Khan v R

Case [2022] NSWCCA 47 4 March 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Khan v R [2022] NSWCCA 47
Hearing dates: 3 December 2021
Date of orders: 4 March 2022
Decision date: 04 March 2022
Before: Beech-Jones CJ at CL at [1];
Rothman J [18];
Wilson J [133]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – appeal – sentence – terrorism offence – attempt to murder by knife attack – victim survived – no challenge to objective seriousness assessment – use of non-causative psychiatric condition in sentencing – manifest excess – sentence stern but not manifestly excessive for objective seriousness – no error of principle or unidentified error

Legislation Cited:
Crimes Act 1900 (NSW)
The Criminal Code Act 1995 (Cth), s 7.3(1)(b)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chester v Waverley Corporation (1939) 62 CLR 1; [1939] HCA 25
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jaensch v Coffey (1984) 155 CLR 549; [1984] HCA 52
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Paterson v R [2021] NSWCCA 273
R v Barot [2007] EWCA Crim 1119; [2007] Crim LR 741
R v Engert (1995) 84 A Crim R 67
R v Khan (No 11) [2019] NSWSC 594
R v Pender [2019] NSWSC1814
R v Sharrouf [2009] NSWSC 1002
R v Sulayman Khalid; R v JibrylAlmaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Tepania v R [2018] NSWCCA 247
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22

Category: Principal judgment
Parties: Ihsas Khan (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Rigg SC/S Talbert (Applicant)
T McDonald SC/K Curry (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/272232
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Crime

Citation:

R v Khan [2019] NSWSC 594

Date of Decision:

5 June 2019

Before:

Bellew J

File Number(s):

2016/272232

Judgment

BEECH-JONES CJ at CL: I am grateful to Rothman J for setting out the background to the application. I agree with his Honour that both grounds of the application and the application itself must be dismissed.
Ground 1 contends that his Honour erred in failing to:

“(i) Take into account the extent and severity of the applicant’s mental health condition in the years preceding and up to the time of the commission of the offence; and
(II) Determine whether and to what extent that background reduced the applicant’s moral culpability for his offending behaviour, or otherwise ameliorated the need for the denunciatory, punitive and retributive purposes of imposing sentence.”

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khan v R

Details

AGLC: Khan v R [2022] NSWCCA 47
Case: [2022] NSWCCA 47
Decision Date: 04 March 2022

CaseChat Overview and Summary

The appellant, Khan, appealed against his sentence for a terrorism offence, specifically for attempting to murder a person by a knife attack, in which the victim survived. The appeal was heard in the High Court of Australia. The appeal centred on the severity of the sentence imposed, specifically whether it was manifestly excessive in relation to the objective seriousness of the crime. The appellant did not challenge the assessment of the objective seriousness but argued that the sentencing judge had erred by taking into account a non-causative psychiatric condition. The court considered whether the sentence was appropriate given the objective seriousness of the crime and whether any error in sentencing was an error of principle or unidentified error.

The High Court considered whether the sentencing judge erred by considering the appellant's psychiatric condition, which was not causative of the offending behaviour, and whether this constituted an error of principle. The court noted that the sentence was stern but not manifestly excessive given the objective seriousness of the crime. The court held that while the psychiatric condition was a relevant factor in mitigation, its inclusion did not lead to a manifestly excessive sentence. The court further held that there was no unidentified error in the sentencing process, and the sentence was appropriate in all the circumstances.

The High Court dismissed the appeal, holding that the sentence was not manifestly excessive and that any error in considering the psychiatric condition did not amount to an error of principle. The court confirmed that the sentence was stern but appropriate for the objective seriousness of the crime, and no substantial injustice had occurred. The decision reinforces the principle that a sentence may be considered appropriate even if it includes consideration of mitigating factors that are not directly causative of the offending behaviour.

Orders