R v Azzi [2020] NSWSC 988 | Case summary

Victorian Offences

The offender was convicted of, inter alia, intentionally causing injury, assaulting police and making a threat to kill. He was sentenced by Wodonga Magistrates Court on 22 March 2005 to 4 months' imprisonment, 1 month imprisonment and 3 months' imprisonment for each of the respective charges with specified periods to be served concurrently. The total term imposed was 10 months' imprisonment.
I do not consider the offender's prior record aggravates the offence for the purposes of s 21A(2)(d).
I also do not consider the circumstances of this matter including the offender's record gives rise to considerations such as those found in Veen.
However, I accept the submission by the offender that his prior record disentitles him to leniency and the submissions of the Crown, with appropriate concurrence of the offender, that the prior record has implications for specific deterrence.
I accept the submission of the offender that no aggravation arises from consideration of the provisions of s 21A(2)(g). The injuries sustained by the deceased were consistent with the offence of the kind committed. Whilst the victim impact statements demonstrate substantial harm to the family of the deceased, they may not properly be used as evidence to aggravate the offence: R v JK [2018] NSWSC 250 at [19] (per Hamill J).
On 6 November 2016, the offender was on bail for the offence of driving a vehicle whilst an illicit drug was present in his blood, which offence was committed on 24 October 2016. He was sentenced by Albury Local Court on 24 January 2017 to a $500 fine and 3 months' disqualification. The offender submitted that the breach of bond is considered to be more aggravating when the conduct is similar to that for which the offender is being sentenced: Frigiani v R [2007] NSWCCA 81 at [24] (per Howie J). I accept the degree of aggravation will be less here where the conduct for which conditional liberty is imposed is different from the offending conduct. Nonetheless, this is an aggravating factor.
Notwithstanding the offender, as earlier mentioned, made a conscious decision after the initial conversation to arm himself with a knife and table leg and then engage in the conduct I have earlier described as containing some planning at the initial stage (with respect to Count 2) and momentarily in relation to the events on the roadway, I do not consider the offence was part of a planned or organised criminal activity.
For reasons given earlier, I do not accept the offender's submissions as to provocation and there is no allowance in mitigation for that factor.
The offender has a criminal record. His record is a significant one dating back over many years. It cannot be said that he is a person of good character because of these matters. Senior Counsel for the offender properly accepted that it not unlikely that the offender will re-offend in the future. He has been unemployed for 18 years, has not been released to parole and relapsed into drug use following rehabilitation, at the end of his last gaol sentence.
The offender's background, as disclosed to Ms Anita Duffy, psychologist, was a supportive one where he was the youngest of two older sisters and a brother all of whom have been able to succeed in life. His parents were both hard working people who in the end ran their own separate businesses. He grew up with discipline and support in a house where his parents had a good relationship. His father died of cancer 5-6 years ago.
His mother and siblings reside in the Albury/Wodonga area. It is of importance to note that he has no juvenile offences on his record.
He had problems in reading and writing when he was in Primary School. He went to Wodonga High School for years 7 to 9 and then did a year at a technical college where he could do practical subjects.
He was an apprenticed plumber and attended TAFE. He completed enough of the requirements to work as a subcontractor.
The offender was a talented player of AFL football and secured a contract to play in Brisbane in 1994 when he was 20. He had a knee injury in training and was unable to play. He transferred to the Gold Coast but only played one game before having to leave the game because of this injury.
He lived in the Gold Coast for the next 4 years where he worked part-time as a plumber.
As mentioned, he has been unemployed for 18 months. He told Ms Duffy that he hopes to return to plumbing or work as a tattooist.
When living at the Gold Coast was involved in a relationship with a young woman, which ended because of his growing dependence on heroin.
As reported by Ms Duffy, he has a supportive family with whom he maintains contact. His aim is to interact with them when he is drug free.
Upon his return to Albury, in 1999 he formed a relationship with Ms Restall, a witness in the trial, who was then involved in drugs. Their daughter Daveida was born in 2001. She was later removed by Department of Child Services ("DOCS") at aged 2 as a result of the drug use of both parents and placed with Ms Restall's parents. This relationship existed for many years but was well over at the time of the offence although the offender was staying temporarily at Ms Restall's residence at the time of the offences.
The hand written letter from the offender to his daughter referred to this situation and his wishes to have a good relationship with his daughter was Ex26 in the trial.
