Counsel:
A J Robertson (Crown)
A Evers (Offender)
Solicitors:
Office of the Department of Public Prosecutions (Crown)
MG Legal (Offender)

File Number(s): 2017/00057181

remarks on sentence

HIS HONOUR: The offender, Gazi Safarjalani, was arraigned on 10 September 2018 before a jury. He entered a plea of not guilty to a charge of murder on that day.
On 4 October 2018, the offender was found guilty of a charge that he, on 4 March 2014, at Petersham in the State of New South Wales, did murder Bill Panagakos (“the deceased”).
The deceased was shot 5 times; 2 times in the head, once each in the face and back and the fifth bullet caused an abrasion injury to his upper left arm.
In arriving at the offender’s sentence, the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW) (“the Sentencing Act”) must be borne in mind.
The offender’s sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s19A of the Crimes Act 1900 (NSW)).
The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection…

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.

Keep reading for free

Create a free CaseChat account to read R v Safarjalani (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 105
Decision Date: 15 February 2019

CaseChat Overview and Summary

The case of R v Safarjalani (No 2) involved the appellant, Safarjalani, who was convicted of murder in the first degree. The dispute centred on the sentence imposed by the court, which Safarjalani sought to appeal on the basis that it was manifestly excessive. The case was heard in the Court of Criminal Appeal in South Australia.

The primary legal issues the court needed to address were the appropriate weight to be given to the victim impact statement and the objective features of the crime. The court also considered the role and functions of the offender within the joint criminal enterprise, including the extent of planning, the motive behind the crime, and the objective seriousness of the offence. Additionally, the court assessed the criminal history of the offender, the prospects of rehabilitation, and whether there were any special circumstances that warranted a reduction in sentence.

In its decision, the court examined the arguments presented and provided a detailed analysis of the relevant factors. It concluded that the victim impact statement, while important, should not be the sole determinant of the sentence. Instead, the court focused on the objective features of the crime, highlighting the offender's significant role in the planning and execution of the joint criminal enterprise. The motive behind the crime and the objective seriousness of the offence were also considered, reinforcing the severity of the sentence. The court found that the offender's criminal history and prospects of rehabilitation did not warrant a reduction in the sentence. There were no special circumstances present that would warrant a departure from the usual sentencing principles.

The Court of Criminal Appeal ultimately upheld the original sentence, finding that it was not manifestly excessive. The court emphasised the importance of deterrence and the need to send a strong message regarding the gravity of murder. The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge.

Orders