Solicitors:
Office of the Director of Public Prosecutions (Crown)
Pogson Cronin Solicitors (Offender)
File Number(s): 2016/332719
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remarks on sentence
HIS HONOUR: The Court delivered its reasons on sentence on Friday, 6 March 2020: R v Azzi (No 1) [2020] NSWSC 988 ("the reasons on sentence"). Those reasons will be published shortly.
At the conclusion of the reasons on sentence, his Honour imposed a sentence upon Mr Azzi as follows:
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 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.
There are other related offences that I am required to deal with which were listed on a certificate referred to the Court under s 166 of the Criminal Procedure Act 1986 (NSW), when the offender was committed to this Court for trial by Magistrate Brender at the Local Court in Albury on 14 September 2018.
At the outset of the reasons on sentence, the Court made reference to a s 166 Certificate, dated 29 January 2020.
The offender also faces sentence for three offences contained on a s 166 Certificate:
(1) possession of a prohibited drug, namely, 0.86 grams of methlyamphetamine;
(2) contravention of an Apprehended Violence Order in favour of Lisa Restall, by being at her home; and
(3) carrying a cutting weapon, namely, a box cutting implement.
That summary of those offences concerns sequences 2, 4 and 5 of charge H6324542, respectively
The third named offence (sequence 5), as described in this aspect of the judgment, does not reflect sequence 5 on the s 166 Certificate. The form of sequence 5 in the reasons on sentence reflects the fact that the Crown sought to and was granted leave to amend the s 166 Certificate because it misstated sequence 5. I will return to the issue.
Towards the end of the reasons on sentence the Court stated that it would take into account "the s 166 Certificate offences with respect to the manslaughter charge". That articulation represented a slip as the word "concurrently" was not articulated between the words "s 166 Certificate offences" and "with respect to".
However, that slip is, for present purposes, of little significance because there are two potential slips or errors arising in the reasons on sentence, which will require correction. The first is that which I have earlier mentioned, namely, the s 166 Certificate which appears in the Crown bundle on sentence is erroneous in so far as it makes reference to the related offence in sequence 5 (see the transcript of 11 February 2020 at page 4). Notwithstanding the Court's indication that the record would be adjusted to correct for that misstatement in the Certificate, the words "s 166 Certificate offences" in the reasons on sentence, may convey the unintended meaning that the judgment was referring to the misstated offence which formally remains in the Certificate (notwithstanding the proper contents of the s 166 Certificate were referred to at the outset of the reasons on sentence and now having regard to the amended s 166 Certificate).
The second concerns the expression used in the judgment which gives the appearance of Form 1 sentencing, whereas the sentencing process requires attention to be given to the Certificate under the provisions of ss 166(1), 167(1) and 168 of the Criminal Procedure Act 1986 (NSW). The result is that the offender has not been sentenced in accordance with those provisions, so far as they relate to related offences.
The Court raised these issues with the parties, after the delivery of reasons on sentence, and indicated that a hearing via AVL should occur. (That hearing occurred today). For the purposes of the proceedings, the Court raised three questions.
1. Whether, notwithstanding the approach earlier taken in the proceedings at p 4 of the transcript of 11 February 2020, the certificate should be amended and/or reissued?
2. Whether, in lieu of that approach, the judgment would be amended to simply refer to the s 166 Certificate offences as referred to at the outset of the reasons on sentence? (The question further arises, in that respect, as to whether it is appropriate to make the adjustment in that way if the Certificate is wrong).
3. Whether sentences should be imposed for the offences appearing on the s 166 Certificate in its proper form?
On 9 March 2020 at 3.02pm, Senior Counsel for the offender sent the following communication:
I have sought instructions and liaised with the Crown. The Crown and I agree that the section 166 matters are not concluded as no sentence was pronounced.
The following is proposed on behalf of Mr Azzi who has instructed us previously to acknowledge his guilt in these matters:
1. The section 166 certificate sequence 5, which was in error because it described the offence in count 2 and should have been "Carry Cutting Weapon", should be amended to provide the correct description noting that the CAN sequence 5 is also attached and correctly states the offence. We agree with the proposed additional amended section 166 certificate with CAN attached.
2. The section 166 matters should be sentenced concurrently with count 2 dating from the date of arrest on the 7th of November 2020 [sic].
3. In relation to penalty it is submitted that the order should be Convicted, Deem it inappropriate to impose any further penalty, Section 10A Crimes (Sentencing Procedure) Act. The Crown may not agree with this proposal. In the alternative there should be very short fixed terms of imprisonment imposed of less than 6 months without the imposition of NPP's and head sentences.
On 10 March 2020 at 10.23am, the Crown communicated the following:
The Crown concurs with the submissions of Mr. Wilson, but for his submission of an appropriate sentence for the section 166 offences. The Crown supports the alternative view of Mr. Wilson, of fixed terms of imprisonment, to commence and run concurrently with the sentence for Count 2.
On 10 March 2020, the Court received an amended s 166 Certificate executed by the Crown Prosecutor.
I agree with both submissions for the offender and the Crown that the sentencing proceedings have not concluded and, in particular, the related offences on the amended s 166 Certificate have not fully been dealt with by the Court. It is not necessary, therefore, to invoke the provisions of s 43(1)(b) or (2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The offender has pleaded guilty to the related charges. It is not appropriate, in my view, for no sentence to be imposed for the related offences, having regard to s 167(1)(b) of that Act. The determination of the sentences in the light of the provision of s 168. My powers in those matters are limited to those exercisable by the Local Court: R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317.
I will adjust the earlier slip in my reasons on sentence regarding the s 166 Certificate.
For the purposes of sentencing, the matter shall be determined in accordance with the amended s 166 Certificate, the evidence at the trial and evidence in the sentencing proceedings.
In my view, it is appropriate to convict the offender of the related offences and impose sentences which shall concurrently operate from the date of arrest on 7 November 2016. I broadly agree with the alternative sentence range proposed by Senior Counsel for the offender, including that the sentences imposed should be for a fixed period without the imposition of a non-parole period. Pursuant to s 45(1) of the Crimes (Sentencing Procedure) Act, I have determined that a non-parole period should not be imposed for the related offences because those offences will be served concurrently and because they will be served concurrently with Count 2.
I will adjust the reasons on sentence to reflect this judgment both with respect to the narrative of the judgment, so far as it concerns the s 166 Certificate, and the additional sentences which I shall impose, together with a notation specifying that the published version of the judgment reflect these further reasons on sentence.
Adam Jay Azzi, I convict you of the offence of possess prohibited drug, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). You are sentenced to a fixed term of 3 months' imprisonment, commencing 7 November 2016 and ending 6 February 2017.
Adam Jay Azzi, I convict you of the offence of contravene prohibition/restriction in AVO (Domestic) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). You are sentenced to a fixed term of 3 months' imprisonment, commencing 7 November 2016 and ending 6 February 2017.
Adam Jay Azzi, I convict you of the offence of carry cutting weapon upon apprehension, contrary to s 547D of the Crimes Act 1900 (NSW). You are sentenced to a fixed term of 6 months' imprisonment, commencing 7 November 2016 and 6 May 2017.
Those sentences by their making have expired.
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Decision last updated: 30 July 2020