(2010) 79 NSWLR 1
Jonson v R [2016] NSWCCA 286
Lowe v The Queen [1984] HCA 46
(1984) 154 CLR 606 at 617
Madden v R [2011] NSWCCA 254
Markarian v R [2005] HCA 25
(2005) 228 CLR 357
Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
(2010) 79 NSWLR 1
Jonson v R [2016] NSWCCA 286
Lowe v The Queen [1984] HCA 46(1984) 154 CLR 606 at 617
Madden v R [2011] NSWCCA 254
Markarian v R [2005] HCA 25(2005) 228 CLR 357
Mill v The Queen [1988] HCA 70(1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39
Judgment (16 paragraphs)
[1]
REMARKS ON SENTENCE
On 30 March 2015, the offender, Haydar Haydar, murdered his wife, Salwa Haydar, and wounded his daughter, Ola Haydar, at his wife's townhouse at Bexley.
The offender murdered his wife by stabbing her on a large number of occasions during the course of a frenzied, sustained and brutal attack. When his daughter, Ola, intervened to try and stop the attack, he stabbed and wounded her.
The offender handed himself into the police on the evening of 30 March 2015, and has been in custody ever since.
When first arraigned in the Supreme Court, and again on 22 February 2017, the offender entered a plea of not guilty of murder but guilty of manslaughter on the basis of substantial impairment by abnormality of mind. He entered a plea of not guilty to wounding with intent to cause grievous bodily harm.
On 31 March 2017, after a trial by judge alone, I found the offender guilty of murder, and of wounding with intent to cause grievous bodily harm.
It is now time for the offender to be sentenced for his crimes.
The maximum penalty for the offence of murder is life imprisonment. A standard non-parole period of 20 years applies.
The maximum penalty for the offence of wounding with intent to cause grievous bodily harm is 25 years imprisonment. A standard non-parole period of 7 years applies.
The maximum term of imprisonment and the standard non-parole period are guideposts to which a court must have regard in imposing a sentence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. The standard non-parole period is not the starting point for an offence falling in the mid-range of objective seriousness: Madden v R [2011] NSWCCA 254 at [35].
[2]
The Statutory Regime
The Parliament of New South Wales has fixed in s 3A of the Crimes (Sentencing Procedure) Act 1999, the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others and the offender from committing similar offences; to protect the community from the offender; to promote the offender's rehabilitation; to make the offender accountable for their actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of the offender.
These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of the offender and promoting the offender's rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in isolation.
Section 21A of the Crimes (Sentencing Procedure) Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require the Court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5).
[3]
Common Law Principles
Over time, the courts have developed legal principles to guide the exercise of the sentencing discretion by judges. These common law principles are to be found in decided cases.
In summary, the common law principles include proportionality, namely, that the sentence should be proportionate to the gravity of the offence; parity, namely that the imposition of sentences on co-offenders must not give rise to a justifiable sense of grievance on the part of one co-offender; totality, that is that the Court when considering a number of offences must impose a sentence which appropriately reflects the totality of the criminal behaviour, and that a person should not be punished twice for the same conduct.
These common law principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19].
What the sentencing task requires of a judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, and the aggravating and mitigating factors, as well as the principles of the common law. Against that legal framework, the sentencing judge has to identify, and discuss the significance of, all the relevant factual circumstances of the offending and the offender. The sentencing judge is then in a position to undertake an "instinctive synthesis", whereby the judge "makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26]. As the "instinctive synthesis" approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence.
I will bear in mind the legislation by which I am bound and the common law principles developed by the courts when proceeding on the task of sentencing the offender.
[4]
The Facts
Ordinarily, it is necessary for a sentencing Judge to find and state the facts upon which the sentence is to be imposed. That is because the finding of guilt in respect of which the sentence is to be imposed is made by a jury.
Here, after a trial by Judge alone, the facts which have been found and the reasoning supporting those findings, are comprehensively set out in R v Haydar (No.3) [2017] NSWSC 159 ("my earlier judgment"). It is unnecessary for me, therefore, to find facts separately for the purpose of sentencing with respect to how the offences occurred. I rely, and take into account, all of the facts found in my earlier judgment.