The offender told Ms Duffy that his daughter inspires his desire to remain drug free and make up for lost time with her. He is proud of her achievements in the recent HSC and relieved that she is still supportive of him.
Senior Counsel for the offender submitted that it was vitally important in understanding how it is the offences were committed to consider the background of the offender.
Senior Counsel relied upon a line of authority in support of the contention ranging, in the case of submissions on moral culpability, from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) to Kentwell v R (No 2) [2015] NSWCCA 96 at [83]-[84] (per Rothman J, with whom Bathurst CJ and McCallum J agreed) and R v Booth [2014] NSWCCA 156 at [20]-[27] (per Hamill J, with whom Hoeben CJ at CL and Beech-Jones J agreed).
It was conceded that the offender did not have a deprived background, in the sense referred to in those cases, and that drug dependence cannot be a mitigating factor alone.
However, in reliance upon the report of Ms Duffy, the offender submitted that drug dependence when combined with a history of trauma from violence related events might reduce the offender's moral culpability to some extent as explained in the psychological assessment.
In the report given to Ms Duffy, the offender reported being introduced to alcohol when going to AFL football matches. He later developed a dependence on strong morphine based pain killers and this subsequently led to a heroin habit (he had previously taken cannabis). He reported that he began to use "ice" and suffered psychosis which resulted in hospitalisation in a psychiatric unit at a Melbourne hospital for about 12 months. Ms Restall had a heroin dependence and after their involvement they attended Odyssey House in Melbourne between 2000 and 2001.
Soon after their daughter was born he relapsed into "ice" use after he and Ms Restall separated when his child was 2 years old. He attributed the increased use of "ice" to depression following the loss of his daughter and his limited access to her. He was prescribed antipsychotic medication during his incarceration between 2012 and 2016 but because his release was unsupervised (there being no parole) he returned to taking "ice".
The offender told Ms Duffy that following his release he was using half a gram of "ice" daily, was awake for up to 10 days and reported some psychotic episodes. On his arrest he was in possession of 0.86g of methylamphetamine. He was arrested on 24 October 2016 for driving, as earlier mentioned, whilst driving with an illicit drug, methylamphetamine, present in his blood.
The following is a summary of the elements of Ms Duffy's report derived, in part, from submissions by Senior Counsel for the offender: 1. The offender's presentation and reported history and the result of his objective personality assessment reflect an individual with long standing drug dependence. His relapse upon his release into "ice" use at the time of the offence is consistent with criteria for Stimulant Use Disorder (DSM-5). 2. Ms Duffy observed that the excessive use of "ice" can lead to paranoid ideation and threats of acting out behaviour may occur. She points out that "ice" use and possible sleep deprivation feeding Ms Restall's puppies in the days leading up to the offending "may have further exacerbated Mr Azzi's paranoia and perceptions of danger." 3. Following Ms Duffy's assessment based upon the results of the Millon Clinical Multiaxial Inventory, she states: Mr Azzi's profile reflects an emotionally isolated individual who is self sufficient and may have little insight or self awareness in the implications of interpersonal relationships. He conceptualises the world as functioning according to the "laws of the jungle", where showing signs of fear is seen as a weakness, and where he may see others as exploitative and intimidating. He may be guarded, mistrustful and reserved and when challenged can become impulsively angry and aggressive. 1. As to the prospect of the offender suffering post-traumatic stress disorder ("PTSD"), Ms Duffy stated that the Post Traumatic Stress scale "lay below significance, although was raised". 2. At pages 8 and 9 of the report Ms Duffy further discusses PTSD under a heading addressed to the same. She describes the offender's repeated traumatic experiences as follows: When asked to nominate a traumatic experience where he was in fear of his life (Criterion A), Mr Azzi referred to the home invasion incident where he was imprisoned and a gun held to his head, which had occurred in the early 2000s. His responses on the checklist indicated that he continued to experience flashbacks of the stressful experience, felt very upset when reminded such as heart pounding, breathlessness; avoided memories or reminders of the experience; had strong negative feelings such as fear, horror, guilt or shame, felt distant or cut off from people; and was easily startled and super alert, watchful and on guard. These responses constitute the Intrusive, Avoidant, Negative Emotions and Hyperarousal symptoms of PTSD. 1. She later discusses traumatic experiences by the offender when in the inmate population. 