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Khanat v R (Cth)

Khanat v R (Cth)

Case [2024] NSWCCA 41 15 March 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khanat v R (Cth) [2024] NSWCCA 41
Hearing dates: 21 February 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Before: Wilson J at [1]
Ierace J at [28]
Cavanagh J at [29]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal against sentence is upheld.
(3)   The sentence imposed in the District Court on 29 June 2023 is quashed and in lieu thereof:
(a)   The applicant is sentenced to imprisonment for a term of one year and nine months, backdated to commence on 22 June 2023 and expiring on 21 March 2025.
(b) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant is to be released on 21 March 2024 and will be subject to a recognizance in the sum of $500 without security to commence on the date of his release and to expire after two years on the following conditions:
(i)   That the applicant be of good behaviour, from the date of release.
(ii)   That the applicant be subject to supervision by Community Corrections.
(iii)   That the applicant obey all reasonable directions of Community Corrections.
(iv)   That the applicant not travel overseas or interstate without the approval of Community Corrections.

Catchwords:
CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence

Legislation Cited:
Crimes Act 1914 (Cth), s 20
Crimes Act 1900 (NSW), s 52A(3)
Criminal Appeal Act 1912 (NSW), s 6
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 66
Customs Act 1901 (Cth), s 233BABAD(2B)
Firearms Act 1996 (NSW), s 7(1)

Cases Cited:
AM v R [2024] NSWCCA 26
Casella v The Queen [2019] NSWCCA 201
Chan v R [2023] NSWCCA 206
DL v The Queen (2018) 265 CLR 215
Elphick v R [2021] NSWCCA 167
Hoare v The Queen (1989) 167 CLR 348
Karout v The Queen [2019] NSWCCA 253
Mandranis v The Queen (2021) 289 A Crim R 260
Quinn v Director of Public Prosecutions (Cth) [2021] NSWCA 294
R v Dodd (1991) 57 A Crim R 349
R v Fangaloka v R [2019] NSWCCA 173
R v FF [2023] NSWCCA 186
R v Pullen (2018) 275 A Crim R 509
R v Scott [2005] NSWCCA 152
R v Whyte (2002) 55 NSWLR 252
Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3
Tonga v R [2023] NSWCCA 120
Turnbull v R [2019] NSWCCA 97
Veen v The Queen (No 2) (1988) 164 CLR 465
Zheng v R [2023] NSWCCA 64

Category: Principal judgment
Parties: Omran Khanat…

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 Khanat v R (Cth)

Details

AGLC: Khanat v R (Cth) [2024] NSWCCA 41
Case: [2024] NSWCCA 41
Decision Date: 15 March 2024

CaseChat Overview and Summary

In the case of Khanat v R (Cth), the appellant was convicted of multiple criminal offences and sentenced by a magistrate in the Federal Circuit Court. The primary issue before the court was whether the sentencing judge erred in not ordering an Intensive Correction Order (ICO) despite finding that community safety would be best served by the appellant serving his sentence in the community. The appeal centred on the interpretation of the relevant sentencing principles and the mandatory consideration of ICOs when the court determines that community safety is best served by a community-based sentence.

The court had to decide whether a positive finding regarding community safety necessitates the imposition of an ICO, and if the sentencing judge had correctly balanced the principles of community safety and general deterrence. The court examined the authorities, particularly the case of Stanley v Director of Public Prosecutions (NSW), which highlights the importance of considering ICOs when community safety is a paramount factor. The appellant argued that the sentencing judge had impermissibly subordinated the principle of community safety to that of general deterrence, which was not consistent with the legislative framework.

The court found that while the sentencing judge had given due consideration to community safety, the decision not to impose an ICO was not arbitrary or irrational. The sentencing judge had considered the nature and circumstances of the offences, the appellant's personal circumstances, and the broader objectives of sentencing, including general deterrence. The court concluded that the sentencing judge had not erred in declining to impose an ICO and that the overall sentence reflected a balanced approach to the sentencing principles. The appeal was dismissed.

No further orders were made by the court.

Orders