Supreme Court New South Wales 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 1. 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 not guilty of murder but guilty of manslaughter on the basis of substantial impairment, a plea which was accepted by the Crown. Mr Kaddour pleaded not guilty, and the matter went to trial in September 2016. On 5 October 2016 the jury returned with a verdict of guilty of murder. Both men now come to be sentenced in relation to the death of Mr Salameh, albeit in relation to different offences: Mr Kaddour for Mr Salameh's murder, and Mr Azar for his manslaughter. 2. It is appropriate to commence with a description of the circumstances surrounding the killing of Mr Salameh. Circumstances of the killing 1. At the time of his death the deceased, Basem Salameh, was living in unit 10 at 89 Blaxcell Street, Granville. This was a residential unit block managed by the Department of Housing. It consisted of a number of bed-sitting room units with common recreational areas. The two offenders, Mr Kaddour and Mr Azar, together with Mohamed El-Chami, were regular visitors at the deceased's unit, and were well known to other residents of the complex. 2. At about 10 am on 14 August 2013, Mr Salameh's body was found in his unit by Housing Commission contractors. They had entered the apartment because they were concerned that a window to the unit had been broken, and there appeared to be blood coming from the apartment. Inside they found what at first appeared to be a large pile of laundry and linen on the floor. The deceased's foot was protruding from it. A table top was also lying on top of the body. The unit was in extreme disarray, and there was blood staining throughout. 3. Forensic police attended the scene shortly afterwards. They were accompanied by Dr Johan Duflou, the forensic pathologist. He found numerous blunt force injuries to the head and the body of the deceased. The primary cause of death consisted of blunt force injuries to the head, leading to brain haemorrhages. In addition, there were a number of sharp force injuries, with multiple lacerations and fractures to the head, neck, trunk, limbs, the base of the skull and the nasal bones. The deceased's right eye had been completely ruptured. A number of his ribs had been broken by force which Dr Duflou described as being consistent with stomping. An unspent bullet was found at the back of the deceased's throat. 4. The last confirmed sighting of the deceased was at about 5.00pm the previous day, when he was seen on the porch of his unit in the company of unidentified friends. 5. An event occurred a little later that evening which must have at least partially precipitated the killing. This happened when both Mr El-Chami and Mr Azar were sleeping, separately, inside Mr Salameh's apartment, and Mr Salameh apparently pinched Mr Azar on the bottom. It was not a hard or painful pinch, and one must assume that it was done merely as a gesture of friendship, or possibly to wake him up. However, Mr Azar took it to be something of a homosexual advance, and he was extremely angered by it. As we now know, Mr Azar was suffering from a psychotic illness at that time, and his over-reaction to Mr Salameh's action was almost certainly, at least in part, attributable to that illness. 6. Mr El-Chami was woken up by Mr Azar's angry response. The two of them then left the unit. According to Mr El-Chami, Mr Salameh had already locked the front door, so in order to leave the apartment they had to break the window leading to the outside walkway, and climb out of it. Other evidence indicated that this probably occurred at about 8.00 pm. 7. Some time later, the two of them met up with Mr Kaddour, who was told what had happened. Later again the three of them returned to the deceased's unit, which was when the fatal attack commenced. This was between about 1.30 and 2.00am on 14 August. However, Mr El-Chami left very shortly after the attack started, leaving the two offenders, Mr Kaddour and Mr Azar, alone with the deceased. The two of them then proceeded to inflict the fatal injuries. Their weapons primarily consisted of various objects and pieces of furniture which were inside the apartment. Mr Kaddour gave evidence at his trial in which he denied any involvement in the killing of the deceased, saying that Mr Azar was the principal assailant. However, his palm print, already covered by the deceased's blood, was found on a pole which was very likely to have been one of the weapons used against Mr Salameh. Moreover, he was seen on CCTV carrying a pole, no doubt the same one, when he left Mr Salameh's apartment earlier that night and when he came back on that last occasion. In cross-examination he was unable to explain why he had it with him. This, together with the evidence of Mr El-Chami, led to a strong Crown case at his trial. 