Khanwaiz v R - [2012] NSWCCA 168

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 2 September 2009 they and a number of other people participated in a violent attack on Waqas Ahmad. A housemate of Waqas Ahmad, Awais Awan, was stabbed during the attack. None of the applicants bears any responsibility for the stabbing.

Zeeshan Khanwaiz ("Zeeshan") stood trial along with another co-offender, Ibrar Ahmad (a cousin of Waqas Ahmad) on an indictment containing three counts. The first count was an offence under s 33(1) of the Crimes Act 1900 of causing grievous bodily harm to Awais Awan with intent to cause him grievous bodily harm. The second count was an offence under s 59(2) of assault in company occasioning actual bodily harm to Waqas Ahmad. The third count was an offence of affray contrary to s 93C(1). It was an alternative count to the second count. Ibrar Ahmad was found guilty of both counts. Zeeshan was acquitted of the first count but convicted of the second.

Shajeel Khanwaiz ("Shajeel") and Noman Khanvez ("Noman") pleaded guilty to two offences, one under s 59(2) of assault in company occasioning actual bodily harm to Waqas Ahmad, and the other under s 93C(1) expressed as follows:

"On 2 September 2009 at Randwick in the State of New South Wales [he] used unlawful violence towards Waqas Ahmad and threatened unlawful violence to Awais Awan and that their conduct was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety."

All four offenders were sentenced by the same judge. Zeeshan was sentenced to a non-parole period of eighteen months commencing 9 September 2011 with a balance of term of nine months. For the offence under s 59(2), Shajeel and Noman were each sentenced to a non-parole period of fourteen months with a balance of term of seven months. For the offence under s 93C(1) they were each sentenced to a non-parole period of eighteen months with a balance of term of ten months. The sentence for the offence under s 93C(1) commenced three months after the commencement date for the sentence for the s 59(2) offence. The combined effect of their sentences was a non-parole period of twenty-one months commencing 8 September 2011 and expiring on 7 June 2013, with a balance of term of ten months expiring 7 April 2014.

His Honour heard submissions on sentence from all four offenders on the same day and gave a single ex tempore judgment concerning all four. I do not make any criticism of his Honour in doing so. To the contrary, such a course is not only efficient but also promotes consistency in sentencing. I mention it to provide a context to some of the grounds of appeal which allege that his Honour considered material that was only admissible against Zeeshan and Ibrar Ahmad when sentencing Noman and Shajeel.

The evidentiary basis upon which Zeeshan and Ibrar Ahmad on the one hand, and Noman and Shajeel on the other hand, were sentenced was different. With the former, his Honour was able to consider all the evidence at the trial. With the latter, his Honour received a Statement of Agreed Facts. Bearing in mind the complaints made, I will address each applicant's case in turn.

Noman Khanvez

The Statement of Agreed Facts which was before his Honour can be summarised as follows.

Waqas Ahmad and Awais Awan were Pakistani nationals residing in Australia on student visas. They lived in a unit in Randwick. When he first arrived in Australia, Waqas Ahmad had lived with his uncle, Safraz Ahmad the father of Ibrar Ahmad. Safraz Ahmad had sponsored Waqas Ahmad's travel to Australia. During the course of 2009, a bitter dispute broke out between Safraz Ahmad and Waqas Ahmad. It is not necessary to describe the intricacies of the dispute nor resolve its merits. At some point, Waqas Ahmad asserted that Safraz Ahmad owed him money and sought repayment. Waqas Ahmad alleged that Safraz Ahmad warned him not to seek payment and that if he, Waqas, persisted Safraz Ahmad would have his visa sponsorship cancelled. The dispute elevated to threats being made to Waqas Ahmad to desist in seeking money. Ibrar Ahmad sided with his father in the dispute. The three applicants were friends of Ibrar Ahmad

On the evening of 2 September 2009 Noman and Shajeel and a number of other offenders (which included their brother and Ibrar Ahmad) gathered at their home and spoke for half an hour before travelling in three cars to Randwick. Shajeel's telephone was used to call Waqas Ahmad and Awais Awan, however neither answered the call.

Later, Waqas Ahmad received a telephone call from one of the males travelling in the three cars. He went downstairs from his unit and walked through the back door. As he walked towards the laneway he saw Noman running behind two other males. Waqas Ahmad knew Noman to be a family friend of his uncle. From inside the unit Awais Awan heard shouting and looked out the window to the backyard of the units. He saw Waqas Ahmad surrounded by three other males. He ran down to the carpark area to join him.

Waqas Ahmad turned and tried to run to the back door, but was grabbed by Noman and another male. The other male had his arms around Waqas Ahmad's chest and held his arms. Noman punched Ahmad's face and body. Noman hit him four or five times before the other male released him. The other male then pushed Waqas Ahmad two or three times in the back.

Noman and the other male began to pull Waqas Ahmad towards the lane, pushing and punching him as they did so. At this time Waqas Ahmad saw approximately ten other males run into the backyard, one of whom was Shajeel. This group of males joined Noman in punching and kicking Waqas Ahmad, who fell to the ground while they continued to insult him and yell at him.

When Awais Awan arrived in the yard one of the males who was kicking and punching Waqas Ahmad, turned towards him and pointed and said: "Grab that guy". (The Statement of Agreed Facts referred to this as having been said in "Pakistani" language. It was not specified whether this was Urdu, Punjabi or some other language used in Pakistan.) Awais Awan ran towards the walkway at the front of the block in fear for his safety. One of the group of males ran after him with a number of other males, and Awais Awan was assaulted by this group. Noman and Shajeel were not part of that group. (During the trial of Zeeshan and Ibrar Ahmad evidence was adduced that during this part of the attack Awais Awan was stabbed.)

Instead Noman and Shajeel continued to assault Waqas Ahmad. Waqas Ahmad was picked up by his arms and legs and was being carried towards the laneway. At some point he began to yell for help. His attackers dropped him to the ground, kicked him and then ran from the scene.

During the attack, the lights were on in the top unit of the apartments next door. A man and woman were standing at the window. A number of neighbours heard the disturbance and one saw the victims lying on the ground being kicked by males standing around them, before they saw all the males run off.

Waqas Ahmad suffered extensive bruising, abrasions and lacerations to his face, chest and back as a result of the assault.

Sentence Judgment - Noman Khanvez

I note the following from the sentencing judgment concerning Noman.

First, his Honour emphasised that in sentencing Noman he had no regard to the fact that during the attack Awais Awan was stabbed. His Honour also excluded from consideration any suggestion that Noman may have been aware of that.

Second, his Honour received a Victim Impact Statement from Waqas Ahmad. He said that he had left his studies for a semester following the incident, and lost his course fees. He said that the attack had made him lose concentration and that he had become fearful, experienced pain, was scared of the dark and could not sleep. His Honour found that it must have been a "terrifying experience" for Waqas Ahmad.

Third, his Honour made a number of references to the degree of premeditation and planning that was involved in the offence. I address this below.

Fourth, the finding of premeditation involved a rejection by his Honour of the only explanation Noman had given for the offence. Noman did not give evidence before his Honour. His Honour recorded him as having denied the initial physical assault and stated that he "had substantially reported the same thing as Zeeshan did". This was a reference to Noman's statement to the Probation and Parole Service that he had "gone to the victim's home with the intention of discussing and resolving the issue of the money owed to his friend", and claiming that he only embarked upon violence "in response to being assaulted by the victim".

Fifth, in relation to the affray charge, his Honour found that the other occupants of the building were scared by the commotion that was created, and that should be reflected in the sentence imposed. I address this further when considering ground one of Noman's appeal.

Sixth, his Honour found that the seriousness of the offences was exacerbated by those offences having occurred in the rear of the victims' home, that being a place where they were both entitled to expect security and safety.

Seventh, his Honour found that Zeeshan played a "leading part" in initiating the confrontation with Waqas and that his role was "marginally greater" than that of Shajeel and Noman. Implicit in this is that his Honour considered the roles of Shajeel and Noman to be approximately the same.