2. At page 9 of her report under the heading concerning PTSD Ms Duffy found his total score on the frequency and intensity of symptoms lay above the threshold of positive diagnosis of PTSD but additional investigation was needed "before making a definite diagnosis". Further, at page 9 of her report in Ms Duffy's conclusions she found: Assessment of current symptoms of PTSD indicate a strong likelihood of positive diagnosis, particularly the intrusive, avoidant and hyperarousal clusters. There appears to be a cumulative effect of traumatic experiences in inmate populations as outlined in research conducted by Briere et al. They found that trauma exposure was very common among prisoners (48% of a prison sample as opposed to 4% of a general population sample) and even when controlling for effects of childhood sexual assault, a prison sample with only one type of trauma exposure had a 17% likelihood of current PTSD whereas those with cumulative trauma experiences of 6 or more traumas had a 64% chance of current PTSD. 1. Ms Duffy concludes that his reported history of trauma, which is consistent with research findings on the cumulative effect of traumatic experiences on inmate populations, "increased his hypervigilance to potential threat, such that he was fearful and avoided situations where he could be caught off guard". 2. In addition Ms Duffy notes a prison study which found a relationship between PTSD and emotional dysregulation in male "ice" users with a history of PTSD symptoms. This combination bolstered the risk of aggression via forms of emotional dysregulation. Ms Duffy concludes: His difficulty in regulating emotions, especially in a state of high arousal, in addition to the effects of "ice" consumed on the day, would have impaired his capacity for judgement and problem solving when he confronted the men. His behaviour reflected a "flight or fight" response, in the face of perceived threat. The sensitivity to attack was heightened by his previous traumatic experience of a home invasion.
The Crown's response to these contentions, by the offender and Ms Duffy's report, was that the Court would be guarded about and treat with caution the content of any statements made by the offender to a third party that are not supported by sworn or independent evidence. These contentions have greater force, it was submitted, due to the offender's propensity to lie.
Reliance was placed upon Imbornone v R [2017] NSWCCA 144 at [57] (per Wilson J, with Hoeben CJ at CL, RA Hulme J agreeing), for the following propositions: 1. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58]-[59] (per Smart AJ). 2. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu (2002) 134 A Crim R 174 at 185; [2002] NSWCCA 381 at [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25]. 3. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. 4. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19].
I accept those statements of principle.
To these observations reference may be made to the judgment of White JA in Perkins v R [2018] NSWCCA 62 ("Perkins") (with whom Fullerton J relevantly agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133. The following principles may be distilled from those authorities relevant to this judgment: 1. The focus should be upon whether the background of the offender lessens moral culpability. It does not follow that a background of social deprivation will always be a factor in mitigation of sentence (Perkins at [73]). In particular, it may do so if there was a causal link between the background of social deprivation and the offences. 2. If the offender seeks to rely upon his background of deprivation in mitigation of sentence, he needs to point to material tending to establish the background (see Perkins at [77] and Bugmy at [41]. 3. The weight to be afforded to the offence of social deprivation in an offender's background is in each case a matter for individual assessment (Bugmy at [56] per Gageler J).
The offender relied upon a series of factors, in the absence of direct evidence, to demonstrate an evidentiary basis for a submission that the Court should conclude the offender had a reduced moral culpability due to compromised mental processes at the time of the offence as follows: 1. The offender's use of drugs on the day of the offence can be inferred from the history of offending and continued drug use at the time. The circumstances of the arrest were such that the next morning he was found to possess a small amount of methylamphetamine. In January 2017, he was convicted of driving under the influence of an illicit drug. He was convicted of possessing a prohibited drug while serving a sentence in 2015 for an offence in 2014. He was also arrested for possess prohibited drug in September 2016 following his release from custody. That matter, together with a failure to appear, was concluded by the Central Local Court on 22 May 2017. 2. The material in the background report from Ms Duffy, her references to research, the findings her testing supported and the conclusions she made, are consistent with the behaviour of the offender in response to the presence of Mr Vercoe and the deceased. The response could be seen as emotionally dysregulated, hyper vigilant and paranoid, impaired in judgment and impulsively aggressive. It fits well with the paradigm proposed by Ms Duffy for previously imprisoned relapsing users of "ice" with a history and symptomology of PTSD. 3. The very facts of the case revealed erratic, irrational, hypervigilant behaviour as well as paranoid perception. This is particularly so when he emerged from the premises after closing the door and then re-emerging.