It is convenient however to provide a short summary of those facts. The summary will not be comprehensive.
The offender and the deceased were married in Lebanon in 1986 and came to Australia in 1987. There was a 13 year age difference between them. The deceased was younger than the offender. Whilst in Australia the offender and the deceased had four children.
Since at least the mid-1990s, the marital relationship of the offender and the deceased was characterised by bickering and arguments. Those arguments were not accompanied by any physical violence. For about a decade prior to her death, the deceased had been talking to members of her family and others about separating from the offender because the marital relationship was not a satisfactory one.
In about 2003, there was a heated argument between the offender and the deceased about the subject of divorce. It was clear that at that time, and thereafter, the offender opposed any marital separation and divorce.
The evidence disclosed that on only one occasion was there any actual physical violence between the offender and the deceased in the course of an argument. It was a relatively minor physical contact, which is of no relevance to the events with which my earlier judgment was concerned, nor to the imposition of sentence.
In the few years leading up to her death, the deceased confided in one of her work colleagues that there were some cultural differences between her and the offender which led to disharmony. No doubt that disharmony also related to the age difference between them.
The relationship between the offender and the deceased significantly deteriorated in and after 2012 arising out of difficulties with, and differences of parenting views about, the behaviour of Ibrahim, their son. Ibrahim was ultimately arrested in April 2013, and subsequently sent to jail for drug-related offences.
It became apparent after Ibrahim's arrest that the behaviour and mood of the offender changed. He became less sociable and spoke less. The offender and the deceased sold their family home and divided the proceeds - apparently amicably. The deceased purchased a townhouse at Bexley where she lived with her two younger daughters. Her eldest daughter had by that stage married and left home. Although he did not initially intend to live in the Bexley townhouse, the offender made arrangements, which were satisfactory to the deceased, to stay there.
In early March 2015, the offender and his brother decided to travel to Lebanon to visit his mother and his family. They left Australia on 15 March 2015. Prior to his departing for Lebanon, the deceased had told the offender to pack up his belongings so that he could move out of the Bexley townhouse upon his return from Lebanon.
The offender, prior to leaving for Lebanon, took the deceased's mobile telephone from her handbag and accessed the text messages stored on it. He recorded, by taking a photograph, those text messages. The ones which he recorded were those sent by the deceased to a work colleague. The offender formed the view, which was not an unreasonable one, although it was erroneous, that his wife was being unfaithful to him.
Whilst in Lebanon the offender did not have a pleasant experience. He found that his mother was suffering from Alzheimer's disease and she generally did not recognise him or know who he was. This caused the offender considerable upset. The offender had difficulty sleeping and eating in Lebanon and made arrangements to leave Lebanon within a few weeks of arriving.
During the course of his time in Lebanon the offender had exchanged text messages with the deceased. In those text messages, the offender was accusing the deceased of being unfaithful to him and taking the opportunity to remind her that he had remained faithful to her. He expressed a wish for marital reconciliation.
The deceased was clearly of the view at that time that the marriage was over, and she wished to live separately and apart from the offender. It is difficult to discern clearly the offender's view. In part, he recognised that the marriage was finished, yet his actions did not always suggest that he was willing to accept that. However, it was clear prior to the events in question that the offender was firmly of the view that the deceased had been unfaithful to him and that this was what was causing her to seek to end the marriage.
The offender arrived home from Lebanon on the morning of 30 March 2015. He was not expected by his family at that time.
He first encountered his daughters when he returned home, and in the course of a discussion with them, concentrated on the question of their mother's infidelity.
At about 6.30pm, the deceased and her daughter, Ola, arrived back at the Bexley townhouse. The deceased went to the kitchen to commence preparing dinner. During the course of those preparations there was a verbal exchange between the deceased and the offender, shortly after which the offender was heard speaking in Arabic to the deceased. It was clear that an argument was taking place. The offender and the deceased began to yell at each other. The deceased was in the kitchen at the time. Ola then remembers hearing the deceased scream. She ran into the kitchen and saw the deceased backed into a corner in the kitchen, and she saw the offender stabbing the deceased in the back. She attempted to put herself between the offender and the deceased, and to push the offender away from the deceased. In the course of that interference, Ola was wounded.