8. Mr El-Chami re-entered the apartment when Mr Salameh was already lying mortally wounded on the floor, and was not involved in the events immediately preceding his death. 9. Mr El-Chami later told police that immediately after the three of them had left Mr Salameh's apartment, Mr Kaddour threw a ball which broke the window of an adjacent apartment. He told the others that he was doing this as a means of raising the alarm, so that the police would be called. The apprehension of the offenders 1. On 16 August 2013 police arrested Mr Azar and Mr El-Chami pursuant to a forensic procedure warrant. Both voluntarily participated in electronically recorded interviews in which they denied any knowledge of the murder of Mr Salameh. After photographs, fingerprints and DNA samples were taken from them, they were released. Subsequent enquiries revealed palm prints of both Mr Kaddour and Mr Azar on weapons which had been used against the deceased. 2. Over the weekend of 17 and 18 August, Mr Azar had a number of conversations with members of his family, in which he made admissions about his involvement in the killing of the deceased. On 19 August, some of those family members provided statements to police about these admissions. Later that day, police again arrested both Mr Azar and Mr El-Chami. On this occasion, Mr Azar told police that Mr Salameh had been assaulted by an unnamed person in the presence of himself, Mr Kaddour and Mr El-Chami, and that the three of them had endeavoured, unsuccessfully, to prevent these attacks. However, the details he gave of this event did not match the forensic evidence, and Mr Azar was then charged with Mr Salameh's murder. Mr El-Chami was also charged with murder, but later pleaded guilty to a much lesser charge, as I shall describe very shortly. 3. On 29 August 2013, Mr Kaddour was arrested and charged with the murder of Mr Salameh. He entered into an electronically recorded interview with police in which he denied any participation in the killing of the deceased, saying that the last time that he saw Mr Salameh was on the Tuesday, the day before the body was found. At his trial, he gave evidence in which he admitted that he lied to police on that occasion. 4. This brings me to say something about Mr Kaddour's trial. However before I do so, it is necessary to describe what has happened in relation to Mr El-Chami, and the role he has played in various aspects of this case. Mr El-Chami's Role 1. On 19 August 2013, the day of Mr El-Chami's arrest, police conducted further interviews with him in which he at first denied any personal knowledge of the killing. However, he later gave an account of these matters which is accepted to be an essentially accurate one. This started with a description of the action which probably precipitated the killing, namely the pinching by Mr Salameh of Mr Azar's bottom. Some time later, Mr El-Chami said the three of them returned to the deceased's apartment which was when the fatal assault took place. He described both Mr Azar and Mr Kaddour as hitting Mr Salameh, and said that at this point he left the apartment and went down to the street. When he returned, Mr Salameh was already lying on the ground, mortally wounded. Mr Azar was holding a hacksaw near Mr Salameh's throat, which Mr El-Chami kicked out of his hands. Mr Kaddour was throwing clothes on top of Mr Salameh's body. Mr El-Chami then left again. 2. Mr El-Chami was then charged with Mr Salameh's murder, a charge which was later reduced to a much lesser charge, namely an offence under s 316(1) of the Crimes Act 1900 (NSW) ("the Crimes Act"), of concealing a serious offence. He pleaded guilty to this charge, and undertook to assist the prosecution by giving evidence for the Crown against the two offenders. On 19 April 2016 he was sentenced by Schmidt J of this Court to a suspended sentence of three months, subject to his entering into a good behaviour bond and providing the assistance which he had undertaken to give. At that time, as her Honour noted, Mr El-Chami had already spent several months in custody, bail refused, after he was first charged with murder. There were a number of other significant mitigating factors, particularly his plea of guilty and his offer to provide assistance to the authorities in relation to the charges against Mr Azar and Mr Kaddour. As it turned out, his assistance was not required in the case against Mr Azar, given the latter's plea of guilty to manslaughter. However, Mr El-Chami gave significant evidence for the Crown in the trial of Mr Kaddour. Indeed, he was the Crown's principal witness in that trial. 