R v Azar [2004] NSWSC 797

New South Wales Supreme Court

CITATION : R v Azar [2004] NSWSC 797 10/05/04 - 14/05/04 17/05/04 - 21/05/04 24/05/04 - 27/05/04 HEARING DATE(S) : 31/05/04 1/06/04 - 2/06/04 4/06/04 13/08/04 JUDGMENT DATE : 3 September 2004

JURISDICTION: Common Law Division Criminal List JUDGMENT OF : Kirby J DECISION : Sentenced to imprisonment for 17 years commencing on 22 August 2001 and expiring on 21 August 2018, with a non parole period of 12 years. Eligible for release on parole on 22 August 2013.

CATCHWORDS : CRIMINAL LAW - murder - significant but not substantial impairment through abnormality of mind - shooting after childhood sexual assault - extra-curial punishment LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Previtera (1997) 94 A Crim R 76 CASES CITED : R v Allpass (1993) 72 A Crim R 561 R v Daetz (2003) 139 A Crim R 398 PARTIES : Regina Joseph Melhem Azar FILE NUMBER(S) : SC 70090/02 COUNSEL : M Hobart (Crown) B M Niven (Acc) SOLICITORS : J Walker - DPP (Crown) K Robinson - LAC (Acc)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Friday 3 September 2004

70090/02 REGINA v JOSEPH MELHEM AZAR

JUDGMENT ON SENTENCE 1 KIRBY J: Joseph Melhem Azar was charged with having murdered Sami Sarraf on 23 June 2001. He pleaded not guilty to murder, but guilty of manslaughter. He acknowledged having shot Sami Sarraf. He claimed that at the time of the shooting he was substantially impaired by an abnormality of mind. The jury, however, was not persuaded. They returned a verdict of guilty of murder. 2 It remains for me to pass the sentence. I must first determine the facts relevant to the sentencing discretion. They must be determined in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Azar, it is enough that they should be proved on the balance of probabilities. 3 The fundamental issue in the trial concerned Mr Azar's state of mind at the time of the shooting. Why did he shoot Sami Sarraf? His criminality is to be judged by reference to that issue. Was it, as the Crown alleged, an act of revenge, premeditated and the more serious because he had used a firearm (s21A(2)(c) Crimes (Sentencing Procedure) Act 1999). Was it, on the other hand, the action of someone suffering from a psychiatric condition, significantly impaired although not substantially impaired by an abnormality of mind? 4 The circumstances in which the incident occurred are capable of providing insight into that issue.