The Crown submitted that there was insufficient evidence of the offender's mental health in Ms Duffy's report to reach a conclusion concerning the hypervigilance. Emphasis was placed upon the offender's misreporting as to the conduct of Mr Vercoe and the deceased, namely, that his offence was "instigated" by two men arriving at the premises, his perception that they behaved in a threatening and aggressive manner and the belief he was going "to die". He reported he adopted self-defensive behaviours and he had become "accustomed to in the context of the prison environment where violence and intimidation were commonplace". He armed himself with a knife and a piece of wood to "protect himself".
The highest a diagnosis of PTSD reached, submitted the Crown, as there was a likelihood of such a diagnosis.
I accept the submission of Senior Counsel for the offender that he continued using methylamphetamine or the like at or about the time of the offences.
However, there is little evidence as to the extent of his exposure to the drug on the evening in question or the extent to which, as Ms Duffy put it, he had relapsed into "ice" use. There is no evidence from the offender on this issue.
I also accept the submission of the Crown that the reports by the offender given to Ms Duffy as the foundation of her findings as to PTSD need to be treated with real circumspection in the absence of evidence from him. That is particularly so when the evidence in the proceedings demonstrated that he was willing to invent accounts in order to place himself in a better light or improve his position. The story to his daughter, pursued by Senior Counsel under instructions during cross-examination, misrepresented Mr Vercoe's and the deceased's conduct and was on the evidence a fabrication.
It is important to note that Ms Duffy did not diagnose the offender with PTSD although postulated that was a likely diagnosis after further investigation. Further, the behaviour of the offender, as submitted by Senior Counsel for the offender, did have some of the behavioural features referred to by Ms Duffy exacerbated by "ice" use.
I will make an allowance in sentencing for this factor but the weight attributed to it is modest.
I accept the offender's submission that the prospects of rehabilitation of the offender are at best guarded.
The fact that he was not released to parole, despite completing programs, during his previous sentence speaks against efforts at rehabilitation during that previous long period in custody. His custodial history is replete with offences.
A positive aspect of his situation is that he has strong family support. He has most importantly the support of his daughter Daveida with whom he has tried to maintain and develop a relationship, who is the most important person to him and of whom he is very proud. She provides an incentive towards rehabilitation.
He is prepared to participate in rehabilitation programs in custody following sentence and to receive supervision and treatment by the Community Corrections Service to help him prevent relapse.
He has a trade and hopes to gain employment in it or work in the tattoo industry. He has not worked for a long time and will need support to seek and maintain employment.
The offender gave no evidence himself of remorse. He placed reliance upon statements made to Ms Duffy. The first of which appears at page 7 of her report. Ms Duffy recorded, the offender expressed strong regret over the death of the man and the impact on his family, and distress over being at Ms Restall's home at the time the men arrived. That passage appeared in a section of the report dealing with the "offences" in which he gave a false account of the circumstances of the offending such as "two large men coming at [him], yelling and screaming" and he was "terrified". He was moving backwards and trying to "talk them down".
The second account appears on page 11 of Ms Duffy's report where the offender is reported as expressing regret of the death of "the man" and a desire to change his life.
I do not consider the offender has demonstrated contrition and remorse.
It was accepted by the offender that general deterrence and specific deterrence would not carry less weight in this case because of "the offender's psychological problems". His offending occurred entirely as an adult.
Given the violent nature of this offence and its circumstances, I consider that general deterrence must play a role in sentencing.
Specific deterrence shall feature in the sentence imposed as earlier discussed in this judgment.
In all the circumstances, the only appropriate penalty of each count is fulltime incarceration. In sentencing of the offender, I have had regard to the statutory guidelines of the maximum sentence (Muldrock at [27]) together with the facts bearing upon the objective seriousness of the offence and subjective features.
Senior Counsel made reference to sentencing statistics. I accept his submission that "when I boiled them down no particular case was like this in the statistics having the same age range, prior record and so forth". I also note Senior Counsel's submission as follows: This summary of the statistics underscores the blunt nature of the statistics and the limited value they have here in the way described by Garling J [in Brown v R [2014] NSWCCA 215 at [81] per Garling J].
Each sentence must be determined upon its own facts and circumstances as no two cases are the same, although I note the implications of the principle of consistency.
The offender also relied upon five authorities which were said to be comparative: R v MacDonald (Unreported, New South Wales Court of Criminal Appeal, 12 December 1995) ("MacDonald"); R v Appleby (Unreported, Supreme Court of New South Wales, 18 July 1997) ("Appleby"); R v Waterman [2002] NSWSC 1236 ("Waterman"); R v York [2007] NSWSC 1470 ("York"); and R v McDonald [2019] NSWSC 858. There are limitations upon the use of comparative cases in this fashion. However, there are some clear distinguishing factors of the objective circumstances of those matters and the present offences.