3. This returns me to say something, albeit very briefly, about Mr Kaddour's trial. The trial of Mr Kaddour 1. The trial commenced on 19 September 2016. Mr Scragg of counsel represented Mr Kaddour. The principal witness for the Crown, as already mentioned, was Mr El-Chami. He said that the attack was initiated by Mr Azar punching Mr Salameh, after which Mr Kaddour "launched himself" at the deceased. In cross-examination, he agreed with Mr Scragg that Mr Kaddour could have been going to Mr Salameh's defence when he did this. It was at this point that Mr El-Chami left the apartment, so he was unable to give further details of his observations. By the time he returned to the unit, the deceased, as already mentioned was lying, mortally wounded, on the floor. 2. It was towards the very end of Mr El-Chami's evidence that he was taken to a particularly significant piece of evidence in relation to Mr Kaddour's involvement in Mr Salameh's killing. Mr El-Chami was reminded of a statement that he had made to the police on 20 August 2013, six days after the killing, in which he said that Mr Kaddour told him, very shortly after the killing, that he had smashed a table on Mr Salameh's head, and that he also said something about stabbing Mr Salameh with a screwdriver. 3. In addition, as already mentioned, Mr Kaddour's palm print, already containing the blood of the deceased, was found on a pole which was very likely to have been used in the attack on the deceased. 4. Mr Kaddour gave evidence at his trial in which he said that his purpose in going to the deceased's apartment on that last occasion, was to try to "patch things up", given the deep division that had occurred between Mr Azar and the deceased. He said the attempt was unsuccessful, and Mr Azar proceeded to attack the deceased. He denied that he himself participated in the attack. On 5 October 2016, as already mentioned, the jury returned with a verdict of guilty of murder. 5. I turn now to discuss the aggravating and mitigating factors to be taken into account on sentence pursuant to s 21A of the Sentencing Act 1999 (as amended) ("the Act") as applicable to the offences, rather than to the offenders. I shall be referring to the factors relating to the offenders personally a little later. Aggravating and mitigating factors relating to the offences 1. The applicable aggravating factors which are not inherent on the offences of murder or manslaughter are as follows: first, that the offence was committed in company, pursuant to par (2)(e), also that the offence was committed in the home of the victim pursuant to par (2)(eb). Certainly the offenders were guests in the home, so this is not the powerful factor that it would be had they been intruders. Nevertheless, a person should always be able to feel safe from physical violence within the confines of their own home. The offence also involved the use of a weapon pursuant to par (2)(c), but that is a frequent product of these offences, so I do not propose to treat it as a matter of any great significance. 2. The sole potentially mitigating factor, pursuant to par (3)(b), is that the killing of Mr Salameh was not part of a planned or organised criminal activity. The applicability of this factor relies upon the assumption, in the offenders' favour, that there was no pre-arrangement between them that they would assault the deceased, and accordingly that what happened on that last fatal occasion, was a spontaneous, as opposed to a premeditated attack. At Mr Kaddour's trial, the Crown relied on the concept of joint criminal enterprise. However, the Crown case was not necessarily dependent on that concept, given that there was clear evidence from which the jury could infer that Mr Kaddour himself attacked Mr Salameh. In any event, a joint criminal enterprise can implicitly be entered into at the last moment. The concept does not necessarily depend on premeditation. In all the circumstances, I consider that it is appropriate that I take the view most favourable to the defence, namely that this was not a premeditated attack. 3. At this point, I turn to say something about the respective roles of the two offenders in the killing of Mr Salameh. The role of the two offenders in the killing of Mr Salameh 1. It was submitted on behalf of Mr Kaddour, that I should find beyond reasonable doubt, that Mr Azar initiated the assault on Mr Salameh and was the primary offender in his killing. Certainly it was Mr Azar's over-reaction to Mr Salameh's earlier action which led to the assault in the first place – an over-reaction which was no doubt the product of Mr Azar's psychosis. In addition, Mr El-Chami described Mr Azar as throwing the first punch at Mr Salameh. Accordingly, there is clear evidence from which I can find beyond reasonable doubt that he was the person who initiated the assault. 