Eighth, his Honour described Noman's subjective circumstances. At the time of the offence he was nineteen years of age. By the time he was sentenced he was twenty-one. He was born in Pakistan and came to Australia with his family in 2000. He completed his Higher School Certificate. At some stage he applied to be a police officer. At the time of sentencing he was undertaking a Bachelor of Business and Commerce at the University of Western Sydney. He had part-time employment in a customer service job and made substantial contributions to the expenses of his household. He lived with his mother, his brothers, and his brothers' wife and children. He had no prior convictions.

Ninth, his Honour noted that after finishing his sentence Noman (and the other offenders) would return to the domestic and family situation from which the dispute arose. This led to his Honour stating that he had "concerns about the prospect of their respective and individual rehabilitation in future circumstances if there is any kind of repeated or wider familial conflict".

Tenth, his Honour considered and rejected a submission that a non-custodial sentence was appropriate. However, having regard to their "respective ages, familial circumstances, prior good character" and that it would be their first time in custody, his Honour made a finding of special circumstances.

Eleventh, his Honour considered that Noman was entitled to discount of 12.5% by virtue of his plea.

Noman Khanvez - ground one - factual findings concerning premeditation and the affray

Ground one of Noman's appeal challenges two factual findings made by his Honour. The first finding that is challenged is as follows:

"As I have said, the evidence from the trial in relation to Ibrar Ahmad and Zeeshan Khanwaiz, and the agreed facts in relation to Shajeel and Noman Khanwaiz, satisfy me that there was planning and premeditation as a matter of strong and indeed overwhelming inference. Further, that what occurred on this particular evening was a direct result of the intention to confront Waqas Ahmad and to assault him." (emphasis added)

It was contended that there was insufficient evidence to support the last part of this finding, namely, that not only was there an intention to confront Waqas, but there was also an intention to "assault him". Counsel for Noman submitted that the agreed facts did not provide an adequate basis for the drawing of that inference. Reference was made to other parts of the sentencing judge's reasons in which his Honour made findings as to the degree of planning and premeditation but appeared to stop short of finding that that there was an intention to inflict violence upon Waqas Ahmad that was planned or premeditated. In those passages, his Honour referred to an "eruption of violence" as having occurred after their arrival at the premises and stated that "whatever the intention of some or all of the offenders, it escalated into violence". Later in the sentencing judgment his Honour stated that:

"The finding I make is that the intention to confront Waqas Ahmad [sic]. What then occurred was an event which was precipitated and then boiled over in the charged circumstances of the time."

The significance of these passages to this ground of appeal is that they are said to demonstrate that his Honour implicitly accepted that another inference was open which fell short of a premeditated plan to inflict violence. It was submitted that, if another inference was open, then the more serious one should not have been drawn, given that any aggravating fact or circumstance had to be established by the Crown beyond reasonable doubt.

I do not accept the premise of this submission. I do not consider that there was any discrepancy between the various findings made by his Honour as to what the premeditation of the participants extended to. I accept the Crown's submission that the effect of the finding extracted in [31] above is that what was planned and premeditated was not merely a verbal confrontation but a physical one. His Honour's later reference to "intention to confront" was merely an incomplete restatement of the more complete finding set out above at [31]. His Honour's judgment was delivered ex tempore and some allowance can be given for minor inconsistencies in phraseology. The references to "explosion of violence" and "boiled over" merely describe the intensity of the violent attack that ensued at Randwick. They are not inconsistent with the attack being premeditated.

In my view, the inference that his Honour drew that the violence was premeditated was well open. I have summarised the relevant parts of the Statement of Agreed Facts above. Noman was part of a group of at least ten males who assembled at his home on the evening of 2 September 2009 and spoke for approximately half an hour before travelling together to Randwick. According to the agreed facts, without any attempt to speak to Waqas Ahmad, Noman commenced punching him to the face and the body while another male in the group held his arms in. The inference that the infliction of violence upon Awais was planned and premeditated was not only open it was, in my view, irresistible.

The second finding of fact challenged by this ground concerns the affray offence. In the sentencing judgment his Honour found:

"What is also important - and I make this finding in relation to the affray charge particularly - is that this was a multi-share tenant set of premises where there were other occupants of different ages. Other occupants were scared by what they heard of the commotion. Evidence was called in the trial from two neighbours who lived in the apartments in the house. At least one of those, Mr Peter Hunt, had young children and was scared by what he had heard. That fear was still evident when he gave his evidence and was clearly neither feigned nor exaggerated.

That aspect needs to be reflected in the sentences imposed. That is an element of the offences under s 93C as far as Noman Khanwaiz and Shajeel Khanwaiz are concerned, not in relation to Zeeshan Khanwaiz."

It is submitted that the evidence admitted in the sentencing proceedings concerning Noman did not establish any basis for any finding that the neighbours or others in the area were in fear during the incident, or that any such fears had persisted. It was submitted that in sentencing Noman his Honour took into account evidence from the trial of Zeeshan and Ibrar Ahmad.

The relevant part of the Statement of Agreed Facts concerning the position of the neighbours was as follows:

"The lights were on in a top unit in the next block and a man and a woman were standing in the window. A number of neighbours heard the disturbance and one saw the two victims lying on the ground being kicked by males standing around them before they saw all the males run off."

It is likely that the person described in the Statement of Agreed Facts as having seen the two victims lying on the ground being kicked was the Peter Hunt described in his Honour's judgment. His Honour clearly referred to the evidence at trial and, in particular, to the evidence of Mr Hunt that his fear was ongoing. However, I do not consider that this error vitiates the sentence and warrants the applicant being resentenced by this Court. It was an element of the affray offence to which Noman pleaded guilty that a reasonable person present at the scene would fear for their personal safety. In this matter the "scene" embraces the neighbours referred to in the statement of facts. It follows that the agreed facts meant that, if one of the neighbours was a "reasonable person", then they would have so feared for their safety. I do not see any difference as a matter of substance between that conclusion and the finding by his Honour that one of the observers was in fact in fear and that fear was ongoing.

I reject ground one of Noman's appeal.

Noman Khanvez - ground two - aggregate sentence disproportionate to the totality of the criminality involved in the offences

Ground two of Noman's appeal alleges that the aggregate sentence imposed upon him for the two offences was disproportionate to the total criminality of the two offences. As I have stated, the effect of his Honour's sentencing was that Noman received a combined non-parole period of twenty-one months with a balance of term of ten months.

Counsel for Noman pointed to the common elements of the two offences to which he pleaded guilty, namely, unlawful violence for the affray offence and assault for the offence of assault occasioning actual bodily harm. He submitted that the only discrete element of criminality for the offences was that part of the affray offence which required the conduct to be such as to have caused fear to a person or persons present. It was submitted that the total punishment imposed on Noman was unwarranted having regard to the facts relevant to that discrete area of criminality.

The submissions in support of this ground quoted the following passage from Pearce v R [1998] HCA 57; 194 CLR 610 at [40]:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

In Pearce the error found by the High Court was not in the total sentence that was imposed (as they were concurrent) for the offences under s 33 and s 110 of the Crimes Act, but in the fact that it could be discerned that both of the individual sentences "contained a portion which was to punish the appellant [in that case] for his inflicting grievous bodily harm on his victim" (Pearce at [43]). This error in the individual sentences was not avoided by their being made fully concurrent (Pearce at [44] to [49]).

The possibility of "double punishment" in relation to the common aspects of two or more offences can also arise at the point when individual sentences are being aggregated, although the error is characterised as a failure to properly assess the totality of the criminal conduct involved. In Johnson v R [2004] HCA 15; 78 ALJR 616, the appellant had pleaded guilty to two charges under s 233B of the Customs Act 1901 (Cth) of attempting to obtain possession of a prohibited import. He had attempted to take delivery of a singe parcel containing 5000 ecstasy tablets and a quantity of cocaine (Johnson at [7]). At first instance he received a term of imprisonment for one charge of 10 years and for the other of 5 years with the two sentences to be served cumulatively. However the 5 year sentence was reduced by the sentencing judge on account of the totality principle (Johnson at [11]). The appellant sought leave to appeal to the Western Australian Court of Criminal Appeal arguing that the sentencing judge erred by not fixing an "appropriate" sentence for each offence and then accommodating the totality principle by making them partially cumulative ([12]). He was granted leave to appeal but his appeal was dismissed. He repeated that submission before the High Court contending that the sentencing judge's approach was inconsistent with Pearce. The High Court also rejected that argument holding that Pearce did not preclude the approach taken by the sentencing judge namely "lower[ing] each sentence [on account of totality considerations] and then aggregat[ing] them for determining the time to be served" (at [26] per Gummow, Callinan and Heydon JJ).

