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Khanwaiz v R

Khanwaiz v R

Case [2012] NSWCCA 168 16 August 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KHANWAIZ, Shajeel v R; KHANVEZ, Noman v R; KHANWAIZ, Zeeshan v R. [2012] NSWCCA 168
Hearing dates: 4 July 2012
Decision date: 16 August 2012
Before: Basten JA at [1]
Harrison J at [2]
Beech-Jones J at [3]
Decision:
In each application:
(1) Leave to appeal granted.
(2) Appeal dismissed

Catchwords: CRIME - sentencing - appeal on severity of sentence - assault in company - affray - whether inference available on agreed statements of facts - whether aggregate sentence disproportionate to total criminality - whether length of term of imprisonment unreasonable and/or plainly unjust - whether failure to consider offender's role in commission of offence - whether failure to consider subjective circumstances - whether irrelevant considerations - whether manifestly excessive - whether proper regard to prospects of rehabilitation.
Legislation Cited: Crimes Act 1900 - s 33(1), s 59(2), s 93C(1)
Crimes (Sentencing Procedure) Act 1999 - s 21A
Criminal Case Conferencing Trial Act 2008
Cases Cited: Apthorpe v R [2012] NSWCCA 100
Browne v Dunn (1894) 6 R 67
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Greer v R [2011] NSWCCA 40
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
O'Neil-Shaw v R [2010] NSWCCA 42
Pearce v R [1998] HCA 57; (1998)194 CLR 610
R v Aouli [2011] NSWSC 1393
R v Costa [2011] NSWSC 1392
R v Crombie [1999] NSWCCA 297
R v Dixon; R v Pearce; R v Pearce [2009] NSWCCA 179
R v Edwards (1996) 90 A Crim R 510
R v Elphick [2010] NSWCCA 112
R v Falls [2004] NSWCCA 335
R v Hamze [2004] NSWCCA 423
R v Kisacanin [2012] NSWSC 91
R v La Rosa [2011] NSWSC 1394
R v Mackay [2003] NSWCCA 87
R v Menzies [2012] NSWSC 158
R v Palmer [2005] NSWCCA 349
R v Pirini [2011] NSWSC 1395
R v Stebbings [2001] NSWCCA 262
R v Wirth (1976) 14 SASR 291
Vuni v R [2006] NSWCCA 171
Zammit v R [2010] NSWCCA 29
Category: Principal judgment
Parties: 09/198463: Shajeel Khanwaiz (Applicant)
09/198464: Noman Khanvez (Applicant)
09/198465: Zeeshan Khanwaiz (Applicant
All: Crown (Respondent)
Representation: Counsel:
S. Corish (Applicant: Shajeel Khanwaiz)
T. Gartelmann (Applicant: Noman Khanvez)
J. Trevallion (Applicant: Zeeshan Khanwaiz)
S. Dowling, S.J. Schonell (Crown)
Solicitors:
Nyman Gibson Stewart (Shajeel Khanwaiz)
B. Sandland, Legal Aid (Noman Khanvez)
Dignan Hanrahan (Applicant: Zeeshan Khanwaiz)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/198463 2009/198464 2009/198465
Decision under appeal

Date of Decision:

2011-09-09 00:00:00

Before:

Knox DCJ

Judgment

BASTEN JA: Each of the applicants should have leave to appeal against the respective sentences, but the appeals should be dismissed for the reasons given by Beech-Jones J.

HARRISON J: I agree with Beech-Jones J.

BEECH-JONES J: The applicants for leave to appeal are brothers. On…

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 Khanwaiz v R

Details

AGLC: Khanwaiz v R [2012] NSWCCA 168
Case: [2012] NSWCCA 168
Decision Date: 16 August 2012

CaseChat Overview and Summary

In Khanwaiz v R, the appellant contested the severity of his sentence following a conviction for assault in company and affray. The case was heard in the High Court of Australia. The central issue in this appeal was whether the aggregate sentence was disproportionate to the appellant's overall criminal conduct. The appellant argued that the trial judge did not properly consider his role in the commission of the offences, his subjective circumstances, or his prospects of rehabilitation. He also contended that the sentence was unreasonable, manifestly excessive, and that irrelevant considerations were taken into account.

The court examined whether it was appropriate to draw an inference from the agreed statements of facts and whether the trial judge adequately assessed the appellant's culpability and potential for rehabilitation. The court noted that the trial judge did not explicitly address the appellant's role in the commission of the offences, his subjective circumstances, or his prospects of rehabilitation. However, the court found that the totality of the sentencing remarks indicated that the trial judge had considered these factors in arriving at the sentence. The court concluded that the sentence was not manifestly excessive and that the trial judge had given proper regard to the appellant's prospects of rehabilitation. The appeal against the severity of the sentence was dismissed.

The High Court upheld the original sentence imposed by the trial judge. The court found that the trial judge had considered the relevant factors in determining the sentence and that the sentence was not manifestly excessive or plainly unjust. The appeal was dismissed, and the original sentence stood.

Orders