2. As to who, if anyone, was the principal assailant from then on, the agreed facts tendered by the Crown in relation to Mr Azar's sentencing, place primary responsibility upon Mr Kaddour as the principal assailant. Such a concession, of course, can never be allowed to replace the evidence, if there is reliable evidence to the contrary. Nor can it be a sufficient basis on its own to give rise to a finding beyond reasonable doubt, if it is contested by one of the parties, as it is here. In this case, there is no reliable evidence at all on this matter. The only two people who were present during the fatal assaults on Mr Salameh, each attribute primary responsibility to the other. Accordingly, I would have considerable difficulty in finding beyond reasonable doubt that either of them played a dominant role in the assaults. It was also submitted that I could not find beyond reasonable doubt, that Mr Kaddour assaulted the deceased with the metal pole. However, given the whole of the evidence in his trial, together with the jury's verdict, I have no difficulty in finding this established to the requisite degree. 3. At the end of the day, it is impossible to be satisfied beyond reasonable doubt as to the precise role played by either of the two offenders in the fatal attack on Mr Salameh, and in particular which of them played the dominant role – assuming that one of them did. I am forced to the conclusion that it was the combined actions of the two of them which led to Mr Salameh's death. 4. A central part of the sentencing process is to determine the objective seriousness of the offence in the circumstances of the particular case, a matter to which I now turn. The objective seriousness of the killing of Mr Salameh 1. Submissions were made by the Crown prosecutor and each of the two defence counsel about this issue. I do not propose to go through them in any detail. However, I accept the Crown prosecutor's description of the fatal assault on Mr Salameh as "serious, segmented and sustained" to be essentially accurate. It is impossible to imagine the horrific trauma that Mr Salameh must have endured in those last minutes of his life – both physically and mentally. He was helpless and in his own home when he was subjected to brutal attacks from two people whom he had always considered to be his friends. Nor can it be said that there was any provocation offered by Mr Salameh. The pinching of Mr Azar's bottom earlier in the evening by no means qualifies as any form of justification or excuse for what happened later. 2. On the other hand, as already indicated, it was a spontaneous as opposed to a premeditated attack, which significantly reduces the objective seriousness of the offence. 3. It was submitted by counsel for both offenders that I could not find beyond reasonable doubt, that their respective clients had an intention to kill Mr Salameh. Indeed, Mr Craddock SC, who appeared for Mr Azar, submitted that I could not find that his client had an intention to cause grievous bodily harm, and that I should find that he acted with reckless indifference to human life. 4. Given the large number of injuries inflicted on Mr Salameh, and the extremely serious nature of some of them, I have no difficulty in finding, beyond reasonable doubt, that the persons who inflicted those injuries must have intended, at the very least, to inflict grievous bodily harm. It is likely that they also intended to kill him, but I am unable to find that matter proved beyond reasonable doubt. Accordingly, the offenders are to be given the benefit of that doubt. As the Court of Appeal has confirmed on a number of occasions, this is a significant matter in assessing the objective seriousness of a particular offence of murder. (See R v Hearne [2001] NSWCCA 37 and Apps v R [2006] NSWCCA 290). 5. Taking all these matters into account, I find that this case falls within the mid- range of objective seriousness. 6. I turn now to discuss the subjective issues relating to each of the two offenders, commencing with Mr Kaddour. Mr Kaddour's background 1. Much of the information about Mr Kaddour's background comes from a psychiatric report dated 1 February 2017 of Dr Olaf Nielssen, who interviewed Mr Kaddour on 6 December 2016 and again on 31 January 2017. 2. Mr Kaddour is now 23 years old, having been born on 1 May 1994. He was 19 at the time of this offence. He was born in Australia, but his parents were Sunni Muslims from Lebanon. He was the second of his mother's five children, and on all accounts his early childhood was relatively uneventful. However, when he was 12 years old, his father died suddenly and unexpectedly of a heart attack. This was a life-changing event for the young Ahmed Kaddour. On his own account, he started taking illegal drugs, which in turn triggered depression and severe anxiety, including panic attacks. He also, to use his own words, started "hanging out with the wrong crowd." Nevertheless, he remained at school until part way through year 11, at which stage he left school to start an apprenticeship as a plumber. In the meantime, his mother had re-married, and after a while, the young Ahmed ceased his apprenticeship and went to work with his stepfather as a cement renderer. A further traumatic event occurred not long before this offence, when his much-loved young half-brother, aged less than two, was diagnosed with a potentially deadly form of cancer. Mr Kaddour on all accounts was devastated by this news. His mother also has significant health issues, which are of serious concern to Mr Kaddour. 