However their Honours found error on the part of the Court of Criminal Appeal, inter alia, by reference to the passage from Pearce at [40] cited above and some factual errors on the part of that Court:

"[33] It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle. The error in relation to the number of packages and the failure to refer to the numerous common elements strongly suggests that this did not occur.

...

[35] ... Although the appellant has therefore shown error on the part of the Court of Criminal Appeal in not having proper regard to the commonality of elements of the offences, and in accordingly not applying the totality principle to relevant facts fully and correctly stated ..."

These "common elements" identified in Johnson were qualitatively different to those in Pearce. In Pearce the two offences had "common elements". In Pearce the infliction of grievous bodily harm was an element of each of the two offences of which the offender in that case was sentenced. Error in the form of double punishment could be discerned from the length of the sentences imposed for each individual offence. In Johnson there was no overlap in the elements of the two offences but instead in the facts giving rise to the two offences. The offender attempted to possess two different drugs. If there was an error, it arose from the failure to properly apply the totality principle. If established, it was a form of double punishment that was inflicted at the point of aggregation and not at the point of determining individual sentences as was found in Pearce.

The written submissions in support of this ground acknowledged that the sentences for the affray offence were almost wholly concurrent with the sentence for the offence of assault occasioning actual bodily harm, other than for a period of three months. However, it is contended that the combined effect of the partial accumulation and the extent to which the sentence for the affray offence exceeded the offence of assault occasioning actual bodily harm was to increase the combined non-parole period by 7 months and the overall sentence by 10 months. In substance Noman is complaining of both double punishment in the individual sentences and insufficient weight being given to common elements of the two offences in assessing the totality of the criminal conduct for the purposes of determining cumulation. He complains of both an error of the type found in Pearce and the error found in Johnson.

In my view neither complaint is sustained. Noman's written submissions proceeded upon the premise that the only discrete area of criminality was that part of the affray offence which involved the effect on persons present at the scene. In fact there were two other areas of discrete criminality. First there is a separate component of the offence under s 59(2) that it occasioned actual bodily harm to the victim. It is not an element of an affray offence that any particular level of harm is suffered by the victim. In this case the injuries suffered by the victim were substantial. Second, Noman pleaded guilty to an offence of assault in company occasioning actual bodily harm. It is not an element of the affray offence that it be committed in company, although s 93C(2) enables the conduct of two or more persons to be taken together for the purposes of the offence created by s 93C(1).

Further the significance of the distinct element of the affray charge, namely the effect of the attack upon persons at the scene, cannot be understated. Offences such as s 93C have a wider focus that just the impact on the direct victim of the unlawful violence. Section 93C is located within Part 3A of the Crimes Act which deals with public order. Attacks of the kind participated in by Noman can undermine the public's confidence in the security of their streets and homes. His Honour recognised this is in the sentencing judgment when referring to the "separate policy considerations effectively requiring separate assessments of the criminality and issues of accumulation" with the affray offences.

In my view having regard to the discrete areas of criminality involved there was no element of double punishment in the individual sentences imposed for either offence. Further no error of principle is demonstrated by his Honour commencing one sentence three months after the other (see Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] per Howie J and with whom Adams and Price JJ agreed).

I reject ground two.

Noman Khanvez - ground three - sentence for affray unreasonable and plainly unjust

Ground three of Noman's appeal complains that the sentence for the affray charge was "unreasonable and plainly unjust" (citing House v R [1936] HCA 40; 55 CLR 499 at 505).

Prior to the discount provided by reason of his plea of guilty the starting point for the sentence for the affray sentence was 32 months. Having regard to the maximum penalty of ten years, it is submitted that the sentence imposed for the offence was commensurate with it being an objectively serious example of such an offence committed by an offender with subjective circumstances that did not warrant leniency. Noman contends that his offence could not be so characterised and that he had a strong subjective case.

Counsel referred us to the available statistical information concerning the sentences for affray, while properly noting their limited utility (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [43], [53] to [55]). The statistics reveal a relatively small pool of cases since the maximum penalty for the offence was increased from five years to ten years in December 2005. Approximately one-quarter of those offences have resulted in custodial sentences and the range of those sentences embraced and extended beyond that imposed in this case. In my view no useful conclusions can be drawn from that material.

Counsel also referred the Court to decisions of the Supreme Court at first instance, for affray. Each of the decisions at first instance arose out of a mêlée at Sydney Airport which has achieved some notoriety (R v Menzies [2012] NSWSC 158; R v Kisacanin [2012] NSWSC 91; R v Costa [2011] NSWSC 1392; R v Aouli [2011] NSWSC 1393; R v La Rosa [2011] NSWSC 1394; and R v Pirini [2011] NSWSC 1395). All of the sentences imposed for affray arising out of that incident exceeded that which was imposed in this matter, however the relevant circumstances are significantly different and generally worse. They are of no assistance in evaluating this ground of appeal.

Counsel also referred to three decisions of this Court concerning affray offences (Greer v R [2011] NSWCCA 40; R v Elphick [2010] NSWCCA 112; R v Dixon; R v Pearce; R v Pearce [2009] NSWCCA 179).

In Greer, this Court allowed an appeal from a sentence imposing a non-parole period of thirty months and an additional term of one year and three months. The offender had participated in a group attack on a woman and her two brothers that left the three victims hospitalised and the brothers with multiple fractures (Greer at [3]). The basis for this Court's intervention was a failure on the part of the sentencing judge to allow a discount of 25% having regard to the Criminal Case Conferencing Trial Act 2008 (Greer at [12] to [16] per Adams J). This Court resentenced the offender to a term of imprisonment with a non-parole period of eighteen months and an additional term of eighteen months (Greer at [34]). Greer provides little assistance to the applicant in this case. While the facts of the affray were more serious and the applicant's subjective circumstances were worse than Noman's, he received the benefit of a discount of 25% (Greer at [13]). Greer does not provide any support for the contention that a non-parole period of eighteen months and an additional term of ten months in this case was unreasonable or unjust.

In Elphick this Court allowed a Crown appeal in respect of sentences imposed for an affray and assault occasioning actual bodily harm. The offender had attacked a bus driver while he was driving. The motorists following had attempted to assist. The bus mounted a kerb and came to a halt. The victim suffered bruising, abrasion and skin tears (Elphick at [14]). The attack was recorded on CCTV and was described as having involved "unrelenting savagery" (Elphick at [11] per Grove J). The offender had a poor record, including convictions for offences of violence. He had previously served sentences of imprisonment and was on parole at the time of the offence (Elphick at [39] to [40]).

For the offence of affray this Court resentenced the respondent in Elphick to a term of imprisonment comprised of a non-parole period of two years and three months and an additional term of nine months. For the offence of assault of occasioning actual bodily harm his original sentence of imprisonment for one year and six months, and an additional term of six months concurrent with the sentence for the affray offence was maintained (Elphick at [48]). These sentences took into account a discount for his plea of guilty of 25% (Elphick at [44]).

In my view, there is little assistance for this ground from Elphick. In Elphick the attack was very serious but, as I have stated, the ultimate sentence took into a 25% discount for the offender's plea. Prior to that discount the total sentence was 4 years compared with 32 months for the applicant (Elphick at [44]). The sentence in Elphick does not provide support for the contention that the sentence in this case was outside the range.

In Dixon, the three respondents to the Crown appeal had each pleaded guilty to offences of affray and maliciously inflicting grievous bodily harm with intent. The respondents were at a nightclub when the mêlée occurred. They did not initiate it (Dixon at [3]). However, they joined in (Dixon at [3] to [6]). One of the respondents threw a bottle which struck a man in the face and caused him serious head injuries including skull fractures (Dixon at [7] to [8]). At first instance, the respondent, Dixon, was sentenced to a term of imprisonment of two years non-parole with a balance of term of one year for the offence of malicious inflict grievous bodily harm, and twelve months for the affray, both sentences to be served by way of periodic detention. The other two respondents received terms of full time imprisonment of two years for the offence of maliciously inflict grievous bodily harm, and fixed terms of twelve months for the affray charge.