The attack by the offender on the deceased continued, not only in the kitchen but out into the adjoining dining and living areas. Ola continued to ask the offender to stop. He did not do so. In the course of the attack the deceased was heard to protest her innocence to the offender, but this did not deter his attack. The offender only ceased his attack when he observed his daughter making a phone call to 000 and seeking assistance from them. The attack was a sustained and brutal one.
The offender left in his car and drove to his brother's house. He asked to be driven to a hospital. As his brother was driving away from his house, the offender told his brother to take him to the police station. He told his brother that he had had a fight with his wife. The offender attended at the Kogarah Police Station and informed the constable on duty that he had just had a fight with his wife and that he had stabbed her.
There was no issue that the cause of death was multiple stab wounds. The post mortem examination revealed at least 30 separate wounds, principally on the torso of the deceased and a number of individual wounds to her left hand and right palm. I am satisfied that those wounds were inflicted on the deceased at a time when she had her hands raised in an attempt to defend herself from the attack.
At the time he attacked the deceased, the offender intended to kill her.
In my earlier judgment I considered the question of whether the offender was suffering from an abnormality of mind arising from an underlying condition. I was satisfied that the offender was suffering from a mental illness diagnosable as a depressive disorder which had been present for some years, although fluctuating in intensity. His depressive disorder increased in intensity during the weeks prior to his attack on the deceased, but it was not severe at the time he returned to Sydney from Lebanon. It fell within the mild to moderate range. The capacity of the offender to control himself was "substantially impaired" by that abnormality of mind, as that expression is used in s 23A of the Crimes Act. That means that it was not a trivial or minimal impairment, but I was satisfied that the impairment was not of such an extent as would warrant a finding of manslaughter and not murder.
I concluded that the offender's loss of control was triggered by anger derived from jealousy of the deceased and her perceived new relationship, and the deceased's final rejection of the offender when she told him to leave the Bexley townhouse.
The attack was an offence of violence taking place in the home. It was of great ferocity and persistence. It was the offender's intention to kill the deceased - which he succeeded in doing. The attack was persisted in notwithstanding the offender's daughter's attempts to stop it and the resistance offered by the deceased.
[5]
Mental Illness
It was clear that the offender was, on the evening of 30 March 2015, suffering from a psychiatrically diagnosable depressive disorder, which I concluded was properly described as mild to moderate. It was not of a severity which had caused him to seek any medical or psychiatric help. It did not prevent him managing his ordinary activities of that day, and it was not sufficient to reduce his moral culpability for the offence to a conviction for manslaughter.
It is proper to have regard to an offender's mental illness in any or all of three ways. First, the existence of the offender's depression was causally related to his loss of self-control and to the commission of the crime. This has the effect of reducing the offender's moral culpability for what he did. Secondly, the offender's mental illness may indicate that the offender is an unsuitable vehicle for the application of the principle of general deterrence. Finally, it may mean that a prison sentence may weigh more heavily on the offender: R v Barbieri [2016] NSWCCA 295 at [53]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1.
I accept that the offender's moral culpability for the offences is reduced by his mental illness, and that the need for attention to the principal of general deterrence is diminished. This does not mean that general deterrence is to be completely ignored. It remains as one of the purposes of the imposition of a sentence.
However, because the offender's diagnosis of depressive disorder is a condition which is capable of adequate treatment, and which has been adequately treated whilst he has been in custody, I do not think that it provides any reason to conclude that the offender's time in prison would be any more onerous than any other prisoner of his age and circumstances.
I will take the offender's mental illness into account in the ways described.
[6]
Aggravating Factors
It is an aggravating factor if an offence is committed in the home of the victim, as this was: s 21A(2)(eb) Crimes (Sentencing Procedure) Act. The offender had retained a key to the premises, although he had been asked to, and had agreed to, return it to his wife. The arrangement which permitted him to live there had been terminated. Yet the offender let himself into the townhouse and waited there for his wife to come home after work. Shortly after she did, he confronted her whilst she was cooking the evening meal - a routine and ordinary aspect of her domestic life, in her home where she was entitled to be, and to feel, safe and secure: Jonson v R [2016] NSWCCA 286. I take this matter into account as an aggravating factor.