3. Mr Kaddour's criminal history shows that in June 2013, about six weeks before this offence, he committed offences of larceny and dishonestly obtaining a financial advantage by deception, for which in July 2014 he was placed on a bond to be of good behaviour for 18 months. At that latter date, of course, he was already in custody in relation to the present matter. Given the relatively minor penalty which was imposed, I accept that these offences cannot have been particularly serious by nature. 4. Mr Kaddour has been in custody since 29 August 2013, when he was first arrested and charged with this offence. Whilst in custody, he committed the offences of possessing a mobile phone and possessing a prohibited drug, for which he was sentenced at Blacktown Local Court to fixed terms of imprisonment of eight months and three months respectively, commencing on 27 April 2016. He told Dr Nielssen that he had the mobile phone so that he could keep in touch with his family and communicate with his terminally ill young brother. Between November 2013 and February 2016, he committed a number of breaches of prison disciplinary rules, for which he was punished by being denied benefits such as contact visits and buy-ups. However, as he pointed out to Dr Nielssen, these were all relatively early in his period of imprisonment. Over recent times, he said, he had matured, and there had been no further conduct problems. He told Dr Nielssen that he was no longer interested in drugs, and that he did not intend to resume drug use. 5. Mr Kaddour told Dr Nielssen that he was depressed because of his situation. He often had difficulty sleeping at night, and felt lazy and lethargic. On several occasions since his incarceration he has suffered the symptoms of panic attacks, but he received no treatment or counselling after these episodes. 6. Dr Nielssen's diagnosis was that Mr Kaddour was suffering from a depressive illness. His earlier drug use had been consistent with a drug addiction. However the doctor considered that by the time he saw Mr Kaddour he was no longer suffering from a substance use disorder. 7. Dr Nielssen considered that Mr Kaddour had reasonable prospects of long-term rehabilitation. He has the support of his mother, stepfather and siblings. He is not unintelligent, and he has a history of stable employment from the time he left school until his arrest for the current offence. 8. There is no doubt as to Mr Kaddour's support from family and other members of the community. No fewer than eight glowing letters of reference were tendered on his behalf. These were from his mother, his sister, his brother-in-law, and other family friends and neighbours, including his previous employer, who spoke extremely highly about Mr Kaddour's work ethic. He said that he would want Mr Kaddour to come back and work for him on his release. 9. At this point it is appropriate to turn to the aggravating and mitigating factors in relation to Mr Kaddour personally, which are required to be taken into account on sentence pursuant to s 21A of the Act. Aggravating and mitigating factors relating to Mr Kaddour personally 1. The only potentially aggravating factor under s 21A(2) is, pursuant to par (d), that the offender has a record of previous convictions. However, given the relatively minor nature of the two offences apparently committed in June 2013, I do not treat this as a matter of any real significance. 2. As to any mitigating factors, I accept in the light of all the evidence that Mr Kaddour has good prospects of rehabilitation and is thus unlikely to re-offend, these being relevant matters under s 21A(3)(g) and (h). 3. It is accepted on behalf of Mr Kaddour that he has shown no remorse in relation to this offence. 4. Although the youth of the offender is not referred to in s 21A(3), it is nevertheless a highly significant matter on sentence, as confirmed by numerous decisions of the Court of Criminal Appeal. Mr Kaddour, as already mentioned, was 19 at the time of this offence, and is thus, in my view, to be treated as a young person. To quote the Court (Beazley JA, Wood CJ at CL and Sully J) in R v AEM [2002] NSWCCA 58 at [97]: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role in the need to have regard to individual treatment aimed at rehabilitation." Sentences for murder 1. The maximum sentence for murder is life imprisonment. There is a standard non-parole period of 20 years. However, since the High Court judgment in Muldrock v the Queen [2011] HCA 39, this has been recognised as a guide post rather than a starting point, as had previously been considered. Although the offence itself in this case is within the mid-range of objective seriousness, the subjective matters I have already mentioned, particularly Mr Kaddour's youth and his good prospects of rehabilitation, point in my opinion, to a non-parole period significantly below the standard one. A further relevant matter is the fact that a lengthy period of incarceration may well be particularly difficult for him, given the health issues faced by his close family members. 