A Crown appeal against the sentence imposed on Dixon was dismissed (Dixon at [32]). The Crown's appeal in respect of the other two respondents in that case was upheld to the extent that their sentence for inflicting grievous bodily harm was increased to a non-parole period of three years with a balance of term of three years and three months. The sentences for the affray offences were not disturbed (Dixon at [43] and [48]).

This decision is of little assistance to this case. The focus of the submissions and argument in Dixon did not concern the affray charge, but the offence of intentional infliction of grievous bodily harm (Dixon at [15] per Grove J). This is reflected in the two appeals in which the Crown was successful. It is also reflected in the dismissal of the Crown appeal in respect of the respondent Dixon. The critical factor was his low level of culpability for the s 33 offence of maliciously inflicting grievous bodily harm. The Crown conceded that his plea of guilty encompassed no more than an admission that he was part of a joint criminal enterprise to cause injury to certain people, and that he foresaw the possibility that one of the other co-offenders would cause the victim grievous bodily harm (Dixon at [20]). The relevant part of the judgment addresses the Crown appeal in the context of that concession and the arguments concerning the adequacy of the sentence for the s 33 offence (Dixon at [17] to [32]).

Finally, I should note that in Apthorpe v R [2012] NSWCCA 100, this Court dismissed an appeal against a sentence for an affray, which comprised a non-parole period of two years with a balance of term of one year and four months. The applicant and three other offenders punched and kicked the victim. One of the assailants hit him in the face with a hard object causing damage to his teeth. The victim was hospitalised. He suffered a fracture of his right nasal bone, damage to his teeth, extensive bruising of his head, face and chest, and a ruptured blood vessel in his right eye. The applicant had a poor criminal history, including convictions for violence (at [37]). It is pertinent to note the comments of Garling J at [72]:

"The affray was very serious. It was part of an ongoing dispute between two families. The numbers involved on one side, five, as against a single victim demonstrated that the victim would have been in significant fear for his safety and life. The assaults perpetrated upon the victim continued over a sustained period of time."

The applicant in Apthorpe had a far worse criminal record than Noman (Apthorpe at [37] to [41]). However, the circumstances of the affray appear to have been largely similar to this case. In Apthorpe the offender received a discount of 15%. Apthorpe tends against any suggestion that the sentence imposed in this case was unreasonable or unjust.

The task of establishing whether a sentence is unreasonable or plainly unjust takes place in the context of there being no single correct sentence, but instead involves due allowance for differences of judicial opinion at first instance while still acting in accordance with principle (Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (with whom Tobias JA and James J agreed)). This is illustrated by the decisions to which I have referred. Individual differences between the treatment of the offenders and Noman can be discerned in each of those cases. However considered individually and in combination they do not provide support for a contention that the sentence imposed for the affray offence was unreasonable or unjust. The circumstances of the affray were, in my view, serious. They involved a premeditated and planned attack at night at the victim's home. They involved a large group setting upon a single victim in the rear of a dwelling. A number of people were exposed to viewing the attack.

I reject ground three.

Noman Khanvez - ground four

Ground four of Noman's appeal concerns the sentence imposed for the offence of assault occasioning actual bodily harm in company, being one year and nine months with a non-parole period of one year and two months. Noman contends that this sentence is unreasonable and unjust.

The notional starting point for the sentence, before discount for Noman's plea, was stated by his Honour to be "in the order of twenty-three and two-third months". The maximum penalty for an offence under s 59(2) of the Crimes Act is seven years imprisonment.

As with the submissions on ground three, the applicant referred to the sentencing statistics while noting the limitations upon their utility. The statistics reveal that the majority of offences of this kind are dealt with in the Local Court and, as is to be expected, the majority (approximately 78%) result in a sentence which is not full time imprisonment. Of those cases dealt with in the higher courts, 58% result in a sentence which is not full time imprisonment. In higher court cases where imprisonment was imposed, the notional starting point adopted by his Honour was towards the upper end of, but certainly within, the range. I do not consider that the statistics offer any assistance one way or another on this point.

In my view, the notional starting point of almost twenty-four months for the offence was not excessive. The fact that the offence was committed "in company" was an element of the offence and cannot be considered an aggravating factor (s 21A(2) of the Crimes (Sentencing Procedure) Act 1999) ("the Sentencing Act'). However, the number of persons with whom it was committed in company can be considered as an aggravating circumstance. In this case ten people committed a planned and premeditated violent assault on a single individual at night at his residence. The injuries he suffered were substantial. The undertaking of such a premeditated and cowardly attack in such numbers, in my view, more than justified the starting point for his Honour's sentence.

I reject ground four.

It follows that I would not interfere with Noman's sentence.

Shajeel Khanwaiz

The Statement of Agreed Facts that I have summarised above was also utilised in Shajeel Khanwaiz's sentencing proceedings. It stated that Noman was one of the offenders who initially attacked Waqas Ahmad, and that at some point approximately "ten other males ran into the back yard" and joined Noman in punching and kicking Waqas Ahmad. One of those offenders was Shajeel. Waqas Ahmad fell to the ground and the attackers, including Shajeel, continued to assault him before attempting to pick him up by his arms and carry him off.

A Probation and Parole Service pre-sentence report concerning Shajeel was tendered before his Honour. It recorded that he had previously worked for several years as a security guard, but lost his employment after having been in a car accident in 2009 and being incapacitated for several weeks. The injuries he suffered included an injury to his leg which was still operative at the time of the offences. The report recorded the following under the heading "Attitude to the Offence(s)":

"Mr [Shajeel] Khanwaiz denied committing the offences and stated that he had accompanied his brothers to the scene of the offence but that he had remained in the car until the fighting commenced. The offender stated that he then went to break up the fight but, due to his limited mobility, was not able to do so."

Shajeel gave evidence before his Honour. In chief, he was referred to this part of the pre-sentence report:

"A. Yeah I think there's some kind of misunderstanding. I told - I didn't have any intention to go there or to hit somebody. When I went to see my brother and I saw he was fighting with Waqas ...

Q. If you can just stop there, so when I went to see my brother, what do you mean by that?

A. I was sitting in the car and they all went into the back yard and then I heard some noises, I went to have a look what's going on, even though I was on crutches I went and saw Noman having a fight with Waqas.

Q. Is it true to say you joined in?

A. Yes, I did join in.

Q. Now you say you were on crutches were you completely immobile, were you able to kick somebody?

A. I was able to kick with one leg.

Q. And did you do so?

A. Yes I did."

Shajeel was then referred to a psychologist's report which contained a statement by him that he had denied any intention to harm Waqas Ahmad or Awais Awan. In relation to that, Shajeel stated:

"A. Yeah, I think this is the same as the other one, I spoke to the psychologist, the parole officer and I clearly told them I had no intention of harming anybody, that was out of my character and I was only there when I saw Waqas and Noman fighting with each other, I had to break up the fight and I had to help my brother.

...

Q. What did you do in relation to helping your brother when he was fighting with Waqas?

A. I tried to push both of them to break up the fight, but then -

Q. Did you use your legs?

A. I must have used my leg, you know to break up because I wasn't able to push I had two crutches you know, I might have been using my leg just to break up the fight.

Q. But you certainly got involved is that right?

A. Yes, I did."

Shajeel was cross examined briefly by the Crown. The Crown did not suggest to him that his assertion that when he travelled to Waqas Ahmad's home he did not have an intention to "hit somebody" was false.

Sentencing judgment

The points made in [20] to [22], [24] to [26] and [28] to [30] above concerning his Honour's sentencing judgment apply with equal force to Shajeel. Two further matters should be noted. First, his Honour made a number of references to the evidence given by Shajeel before him. I address those below in relation to grounds one to three.

Second, his Honour described Shajeel's personal circumstances. At the time of sentencing he was twenty-nine years old, residing with his brother's family and mother. He had also completed Year 12 and stated that he intended to undertake further studies. His Honour referred to his work position and the car accident which had affected his mobility. He had no prior convictions.