The offence involved the use of a weapon, namely a knife. This is an aggravating factor: s 21A(2)(c). I accept that a weapon is often used in the commission of a murder, but that does not mean that it is a factor which should be ignored - it is not an element of the offence.
[7]
Mitigating Factors
There are a number of mitigating factors which the Crimes (Sentencing Procedure) Act identifies and which are to be taken into account. The first is that the offence was not part of a planned or organised criminal activity: s 21A(3)(b). This offence was not part of such an activity. This a relevant, but not weighty, mitigating factor.
It is a mitigating factor if the offender is a person of good character and, further, if he does not have any record of previous convictions: s 21A(3)(e) and s 21A(3)(f). The offender is a person of good character and has no record of any previous convictions. These factors are important matters to be weighed in his favour and I give full effect to them.
It is a mitigating factor if the offender is unlikely to reoffend: s 21A(3)(g). The evidence from the psychiatrists, in light of the particular facts and circumstances surrounding the offences, satisfies me that the offender is unlikely to reoffend. This is also a significant matter to be taken into account in considering the appropriate sentence because it diminishes the weight to be given to the need for specific deterrence.
It is also a mitigating factor if the offender has good prospects of rehabilitation: s 21A(3)(h). Whether or not a person has good prospects of rehabilitation involves an exercise of prediction of future behaviour. In making that prediction one can place significant weight on the offender's past conduct. He has never previously offended, and the offending here took place in specific circumstances which are unlikely to reoccur. Therefore, I have concluded that he is unlikely to reoffend and, having regard to the treatment which he has obtained for his depressive disorder, and to the likelihood of reasonable support from his extended family, although not including his daughters, I think that the offender has good prospects of rehabilitation.
It is a mitigating factor if the offender has shown remorse for the offence, but only if there is material from the offender which indicates that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by his actions: s 21A(3)(i).
I am satisfied that the offender has shown remorse for his actions. His offer to plead guilty to the offence of manslaughter demonstrates that he accepts that his conduct caused the death of his wife and that he is legally responsible for those actions. The letter which he has written, and which has been placed before the Court, and the letter from his son, Ibrahim, satisfies me that he has sufficiently acknowledged the injury, loss and damage caused by his actions. I will take this into account in considering the appropriate sentence to impose.
Section 22A of the Crimes (Sentencing Procedure) Act provides that a court may impose a lesser penalty than it would otherwise impose where the conduct of the offender has facilitated the administration of justice. The manner in which the trial was run, the early indication of a plea of guilty to manslaughter, thereby acknowledging all of the conduct involved in the death of the deceased, has meant that the administration of justice has been facilitated. I will take this into account in considering the appropriate penalty to impose, having regard to this assistance.
[8]
Objective Seriousness
It is necessary to make an assessment of the objective seriousness of the two offences. The objective seriousness is to be assessed without reference to matters personal to the offender. It is to be assessed wholly by reference to the nature and circumstances of the offending: Muldrock at [27].
Dealing first with the offence of murder, senior counsel for the offender submitted that the offence was an objectively grave one but that there was a limited level of premeditation and that the overall conduct of the offender meant that in assessing the objective seriousness, the Court should find that it was below the mid-range of such offences.
With respect to the offence of wounding, senior counsel submitted that having regard to the fact that the intention was not to wound his daughter, the Court ought assess the objective seriousness as falling towards to the low end of the range of objective seriousness for similar offences.
Having regard to the nature of the offence of murder, namely that it was a frenzied and violent attack on his wife in her home, in all of the circumstances which have been earlier described, including that the offender intended to kill his wife and that he was not deterred in undertaking the prolonged attack by the intervention of his daughter, I would assess the objective seriousness of the offence of murder as falling in the mid-range of seriousness.
I accept that the offence of wounding falls towards the low end of the range.