2. Mr Kaddour has been in custody since his arrest for this offence on 29 August 2013. As already mentioned, he committed two offences when he was in prison on remand, for which he was sentenced, on 27 April 2016, to a total fixed term of eight months imprisonment. Mr Chhabra of counsel, who appeared for Mr Kaddour at the sentencing hearing, submitted that his imprisonment for this offence should nevertheless commence on the date he first went into custody. Given that they were minor offences, and taking into account the other matters raised by Mr Chhabra in this regard, I propose to accede to this submission. His sentence will therefore commence on 29 August 2013. 3. I will specify that sentence shortly. In the meantime, I turn to deal with matters relevant to Mr Azar. The situation in relation to Mr Azar 1. The situation in relation to Mr Azar is completely different from that in relation to Mr Kaddour. Although they were both responsible for the killing of Mr Salameh, the relevant offence in Mr Azar's case is manslaughter, to which he has pleaded guilty. Before discussing that aspect of the matter, however, it is necessary to describe Mr Azar's background. This is; in any event, highly relevant to his culpability for this offence, as it was his mental condition at the time of the killing which served to reduce the charge in his case from murder to manslaughter. 2. Much of the information about Mr Azar's background derives from the report of the forensic psychiatrist, Dr Kerri Eagle, dated 23 June 2016. Dr Eagle had interviewed Mr Azar at Long Bay Gaol on 25 May 2016. 3. Mr Azar was born on 18 February 1995, and was therefore 18 at the time of this offence. He is now 22 years old. His parents were born in Lebanon, but came to Australia before he was born. He was the youngest of five children. He apparently displayed behavioural problems when he was quite young, and was expelled from primary school for fighting. He went to a behavioural college where he finished year 10. He was experiencing learning problems with reading, writing and maths, and he then left school and worked as a spray painting apprentice. 4. On all accounts, Mr Azar started using illegal drugs, particularly cannabis, at 14 or 15 years of age. He continued taking large quantities of cannabis on a daily basis until he went into custody for the present offence. In addition, he was smoking methamphetamines and taking Xanax. His criminal history shows that on 22 June 2013 he was charged with possessing a prohibited drug, for which he was later sentenced to two months imprisonment from 2 October 2013 to 1 December 2013. On 5 July 2013, only five weeks before the present offence, he committed the offence of break, enter and steal, for which he was later sentenced to 16 months imprisonment commencing on 2 December 2013 with a non-parole period of three months. Mr Azar was already in custody, bail refused, in relation to the present offence throughout those periods of imprisonment. This is a relevant matter as to the commencement date of the sentence I am about to impose. In the normal course of events, that sentence would commence on the date he first went into custody in relation to this matter, namely on 19 August 2013. However, if those other sentences were fully taken into account, his sentence would commence five months later, on 19 January 2014. In a recent written submission to the Court, Mr Azar's solicitor submitted that, given that those offences occurred when Mr Azar was ingesting mind-altering drugs, together with Mr Azar's excellent prospects of rehabilitation, I should, in effect, disregard those other sentences and give him credit for the whole time he has spent in custody since his arrest for the current offence. 5. In all the circumstances, I propose to slightly reduce the notional custodial time spent in relation to those other offences, and order that his sentence for the present matter, commence on 19 December 2013. 