Shajeel Khanwaiz - grounds one and two

Grounds one and two submit that there was no, or no proper, assessment by the sentencing judge of the role played by Shajeel in the offences. It was submitted that this failure meant that it could not be determined whether or not his role was as he stated in his evidence. As with ground one of Noman's appeal, it is submitted that the various findings his Honour made as to the degree of planning and premeditation were inconsistent and unclear. In that context Shajeel points to the various findings made by his Honour that I have referred to above in relation to ground one of Noman's appeal (at [31] ff).

To the extent that this ground complains of a lack of clarity in his Honour's findings concerning what was planned and premeditated by the travelling party, it has been addressed in relation to Noman's appeal. His Honour found that that there was a plan to travel to Waqas' house and inflict violence upon him. Shajeel also pointed to findings made by his Honour which refer to there being an intention to confront Waqas but do not repeat the earlier references to the intention to assault him and which might suggest that violence was spontaneous rather than planned. As I have already stated, I consider that this involves too fine a reading of ex tempore reasons given by his Honour in a complex matter.

Shajeel also referred to the following part of the sentencing judgment:

"I do not accept the evidence that the offenders were simply going to [Waqas Ahmad's home] to talk with him. If that is, and had been, their sole purpose, it did not need those numbers, at night, in his back yard. In particular it does not explain why at least one member of that group had a knife but I must stress that there is no evidence of knowledge of that knife by any of the other three Khanwaiz offenders in these circumstances."

This passage is consistent with and confirms the finding that I have extracted at [31] above, namely that there was an intention to confront and assault Waqas Ahmad. Shajeel complains that in this passage his Honour relied upon the use by one member of a knife. In my view there is no substance in that complaint, given what is stated next.

Ultimately it was contended that his Honour's findings do not disclose with any particularity Shajeel's "intention, knowledge, initial participation and ultimate role". I disagree. The premise of the submission appears to be that his Honour was required to minutely analyse Shajeel's role in and knowledge of a group attack. His Honour was not required to undertake that task even if it were possible. In terms of the matters complained of, his Honour's findings were more than sufficient. In relation to intention, his Honour found that the intention of the offenders, including Shajeel, was to travel to Waqas' home, confront him and inflict violence upon him. The consistency of that finding with Shajeel's evidence is a matter I will return to in addressing ground three. At this point it is only necessary to state that his Honour rejected his evidence to the extent it was contrary to that finding.

In terms of knowledge, his Honour made it clear at a number of points in his sentencing judgment that he did not find that Shajeel had any knowledge of the use of a knife in the attack upon Awais Awan. In relation to initial participation, and ultimate role, these were clearly set out in the Statement of Agreed Facts and his Honour did not depart from what was stated in that document. Shajeel participated by travelling to Randwick and then, notwithstanding his leg injury, assisting his brothers and others in the savage group attack upon Waqas Ahmad.

As I have explained his Honour described Shajeel as having approximately the same role as Noman. No greater particularity of his participation in the offences was required.

Under this complaint of a lack of particularity Shajeel points to the following finding by his Honour concerning the serious injuries suffered by Awais Awan:

"I do not accept the evidence of the offenders that they simply left the premises without making enquiries as to what had happened. There is no evidence that either Shajeel or Noman Khanvez knew what happened to Awais Awan and I accept that. But there is evidence that Noman came down a laneway and said 'Get out of here quickly'. There is no evidence about what precipitated that comment nor is that admitted as against him. But again, as a matter of overwhelming inference, I do not accept that a group of cars of three young men, travelling [at] night, the distance they did, with the intention they had and then leaving as they did, would have resulted in a situation where they made no enquiries about what had happened.

I am left with this sworn evidence of Mr Shajeel Khanwaiz, for example, that he did not find out until a couple of hours later what had happened [to Awais Awan]. That is the basis on which I make that finding."

Shajeel complains that this leads one to speculate about the nature of the findings made against him. He asks: "Is it that the appellant did not make enquiries and did not find out until a couple of hours later, or is it that he would have made enquiries in the car, or is that the comments by Noman indicate a knowledge at the time?" I do not think any such speculation is called for. The short answer to the question posed by Shajeel is that his Honour did not make any finding against him in this passage. In this respect his Honour accepted his evidence that he had no knowledge of Awais Awan's stabbing injuries. The passage appears to be directed to the position of Ibrar Ahmad and Zeeshan Khanwaiz. Whatever its role in their sentencing outcome, this passage did not contain any findings against Shajeel.

I reject grounds one and two of Shajeel's appeal.

Shajeel Khanwaiz - ground three - premeditation finding

Ground three of Shajeel's appeal contends that his Honour erred in finding that Shajeel's commission of the offences was "planned and/or premeditated".

This ground is related to grounds one and two. It is contended that, if his Honour found that Shajeel had planned to inflict or participate in the infliction of violence, then the finding was erroneous because it involved a rejection of that part of Shajeel's evidence in which he stated "I didn't have any intention to go there or to hit somebody" (see [77] above). Shajeel complains that he was denied procedural fairness because this evidence was not challenged and he was not warned that it would be rejected.

In support of this submission, Shajeel referred to the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42. The applicant in O'Neil-Shaw had pleaded guilty to a charge which involved an attack upon his step-father. At the sentencing hearing, he had given detailed evidence concerning various cruelties inflicted by his step-father upon him and other members of his family. He provided supporting affidavits from other members of the family. The Crown had not sought to cross examine the deponents to those affidavits nor the applicant concerning his step-father's conduct. The sentencing judge did not accept either the applicant's evidence or that of his witnesses (at [22]). Shajeel relied on the following part of the judgment of Basten JA at [26] to [27] (Howie and Johnson JJ agreeing):

"[26] Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu, the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.

[27] It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response: R v SWC [2007] VSCA 201; 175 A Crim R 71 at [12]-[15] (Maxwell P, Kellam JA and Kaye AJA). Where there has been no cross-examination of witnesses to contest their evidence, 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ v R [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ)." (emphasis added)

The outcome of the application in O'Neil-Shaw was that the sentence was remitted to the District Court for redetermination of the appropriate factual matters on sentence. It is not clear in this case whether that is the outcome sought.

One qualification on the principle enunciated in O'Neil-Shaw at [26] is that it does not apply to evidence that is "inherently implausible". This qualification has its origins in the statement of Lord Morris in Browne v Dunn (1894) 6 R 67 at 79 that there is no necessity to directly confront a witness whose story has "so incredible and romancing a character that the most effective cross examination would be to ask him to leave the witness box". Lord Morris also referred to the need to only confront a witness who had "deposed to a state of facts which is quite reconcilable with the rest of the case". In this matter the "rest of the case" is the agreed statement of facts. When agreed facts are tendered and oral evidence is given that contradicts the agreed facts, it is open to the sentencing judge to act solely on the basis of those agreed facts. There is no requirement for the sentencing judge to advise the parties that he or she proposes to act on the agreed facts, even though they are inconsistent with other material, including evidence given by an offender (R v Falls [2004] NSWCCA 335 at [26] per Dunford J; Zammit v R [2010] NSWCCA 29 at [26] per Howie J; McClellan CJ at CL and Harrison J agreeing).

There is no doubt that his Honour rejected so much of Shajeel's evidence as was inconsistent with the premeditation finding that I have extracted in [31] above. His Honour found as follows:

"There is evidence I have had from Mr Shajeel Khanwaiz led from him this morning but I must say it is of limited value in the circumstances of what has occurred in the light of these sentencing proceedings."

His Honour's reference to "what has occurred in the light of these sentencing proceedings" was to the tender of the statement of agreed facts. Shajeel's evidence was inconsistent with those agreed facts in a number of respects. First, he stated that he entered the mêlée because he had to "break up the fight". The agreed facts record that Shajeel and approximately "ten other males" ran into the back yard to join Noman and another male who were already punching Waqas Ahmad. When he was asked what he did to help his brother, he said he "tried to push both of them to break up the fight". The agreed facts do not record any attempt to "break up" any fight. They are inconsistent with that suggestion. The only assistance the agreed facts recorded Shajeel giving is his assistance in the punching and kicking of Waqas Ahmad. Second, in his evidence Shajeel said that he "might have been using my leg just to break up the fight". The agreed facts record that he used his legs to kick Waqas Ahmad even when he was on the ground.