[9]
Subject Circumstances of the Offender
The offender is now 61 years old. He was born in Lebanon and completed his high school education there. He studied in Beirut for several years at university. His studies were interrupted by civil war in Lebanon and he travelled to Cyprus where he obtained a visa to come to Australia. Once in Australia he obtained some certificates at TAFE and post-graduate qualifications in interpreting at the University of Western Sydney. He worked during his adult life in Australia as a taxi driver and an interpreter. He married his wife in 1988. As indicated earlier, there was a 13 year age difference. They had four children.
The offender's marriage had deteriorated since 2012. This together with other circumstances had led to his deteriorating state of mental health and the onset of a diagnosable condition of depression. I have discussed that condition at length, and note that I am satisfied that, in all of the circumstances, the psychiatric condition of the offender did have the result of lowering his moral culpability for the offence. The offender continues to enjoy ongoing support from his extended family - although it appears that his relationship with his three daughters is non‑existent. He continues to have a relationship with his son.
[10]
Victim Impact Statements
The Court heard three victim impact statements from the daughters of the deceased. Those statements made clear that the death of the deceased has caused significant harm and distress to them. As well, the statement of Ola Haydar, who was physically injured in the attack on her mother, provided evidence of the effect of that physical injury and the consequences of it upon her.
Pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on the daughters of the deceased is an aspect of the harm done to the community as a whole.
[11]
Sentencing
In considering the appropriate sentences to be imposed on the offender, I commence with the reminder that the offence of murder involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community. Any conviction for murder warrants a substantial sentence because the purposes of punishment and general deterrence are of significant importance. In the offender's case, the purpose of punishment is significant, but because of the particular circumstances, the aspect of protection of the community and specific deterrence do not feature as elements requiring undue attention. However, the circumstances of this offence of murder are such as to require careful attention being paid to the importance of denunciation of the offender's conduct which demonstrated a lack of respect for the value of his wife's life. Ultimately, the sentence imposed must be one which reflects the gravity of the offence.
I am not satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crime (Sentencing Procedure) Act. In my view the usual period of parole will be adequate to assist the offender to reintegrate into the community on the completion of his non-parole period. There is no other sufficient reason which has not already been taken into account to find special circumstances.
[12]
Sentence
I have now discussed all of the facts relevant for sentence, including the relevant subjective circumstances of the offender, and it is necessary to make a value judgment as to the appropriate sentence in the case of each offence.
The murder was a serious offence which fell within the mid-range of objective seriousness. I determine the appropriate sentence for that offence to be one of 22 years imprisonment with a non-parole period of 16 years and 6 months.
For the offence of wounding of his daughter, I determine that the appropriate sentence is a fixed term of 4 years imprisonment.
Although the offences occurred in the course of the same attack and involved essentially the same conduct, and carried with them the same intention, it is appropriate, and senior counsel for the offender accepted, that it is necessary to recognise the harm separately caused by each offence by imposing a measure of accumulation of the sentences.
In considering the extent of accumulation, it is necessary to keep in mind the common law principle of totality to which I have earlier referred. That principle requires that the ultimate sentence must be an appropriate one that reflects the totality of the criminality of the behaviour.
I have determined that the sentence for the offence of murder should commence 18 months after the sentence imposed for the offence of wounding.
[13]
Commencement Date
The offender was taken into custody on 30 March 2015, and he has been in custody with respect to these offences since that time. The sentence for the offence of wounding should commence on that date.
[14]
Offence of Serious Personal Violence
I am required to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of murder, of which he has been convicted and for which he is about to be formally sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, the offender should continue to be detained, or else be subject to an extended supervision order impacting upon his liberty.
[15]
Sentence
Haydar Haydar, I impose the following sentences upon you:
1. For the offence of the wounding of Ola Haydar with intent to cause grievous bodily harm to Salwa Haydar, I impose a sentence of imprisonment comprising a fixed term of 4 years commencing on 30 March 2015.
2. For the offence of the murder of Salwa Haydar, I impose a sentence of imprisonment comprising a non-parole period of 16 years and 6 months with a balance of term of 5 years and 6 months to commence on 30 September 2016.
3. You will not be eligible for release before 29 March 2033.
[16]
Amendments
19 May 2017 - Amendment review
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: 19 May 2017