6. Since this offence, Mr Azar has been assessed by a number of different psychiatrists. Dr Eagle noted their opinions in her report. The generally held view is that Mr Azar was suffering from a schizophrenic illness at the time of the offence and on a continuing basis. Accordingly, a question was raised as to his fitness to stand trial for this offence. On 8 October 2015, Wilson J of this Court determined, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 ("the Mental Health Act") that the accused was unfit to be tried. As required by that Act, the matter was then referred to the Mental Health Tribunal ("the Tribunal"). At some stage Mr Azar started to receive treatment for his condition within the prison system, as a result of which there was a significant improvement in his mental state. On 24 March 2016 the matter was again reviewed by the Tribunal which determined that Mr Azar had become fit to be tried. Pursuant to s 47 of the Mental Health Act, the Tribunal notified the Court and the Director of Public Prosecutions, and a fitness hearing then took place before myself on 18 April 2016. At that time, all the evidence indicated that Mr Azar was fit to be tried, and after a very short hearing I made an order to that effect. 7. It was the diagnosis that Mr Azar was suffering from schizophrenia at the time of committing this offence which led the Crown to reduce the charge against him from murder to manslaughter, upon the basis that he was suffering from a substantial impairment under s 23A of the Crimes Act. It seems that the symptoms of this illness were exacerbated by his regular substance abuse. Accordingly, the combination of the fact that he has since received appropriate treatment for his condition and that he has ceased taking illicit drugs has resulted in a significant improvement in his condition. 8. At this point I turn to discuss the aggravating and mitigating factors to be taken into account on sentencing pursuant to s 21A of the Act, as relating to Mr Azar personally, as opposed to the offence. The sole aggravating factor under s 21A(2) is that Mr Azar had a record of previous convictions. I have already referred to these convictions. They directly affect the commencement date of his sentence. As to mitigating factors under s 21A(3), it is accepted that if Mr Azar continues his psychiatric treatment and abstains from using illicit substances, he has good prospects of rehabilitation and is thus unlikely to reoffend, pursuant to pars (g) and (h). In addition, the offender has expressed deep remorse for his actions in a letter to the Court, and has pleaded guilty to the offence of manslaughter, these being relevant matters pursuant to pars (i) and (k). In his letter to the Court, Mr Azar acknowledged that he would need to continue to take medication and accept psychiatric treatment for the foreseeable future. His plea of guilty is a highly significant matter, primarily for its utilitarian value and also as an acknowledgment of Mr Azar's remorse for this offence. The offer to plead guilty was made relatively early in the court processes. I propose to apply a discount of approximately 15% to the sentence I would otherwise have imposed on account of his plea of guilty. 9. A further significant factor is that Mr Azar was only 18 at the time of this offence. As already stated in relation to Mr Kaddour, the offender's youth is a highly relevant matter, as rehabilitation assumes much more significance in the sentencing process, at the expense of general deterrence and public denunciation. In Mr Azar's case, as already mentioned, I accept that, so long as he maintains his medication and abstains from using illicit drugs, he has good prospects of rehabilitation. He has the support of close family members, which is clear from the affidavits of his father, Joseph Azar, and his sister, Amagene Azar, which were tendered on sentence. Sentences for manslaughter 1. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period. As has often been said, the offence of manslaughter covers a wider spectrum of criminal responsibility than any other offence in the criminal calendar. But the one constant, which can never be forgotten, is that it involved the unlawful taking of a human life. Victim impact statements 1. All human lives are valuable. In the present case, the Crown tendered an extremely moving victim impact statement written by the deceased's twin brother, who was devastated by his death. On behalf of the Court, I express deep sympathy for his loss. I take the statement into account in the manner provided by the legislation. Special circumstances 1. It has been submitted on behalf of Mr Azar, that I should find that special circumstances exist which justify the setting of a non-parole period in his case outside the statutory ratio imposed by s 44(2) of the Act. I have no difficulty at all in making this finding. It is clear that Mr Azar will benefit from continued supervision and monitoring of his mental condition for a considerable time after his release. 2. No such circumstances exist in my opinion, in relation to Mr Kaddour. Indeed, his sentence will be such that he will, in any event, be serving a relatively lengthy non-parole period. 3. I come now to specify those sentences. Sentences 1. 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. 2. 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. ********** Amendments 17 May 2017 - Hannah Legal in lieu of Legal Aid DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2017