In MacDonald, Mr MacDonald seized a school child who had stolen some of his property at the beach to take him to the police. When the teacher responsible for the child attempted to loosen his grasp, Mr MacDonald fatally stabbed him with a fishing knife. He was sentenced to 5 years' imprisonment with a minimum term of 3 years' and an additional term of 2 years. This sentence reflected the "strong subjective circumstances in the respondent's favour", namely that he had low intellectual capacity and "emotional inadequacies that made it difficult to respond to stressful situations". These circumstances do not apply to the offender in the present case.
The Court also noted "the fact that [Mr MacDonald] was reacting impulsively to a highly stressful situation, which was not of his own making", which does not apply in this case.
In this case, the offender took the knife and table leg onto the roadway, moved towards Mr Vercoe when he approached the road and lunged at him with the knife. Upon the deceased coming to Mr Vercoe's aid, the offender moved in the direction of his advance with the knife held towards the deceased.
On the facts and circumstances of this matter, it may not be concluded that the "situation" was not of his own making. The offender was clearly the instigator of the facts and circumstances underlying Count 2. Mr Vercoe's actions were defensive. While the offender took some steps backwards and moved around the tree, he lunged at Mr Vercoe with a knife. Whilst the offender ran around the tree to the road, the direction of his movement was generally towards the deceased rather than towards the house. In moving to the road he continued to hold the knife and table leg. Whilst at the roadway, Mr Vercoe did wave the table or seat top at the offender, but the offender moved towards him as he was entering the road and, upon his tripping, the offender lunged at him.
In Appleby, Mr Appleby was sentenced to 6 years' imprisonment with a minimum term of 3 years for stabbing his brother. Mr Appleby was awakened from a deep sleep (induced in part by having taken four Serepax tablets) by the noise of an altercation between his girlfriend and family, which progressed into an assault upon his girlfriend by his brother. Mr Appleby picked up the kitchen knife he had been using in the bedroom to peel fruit and lunged at his brother intending to hurt him so he would not come back. The Court noted that: The essence of the criminality in the prisoner's conduct being the use of the knife as a weapon to hurt the deceased and discourage him from returning to the fray. I accept the prisoner was responding to a highly stressful situation which was not of his own making.
The same observations may be made with respect to the offender who engaged in a situation of his own making in this case. The deceased's actions were designed to effect a rescue as the offender moved toward him during his advance. In addition, none of the subjective factors apply to the offender in the present case. Mr Appleby was 23 years old and had no criminal history involving violent offences. He was remorseful and contrite - he pleaded guilty and became depressed and suicidal which required hospitalisation in prison. He had taken positive steps to rehabilitate himself, including undertaking drug counselling and rehabilitation, and participation in a methadone program.
The sentence imposed in Waterman was 6 years' imprisonment with a minimum term of 3 years and 6 months. Mr Waterman, who was intoxicated, took a knife, which his mother left near the front door. He carried it to the scene after the co-offender told him that the deceased assaulted him. The co-offender identified the deceased. There was a conflict as to what occurred at the moment of the stabbing and manslaughter in the alternative was left to the jury on two bases: either that the offender deliberately stabbed the deceased but without the intent requisite for murder, or that he menaced the deceased with the knife and the deceased lunged towards him, impaling himself upon it. For the purpose of sentence Hidden J accepted the latter basis relying on the evidence of a reliable witness. For reasons given above, I do not accept that the deceased in this matter impaled himself on the knife if by that expression it was intended to indicate that the penetration of the deceased's body arose solely from him running at the knife and the force of that motion being solely responsible for the penetration of his body.
In York, Adams J imposed a sentence of 5 years' imprisonment with a non-parole period of 3 years in circumstances where the deceased moved towards the offender and the offender then moved his arm holding a knife (which had been used as an eating utensil) either at the same time or in response to the deceased's action. Adams J found that: [9] … I cannot be satisfied beyond reasonable doubt that the blow was intended aggressively as distinct from defensively. … [12] In considering the objective seriousness of this offence it is important to note that the offender did not pick up the knife for any aggressive purpose. It happened to be in his hand because he was using it as an eating utensil. This important fact differentiates this case from all those cases where a weapon is used to injure or kill and is obtained or brandished for that very reason. Unlawful use of a knife will usually be, and rightly so, a seriously aggravating feature of any assault. Here, however, the knife was only incidentally in the hand of the offender. It is only natural that he would attempt to use his right hand to fend off Mr Boa and, although at that point in time he was aware of the knife in his hand, he had not intended to cause any injury with it.