These inconsistencies only concern events after Shajeel arrived at the scene of the offence whereas this ground concerns a finding as to his intention prior to and at the time of his arrival by car. However his conduct at the scene and his intention when he arrived were closely connected. In his evidence Shajeel asserted he had a benign intention in travelling to Randwick, which only became violent after he came to assist his brother and break up the fight. This is completely inconsistent with the agreed facts. The remainder of his evidence as to his intentions in attending the scene was inconsistent with an inference that is overwhelmingly pointed to by the agreed facts. As I have stated, the agreed facts record that he and the other offenders had assembled at his home half an hour before the three cars travelled to Randwick, and that Shajeel's telephone was used to call both victims at approximately 9.30pm, although neither of them answered. These facts, when considered against the agreed facts concerning the assault that occurred and which he participated in, render his evidence denying that he had any intention when he travelled to Randwick of participating or assisting in a violent attack to be "inherently implausible" in the sense used by Basten JA in O'Neil-Shaw at [26] .

It would have been preferable for the Crown Prosecutor to have expressly taken up with Shajeel his denial of having any intention to hit anyone when travelling to the scene. However, notwithstanding that failure, in circumstances where substantial parts of Shajeel's evidence concerning the offences was directly inconsistent with the agreed facts the rejection by the sentencing judge of a related part of his evidence which was inconsistent with an inference that was overwhelmingly supported by the agreed facts did not result in a breach of procedural fairness.

I reject ground three.

Shajeel Khanwaiz - ground four - subjective circumstances

Ground four of Shajeel's appeal complains that his Honour failed to have regard, or adequate regard, to his subjective circumstances: his prior good character, prospects for rehabilitation, and the likelihood of him re-offending. In my view there is no substance in any of these complaints.

In the sentencing judgment his Honour summarised Shajeel's subjective circumstances. The submissions made in support of this ground do not point to any material matter that was not considered.

His Honour specifically adverted to Shajeel's prior good character and absence of convictions at two points in the sentencing judgment:

"It is submitted in relation to each offender that their respective ages, familial circumstances prior good character and the absence of any prior convictions warrant a finding of special circumstances. In addition it is submitted that their first time in custody does also warrant a similar finding. In my view that is appropriate.

...

In terms of sentencing options, for all three counts, counsel for Zeeshan, Noman and Shajeel Khanwaiz have submitted that a non-custodial penalty is appropriate. I have considered that submission in the context of the fact that none of the offenders have relevant prior convictions - they are all persons, hitherto, of good character. [His Honour nevertheless concluded that] the requirements of both general and specific deterrence warrant a finding of a custodial sentence." (emphasis added)

Thus his Honour relied on Shajeel's prior good character in making a finding of special circumstances and considered it when weighing up the competing considerations in determining whether to impose a custodial sentence. There is no basis for contending that his Honour did not also consider it when determining the length of the sentences to be imposed.

The complaint that his Honour did not consider Shajeel's prospects of rehabilitation and the likelihood of him re-offending concerns the following passage from the sentencing judgment:

"Rehabilitation

It is likely that these offenders will go back to the domestic and family situations from which the dispute arose. This is advanced by all counsel as a basis for a finding of special circumstances. But it is clear that the three Khanwaiz offenders - who live together - acted as a group. There was a degree of mutual reinforcement of their behaviour. Given this, I have some concerns about the prospects of their respective and individual rehabilitation in future circumstances if there is any kind of repeated or wider familial conflict. That can only be speculative; hopefully, no similar situation will arise although there was and is a substantial degree of feeling about this matter."

Shajeel's submissions complain that, apart from a brief reference in the sentencing judgment to the opinion of a psychologist that there was a low prospect of him reoffending, this was the extent to which his Honour referred to his prospects of rehabilitation and likelihood of reoffending. The submissions do not elaborate why this extract was not sufficient. In essence, his Honour sentenced Shajeel on the basis that there was generally a low likelihood of them re-offending, but if matters involving familiar circumstances were to occur again, then one could not have the same confidence. Such an approach was open to his Honour and was sufficient to discharge the sentencing function.

I reject ground four.

Shajeel Khanwaiz - ground five - taking into account irrelevant matters

Ground five of Shajeel's application contends that his Honour took into account two irrelevant matters, namely, the evidence given at the trial of the co-offenders and the fact that an application had been made by his counsel to his Honour to disqualify himself.

The first aspect of this is similar to ground two of Noman's appeal which I have addressed at [36] to [39]. Three further matters are relied on by Shajeel in relation to this aspect of ground five.

First, Shajeel contends that his Honour inadvertently moved from rejecting the credibility of Zeeshan and Ibrar Ahmad to rejecting his evidence without conducting an individual assessment of his credibility. He points to the detailed reasons his Honour gave for rejecting the evidence given by Zeeshan and Ibrar Ahmad at their trial compared with what he contends is the absence of any such consideration of his own evidence.

This is addressed by ground three. Shajeel's evidence rejected itself. With the exception of that part of his evidence which concerned his knowledge of the injuries suffered by Awais Awan when he left the scene, his version was inconsistent with the Statement of Agreed Facts. His Honour stated that in the passage I have extracted above at [97].

Second, it is submitted that in making a finding concerning Shajeel's premeditation, his Honour took into account the fact that Ibrar Ahmad had a knife. This is a reference to the passage that I have set out above at [84]. In my view, that passage makes it clear that the presence of the knife was not a matter relied upon to make a finding against Shajeel.

Third, it is submitted that the finding in the passage I have extracted above at [89], that his Honour did not "accept the evidence of the offenders that they simply left the premises without making enquiries as to what had happened" to Awais Awan was a finding against Shajeel on the basis of material that was inadmissible against him. To the contrary, as I have explained, this passage does not contain a finding against Shajeel and his Honour accepted his evidence on this limited issue.

The effect of these submissions was that his Honour had conflated the evidence heard at the trial with the material that was admissible on the sentencing hearing involving Shajeel. With the exception of the material pointed to by Noman in relation to the affray charge, that I have addressed at [36] to [39], I do not accept this contention.

The other aspect of this ground contends that his Honour impermissibly took into account the fact that an application had been made to his Honour to disqualify himself on the basis of apprehended bias immediately prior to the sentencing hearing. The basis for that application was said to be some perception that might arise by reason of his Honour having "heard evidence in the trial inconsistent with the Statement of Agreed Facts". This ground of appeal does not suggest that his Honour should have acceded to that application. For my part I doubt whether it was even proper for such an application to have been made. Suffice to state that his Honour was correct to reject it.

Instead this ground contends that his Honour relied on the fact that the application was made to reject Shajeel's evidence. The submissions refer to the passage from the sentencing judgement set out in [97] above, where his Honour concluded that the evidence of Shajeel Khanwaiz was of "limited value in the circumstances of what has occurred in the light of this sentencing proceeding". It is submitted that this is a reference to the fact that an apprehended bias application had been made. The suggestion that his Honour rejected the evidence of Shajeel Khanwaiz because an application had been made to his Honour to disqualify himself is no light matter. I do not propose to dwell upon whether it should have been made. In any event, I have already explained this finding at [98] above. In my view, there is no basis for this contention.

I reject ground five.

Shajeel Khanwaiz - ground six - the sentence was manifestly excessive

Ground six of Shajeel's appeal submits that the sentences for both the affray offence and assault occasioning actual bodily harm in company offence were manifestly excessive. The submissions did not travel higher than those made in relation to Noman. I have already described the subjective circumstances of Noman compared with Shajeel. There was no material difference between them. As I have stated his Honour considered that their involvement in the offences was at approximately the same level (see [26]). Accordingly, my conclusions as to grounds three and four of Noman's appeal apply with equal force to this ground.

I reject ground six.

Shajeel Khanwaiz - further ground

At the hearing of the appeal Shajeel was granted leave to amend his grounds of appeal to add a ground that was identical to ground two of Noman's appeal. His counsel adopted the arguments made in support of that ground. For the reasons I have already given, I would reject this ground.

It follows that I would not interfere with Shajeel's sentence.

