R v AS (Sentence) [2023] NSWSC 1575

Supreme Court New South Wales

Medium Neutral Citation: R v AS (Sentence) [2023] NSWSC 1575 Hearing dates: 1 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Wilson J Decision: Having been convicted of the murder of Baby A, the offender is sentenced to a term of 18 years' imprisonment to date from 20 August 2020 and expiring on 19 August 2038. There will be a NPP of 12 years and 6 months imprisonment, expiring on 19 February 2033. Catchwords: CRIMINAL LAW – sentence – murder – killing of newborn baby by his father – gravity of offence – significance of obligation on parents to care for children – where diminished moral culpability due to offender's PTSD – finding of special circumstances – where lack of remorse – where offender's prospects of rehabilitation are reasonably positive – where need for general, but not specific, deterrence Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) Category: Sentence Parties: Rex (Crown) AS (Offender) Representation: Counsel: S Traynor (Crown) N Steel (Offender)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Velasquez Legal (Offender) File Number(s): 2020/243134 Publication restriction: Nil

JUDGMENT 1. AS arrived in Australia in 2009, having left his native Afghanistan and travelled here by a circuitous route. About two years later he met and married WN, bringing Ms N to Australia in 2013 to join him. In 2017 the couple had their first child, born after Ms N underwent an IVF process in Afghanistan. Their second child, Baby A, was conceived in the same way. He was born in Auburn on 20 April 2020. At the time of Baby A's birth, it might have been supposed that the offender and Ms N had achieved much that a new country could offer them: a home, two healthy children, and a safe place in which to raise their children. 2. For Baby A, however, the safety of his home environment proved tragically illusory. On 27 June 2020 the baby was fatally injured when the offender shook him vigorously, causing him a severe brain injury that was the direct cause of his death one month later, on 20 July 2020. The baby was 9 weeks old when he was fatally injured, and a little over 3 months of age when he died. 3. The offender stood trial before this Court from 2 August 2023 to 11 September 2023, charged with Baby A's murder. The jury returned a verdict of guilty to murder on the final day of the trial. It now falls to the Court to sentence AS for the murder of his son, consistent with the verdict of the jury. 4. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum penalty of life imprisonment and, in the circumstances of this case where the victim was a child under the age of 18 years, a standard non-parole period ("SNPP") of 25 years has been fixed by the legislature.