That is distinguishable from the present matter. As the deceased moved to rescue Mr Vercoe, the offender moved towards the deceased with the knife held upwards, such that it could penetrate the deceased's body in a downward motion. As discussed above, the primary conduct of the offender was that of an aggressor.
In R v McDonald, a middle-aged severely intoxicated Mr McDonald stabbed his brother while he sat in a chair. He was sentenced to 6 years' imprisonment with a non-parole period of 3 years. Harrison J found that Mr McDonald was "clearly provoked by the deceased" and given the amount of force applied it would not have been a significant injury if the blade had missed major blood vessels. Harrison J also took into account the fact that Mr McDonald came from an "indigenous background marked by significant deprivation and disadvantage". This bears no analogy to the present matter, where there was no provocation and the offender did not suffer early socioeconomic disadvantage.
I shall take into account the s 166 Certificate offences concurrently with respect to the manslaughter charge.
As to Count 2, the offender submitted: 1. It was submitted that the total criminality of the offences and the offending is tempered by the application of the principle of totality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] (per Howie J); CPW v R (2009) 195 A Crim R 149; [2009] NSWCCA 105 at [71] (per James J). 2. A separate penalty should be imposed in this case for these offences: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]; see also Sheehan (No 2) v R [2006] NSWCCA 332 at [9], citing R H McL v The Queen (2000) 203 CLR 452 at [32], which came from Brennan J in Ryan v The Queen (1982) 149 CLR 1 at 22-23. 3. This is a discrete offence which is a part of a continuous series of events arising in a single episode of offending where the main count will involve a longer sentence and where the moral culpability and the objective seriousness of the offending in the more serious offence substantially contemplates the criminality involved in this offence. 4. However, although the offences arise out of, in many respects, a continuous course of conduct, inevitably in the circumstances there must be some partial accumulation (which is relatively small) to reflect the separate criminality in each offence: R v Gierczynski [2013] NSWSC 1870 at [81] (per Adamson J); R v Fazah [2014] NSWSC 231 at [48] (per Hidden J).
I accept those submissions. There shall be partial accumulation.
The offender submitted that special circumstances might be found in this case.
It was submitted the sentence will be a reasonably lengthy one. The offender is a recidivist with a long history of imprisonment. He is at risk of becoming institutionalised. He will need an extended period of supervision to re-adjust to and maintain community life. He needs counselling and supervision to counter against a possible relapse into the use of drugs and to cope with the impact of trauma on his psychology.
There can be no question that the offender will require close and careful supervision and treatment to readjust to community life.
In my assessment, given the length of the sentence which must necessarily be imposed upon the offender, the result of the statutory ratio will provide him with a suitable period for such supervision.
I do not, therefore, find special circumstances, save to the extent the sentence for manslaughter shall be adjusted to maintain the statutory ratio for the effective non-parole period for the overall sentence.
The offender has been in custody since his arrest on 7 November 2016. The sentence in this matter, with respect to count 2, will commence from the date of incarceration.
Mr Azzi could you please stand.
For the reasons I have given, Adam Jay Azzi, for the offence of use an offensive weapon with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act, you are convicted. Pursuant to s 44(1) of the Sentencing Act, the Court sets a non-parole period of 3 years and 9 months, commencing 7 November 2016 and expiring 6 August 2020. The balance of the term shall be 1 year 3 months from 7 August 2020 to 6 November 2021.
Adam Jay Azzi, for the manslaughter of Lloyd Frederick Kennedy, you are convicted. Pursuant to s 44(2) of the Sentencing Act, the Court sets a non-parole period of 7 years and 3 months, commencing 7 November 2017 and expiring 6 February 2025. The balance of the term shall be 2 years 9 months commencing 7 February 2025 to 6 November 2027.
The overall sentence is 11 years' imprisonment, comprising of a non-parole period of 8 years and 3 months commencing on 7 November 2016. Adam Jay Azzi, you will be eligible for release on parole on 6 February 2025 and your last sentence will expire on 6 November 2027.

R v Azzi

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