Zeeshan Khanwaiz

As I have stated, Zeeshan Khanwaiz was convicted following his trial with Ibrar Ahmad. The agreed statement of facts concerning Noman and Shajeel were not admissible against Zeeshan although its description of the background and course of the attack was generally consistent with the evidence led by the prosecution at the trial. At this point it is only necessary to note two matters concerning those parts of the sentencing judgement that concern Zeeshan.

First, his Honour addressed the role of Zeeshan in the attack in some detail and in doing so resolved differences in the evidence led at the trial. Tendered during the trial were ERISP interviews of Zeeshan and Ibrar Ahmad. In the sentencing judgment his Honour referred to them as having lied during their ERISP interviews. Both gave evidence at their trial. His Honour accepted the evidence given by the two victims at the trial over their evidence.

The rejection of Zeeshan's evidence and the acceptance of the evidence of the victims had consequences in terms of an assessment of Zeeshan's role in the attack upon Waqas Ahmad. Zeeshan had telephoned Waqas Ahmad prior to the assailants travelling to Randwick. At the trial it was suggested to Waqas Ahmad that in that conversation he had invited Zeeshan to come to his place and had provided his address. Waqas Ahmad denied that. His Honour accepted that denial. Further, there was another telephone call from Zeeshan to Waqas Ahmad that caused the latter to come downstairs from his unit and into the back yard where he was attacked by Noman Khanvez and others.

In the end result, his Honour found that Zeeshan played a "leading part in initiating what occurred in relation to Waqas Ahmad"; that it was Zeeshan who induced Waqas Ahmad to come to the back yard so that he could be assaulted; and that Zeeshan was "actively involved in the assault on Waqas Ahmad". Otherwise, the finding of premeditation that I have described in [31] above applies with equal (and perhaps greater) force to Zeeshan.

Second, his Honour described Zeeshan's subjective circumstances. He was married with three children and lived in rented accommodation with his mother and his brothers. His third child was born just prior to the sentencing proceedings. He came to Australia from Pakistan in 2000. He had worked for a time as a taxi driver. He had lower back pain which limited his work capacity. He provided a number of referees who testified to his character. His Honour described him as a family man. He had also worked as a security guard for three years, but had been on unemployment benefits for some time. He was twenty-nine at the time he was sentenced. He had no prior convictions.

Zeeshan Khanwaiz - ground one

Ground one of Zeeshan's appeal contends that his Honour erred in failing to "find as a relevant factor that the matter could have been disposed of in the Local Court".

A submission to this effect was made to his Honour. His Honour addressed it as followings:

"In terms of these offences, the other matters I am required to take into account are these: the assault occasioning actual bodily harm and the s 93C offence could have been prosecuted in the Local Court. However, it was appropriate in my view for these prosecutions to be brought as part of the total proceedings in this Court. In accordance with the principles referred to in Palmer [2005] NSWCCA 349, this is not a matter which I consider relevant to the exercise of my sentencing discretion given the overall totality of the circumstances of the offences I have referred to earlier." (emphasis added)

It was contended that this passage revealed two related errors. The first was that his Honour had wrongly proceeded on the basis that whether this factor should be taken into account depends upon whether or not it was appropriate to prosecute the proceedings in the District Court. It is submitted that the effect of taking that approach was to overlook that Zeeshan was not being sentenced for the more serious charge of wounding with intent to cause grievous bodily harm to Awais Awan, in respect of which he was acquitted. The second error was said to be that his Honour failed to distinguish Zeeshan's case from Noman and Shajeel. They were sentenced for two offences, including the affray, whereas Zeeshan was only sentenced for the charge of assault occasioning actual bodily harm in company. In my view this second complaint has no substance. His Honour was cognisant of the differences between the offences the three brothers were convicted of. The first complaint requires closer consideration.

The reference by his Honour to Palmer is to the judgment of Hall J in R v Palmer [2005] NSWCCA 349 and in particular to the passage at [15] where his Honour distils a number of principles concerning the potential relevance to a sentencing court that the matter before it could have been dealt with by a lower court. Palmer states that this circumstance might give rise to intervention by an appellate court in the case where that circumstance "has been entirely overlooked by the sentencing judge", citing R v Crombie [1999] NSWCCA 297 at [16]. On any view, that is not what occurred in this case. The contention is not that his Honour over-looked it, but that his Honour failed to give it any weight.

Zeeshan also relies upon a passage from the judgment of Johnson J in R v Gent [2005] NSWCCA 370 at [84]-[85]. For the sake of completeness, those paragraphs should be read together with [86]:

"[84] An offence which, as a matter of jurisdiction, is capable of being disposed of summarily may be prosecuted on indictment in a number of circumstances:

(a) the offence may be one of a number of offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge (see, for example, El Masri);

(b) the offence may be one where the Director of Public Prosecutions, in the exercise of discretion, has determined that the matter ought to proceed on indictment: s 4J(1) Crimes Act 1914 (Cth); s 260(1) or (2) Criminal Procedure Act 1986;

(c) infrequently, the offence may be one where the offender resisted summary disposal and elected for prosecution on indictment: s 4J(1) Crimes Act 1914 (Cth); s 260(1) Criminal Procedure Act 1986.

[85] The principles in Crombie and El Masri have particular application with respect to the first class of offences referred to in the preceding paragraph. In such a case, the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court. That is not this case.

[86] The Commonwealth Director of Public Prosecutions, in the present case, formed the view that this matter was appropriate to be prosecuted on indictment. That is a decision which lies within the exercise of prosecutorial discretion and in relation to which provision is made in paras 5.9-5.11 of the Prosecution Policy of the Commonwealth Director of Public Prosecutions. Similar provisions exist with respect to State offences in para 8 of the Prosecution Guidelines of the Director of Public Prosecutions (NSW): R v Palmer [2005] NSWCCA 349 at 10. Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v R (1995) 184 CLR 501 at 512 and 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134 at paras 40ff. In R v Murray [2000] NSWCCA 159, Carruthers AJ (Hulme J agreeing) said at para 16:

It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded with in the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court.

In my view, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment before the Crombie and El Masri principles could provide an argument in mitigation resulting from a lost opportunity for summary disposal of that offence."

Zeeshan contends that his case falls within the "first class of offences" referred to in [84] of this extract from Gent, namely, that his offence was less serious than offences in respect of which he was committed for trial but he was later acquitted of the more serious charge. He submits that he was committed for trial on the wounding with intent to cause grievous bodily harm charge which was strictly indictable, but was only convicted of an offence involving assault occasioning actual bodily harm which could have been dealt with either on indictment or summarily.

In my view, these passages from Gent do not assist Zeeshan. The statement in Gent at [84] needs to be considered with the qualifying statement in the last part of [86]. The circumstance contemplated by Gent at [84](a) of a person being acquitted of a more serious charge but convicted of a less serious charge that could have been dealt with summarily, presupposes that the prosecution of the offender for the less serious charge on indictment would have been "inappropriate". In this case, I do not consider that the prosecution of Zeeshan on indictment on the charge of assault in company occasioning actual bodily harm would have been a very "clear case" of an "inappropriate" forum being chosen. Leaving aside the position of co-offenders, it was a particularly serious example of the offence.

His Honour discounted any consideration of leniency for the fact that Zeeshan's offences could have been prosecuted in the Local Court on the basis that it was appropriate for Zeeshan to be prosecuted "as part of the total proceedings" in the District Court. I understand this is a reference to the successful and more serious charges that were brought against his co-accused, Ibrar Ahmad, and which arise out of the same facts. Contrary to Zeeshan's submissions I consider that was an adequate basis to reject the application of this principle. It is an approach that is consistent with Gent at [86].

For the above reasons, I reject ground one of Zeeshan's appeal. For my part, I have some difficulty in understanding how a principle affording leniency on the basis that the matter could have been dealt with in the Local Court can be reconciled with the Sentencing Act. On its face, that legislation appears to require that all courts that fall within the definition of "court" in s 3 apply the same criteria when determining an appropriate sentence.

While it is often contended that the District or Supreme Court should have taken into account as a mitigating factor the circumstance that the matter could or should have been dealt with in the Local Court, it is unclear why that is relevant or how it is to be done. It may be that its significance is that the Local Court could only impose a maximum term of imprisonment for two years (see R v Crombie [1999] NSWCA 297 at [13]) whereas the Supreme and District Courts can impose a greater sentence. However this presupposes that the appropriate sentence in the particular case is one of imprisonment for two years or less. If that is right then all that is relevant is that supposition and it is not necessary to consider what forum the offender should have been sentenced in. In such a case the District or Supreme Court should just impose the sentence that it considers appropriate. If the District Court or Supreme Court considers that the appropriate sentence is greater than the maximum that could have been imposed by the Local Court then it would follow that the precondition to invoking the principle as discussed in Gent at [86] is not satisfied and this principle is not engaged. In either case a consideration of the circumstance that the matter could have been dealt with in the Local Court appears to be an unnecessary distraction from the proper performance of the task required by the Sentencing Act. However, no argument was directed to this and it is not necessary for me to consider the matter further.

I reject ground one.

Zeeshan Khanwaiz - ground two

Ground two of Zeeshan's appeal submits that his Honour erred in finding that the applicant did not have reasonable prospects of rehabilitation.

The finding complained of is extracted in [106] above. As formulated, this ground of appeal is misconceived. Honour did not find "that the applicant did not have reasonable prospects of rehabilitation". Instead, his Honour found that he had concerns about aspects of his rehabilitation, namely, the propensity to re-offend in cases of familial conflict. Otherwise, to the extent that this ground is to be construed as a challenge to that finding, I see no basis for it. His Honour's doubts were justified by the circumstances of the offence. In the case of Zeeshan, his Honour also had the opportunity to view his ERISP and his evidence at his trial.

I reject ground two.

Zeeshan Khanwaiz - ground three - manifestly excessive

Ground three of Zeeshan's appeal contends that the sentence imposed was manifestly excessive.

Zeeshan's total sentence was twenty-seven months. With a finding of special circumstances, he received a non-parole period of eighteen months and a balance of term of nine months. In determining the sentences of Shajeel and Noman for the same offence of assault occasioning actual bodily harm, his Honour started with a total sentence of just under two years imprisonment, and then applied a discount reflecting their plea of 12.5%. In the end result, they received sentences of twenty-one months, consisting of a non-parole period of fourteen months and balance of term of seven months. The differences between the starting points of the sentence for Zeeshan compared with the sentences of Shajeel and Noman, being on the one hand twenty-seven months and on the other hand just under twenty-four months, reflected the findings I have described earlier as to the greater role played by Zeeshan in the offences.

In terms of their relative subjective cases, Zeeshan's was in one sense weaker because he was the eldest of the three brothers; in another sense it was stronger because he had dependent children (see below).

Given that I have concluded that the sentences for Shajeel and Noman for the offence of assault occasioning actual bodily harm in company were not excessive, and that the differences between their sentences and Zeeshan's sentence are explicable for the reasons I have just given, it follows that I do not consider that Zeeshan's sentence was manifestly excessive. In deference to his submissions I note three further matters.

First, it was submitted on Zeeshan's behalf that the injuries suffered by Waqas Ahmad were not particularly serious. I have described his injuries at [18] above. During Zeeshan's trial photographs of Waqas Ahmad after the assault were tendered. His Honour stated the photographs depicted "facial and other scarring and bruising which occurred on the sides of the face, particularly the lip, the mouth, the arms and the back". Emphasising the injuries suffered by Waqas Ahmad does not assist Zeeshan.

Second, Zeeshan's submissions also referred to three decisions concerning s 59 offences in this Court that were referred to by his Honour, namely, R v Stebbings [2001] NSWCCA 262; R v Mackay [2003] NSWCCA 87 and R v Hamze [2004] NSWCCA 423. In Stebbings, this Court allowed an appeal against a sentence of imprisonment of four years with a non-parole period of two years for an offence of assault occasioning actual bodily harm, and substituted a sentence of two years and six months with a non-parole period of fifteen months. The offender hit his wife with a "backhander". It involved considerable force and she sustained a black eye and a swollen cheek (at [3]). The offender had a poor criminal record (at [5]).

In Mackay, the offender was sentenced for an offence of maliciously inflict grievous bodily harm and assault occasioning actual bodily harm. For the former, he was sentenced to a term of imprisonment of three years with a non-parole period of ten months, and for the latter he was given a concurrent sentence of eighteen months with a non-parole period of ten months. Both offences arose out of the same incident of domestic violence. The offender had punched his wife, broken her wrists and held a knife to her throat. This Court allowed the appeal against the sentence in respect of the offence of maliciously inflict grievous bodily harm, and substituted a sentence of two years and three months imprisonment with a non-parole period of ten months. The sentence for assault occasioning actual bodily harm was not interfered with.

Hamze was a Crown appeal involving an offence of being an accessory before the fact to a charge of malicious wounding in company contrary to s 35(2) of the Crimes Act. The respondent had been sentenced to a term of imprisonment of two and a half years with a non-parole period of six months. This Court increased the sentence to three and a half years with a non-parole period of fifteen months. The respondent had organised a group attack on the victim via telephone calls from gaol.

As I have stated, these were cases noted by his Honour in the sentencing judgment. Hamze was irrelevant given the offence involved, but Stebbings and Mackay were of potential assistance. In his submissions Zeeshan sought to distinguish these cases on various bases. There are obvious differences between those cases and his. However, distinguishing them does not assist Zeeshan in establishing that the sentence imposed was manifestly excessive. If anything, Stebbings provides support for the contrary view. While the offender's action in Stebbings was worse than Zeeshan's, it did not involve a group attack.

Third, at the hearing of this appeal a matter arose concerning the applicant's family circumstances. Under the heading "Special Circum-stances" his Honour stated as follows:

"It is submitted in relation to each offender that their respective ages, familial circumstances, prior good character and the absence of any prior convictions warrant a finding of special circumstances. In addition it is submitted that their first time in custody does also warrant a similar finding. In my view that is appropriate.

I also take into account the hardship to their respective dependents. The evidence is not sufficient in my view to warrant a finding of exceptional circumstances as the Court of Criminal Appeal on [sic] other authorities have referred to in such cases as R v Edwards (1996) 90 A Crim R 510; T v R (1990) 47 A Crim R 29; and R v X [2004] NSWCCA 93 at [24]."

The reference to their "respective dependants" appears to be solely concerned with Zeeshan. As I have stated, at the time of sentencing he had three young children.

The reference to R v Edwards and the need for "exceptional circumstances" was a reference to the approval by Gleeson CJ in Edwards to the statement by Wells J in R v Wirth (1976) 14 SASR 291 at 295-296 that hardship to "spouse, family and friends" only "ought to be taken into account where the circumstances are highly exceptional".

Although his Honour was cognisant of the hardship Zeeshan's incarceration would cause his dependants, namely his wife and children, his Honour considered that did not amount to "exceptional circumstances" sufficient to warrant an overall reduction in sentence. It does appear, however, that it was a matter his Honour took into account in making a finding of special circumstances ("familial circumstances").

At the hearing of the appeal, counsel for Zeeshan sought to read an affidavit from his client and his wife on the so-called "usual basis", namely, that in the event the appeal was allowed and the Court proposed to re-sentence, it would consider this material. The Crown took objection to so much of the affidavit as concerned the hardship occasioned to Zeeshan's wife and children from his continued incarceration. The Crown also indicated that if the material was allowed, it would seek leave to cross examine the deponents. The Crown further submitted that the matters disclosed in the affidavit did not rise to demonstrate exceptional circumstances in any event.

As far as I can ascertain no submission was made to his Honour that the hardship to Zeeshan's wife and dependants did amount to exceptional circumstances in the sense discussed in R v Edwards. None of the grounds of appeal before us contended any error on his Honour's part concerning that, and it was not referred to in Zeeshan's written submissions.

As I have concluded that no error has otherwise been demonstrated there is no occasion to resentence Zeeshan and it is not necessary to consider this material further. The Crown's application to cross examine the deponents also does not arise.

I reject ground three of Zeeshan's appeal. It follows that I would not interfere with Zeeshan's sentence.

Accordingly, with each application I propose the following orders:

(i) leave to appeal be granted; and

(ii) the appeal be dismissed.

**********

Decision last updated: 16 August 2012

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