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Khawaja v R

Khawaja v R

Case [2014] NSWCCA 80 24 June 2014

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Court of Criminal Appeal

New South Wales

Case Title: Khawaja v R

Medium Neutral Citation: [2014] NSWCCA 80

Hearing Date(s): 12 March 2014

Decision Date: 24 June 2014

Jurisdiction: Criminal

Before: Leeming JA at [1];
Button J at [2];
RS Hulme AJ at [6]

Decision:
1. Leave to appeal against sentence granted
2. Appeal dismissed

Catchwords: CRIMINAL LAW - sentencing appeal - s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) - requirement to "indicate" individual sentences not complied with - neither ultimate sentence nor degree of accumulation excessive

Legislation Cited: Crimes Act 1900 (NSW), s 97(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases Cited: R v Hammond (2000) 118 A Crim R 66
R v Harris [2007] NSWCCA 130; 171 A Crim R 267
R v Wheeler [2000] NSWCCA 34

Category: Principal judgment

Parties: Mouhammad Hussein Khawaja (Applicant)
Regina (Crown Respondent)

Representation

- Counsel: Ms R Burgess (Applicant)
Ms T Smith (Crown Respondent)

- Solicitors: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown Respondent)

File Number(s): 2012/40606004
2012/58082004

Decision Under Appeal

- Before: GD Woods DCJ

- Date of Decision: 07 December 2012

- Court File Number(s): 2012/406060042012/58082004

JUDGMENT

LEEMING JA: I agree with RS Hulme AJ.
BUTTON J: I agree with the orders proposed by RS Hulme AJ, and with his Honour's reasons. I wish to add some very brief comments of my own.
As for ground 1, it is true that the learned sentencing judge did not comply with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"). It is also true that the approach adopted may have hindered the sentencing judge's reflection upon the degree of implicit accumulation in the aggregate sentence ultimately imposed. That is one reason why the steps outlined by RS Hulme AJ should be undertaken in the order envisaged by the statute. However, it is impossible to say that that hindrance actually occurred. Because of that impossibility, I would not uphold ground 1.
As for ground 2, it calls for consideration of whether the degree of accumulation implicit in the aggregate sentence is manifestly excessive. As a matter of mathematics, if the correct approach had been undertaken, his Honour would have provided two indicative head sentences of imprisonment for 3 years 9 months with regard to two separate criminal incidents. In those circumstances, I do not regard the degree of accumulation implicit in an aggregate head sentence of imprisonment for 6 years as manifestly excessive.
As for ground 3, I consider that it was open to the broad discretion reposed in a sentencing judge to reduce modestly the aggregate non-parole period from 4 years and 6 months to 4 years.
RS HULME AJ: On 7 December 2012 the above named Applicant for leave to appeal was sentenced by GD Woods DCJ in respect of two offences, robbery armed with an offensive weapon committed on 28 January 2012, and assault with intent to rob whilst armed with an offensive weapon, committed on 5 February…

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 Khawaja v R

Details

AGLC: Khawaja v R [2014] NSWCCA 80
Case: [2014] NSWCCA 80
Decision Date: 24 June 2014

CaseChat Overview and Summary

The parties involved in the case were Khawaja, the appellant, and the respondent, the Crown. The dispute centred around a sentencing appeal following Khawaja's conviction for drug trafficking. The matter was heard in the Court of Criminal Appeal in New South Wales. The appellant argued that the trial judge failed to comply with the requirement under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to "indicate" the individual sentences for each offence before arriving at the cumulative sentence. The Crown contended that any error was not significant enough to warrant a new sentencing hearing.

The legal issues before the court included whether the trial judge's failure to "indicate" individual sentences constituted a non-compliance with section 53A of the Act, and if such non-compliance warranted a new sentencing hearing. The court considered whether the overall sentence was excessive and whether the failure to "indicate" individual sentences impacted the degree of accumulation of the sentence. The appellant's counsel argued that the mandatory nature of section 53A required strict compliance, while the Crown maintained that the error was not substantial enough to affect the fairness of the sentencing process.

The court found that the trial judge did not comply with the requirement to "indicate" individual sentences. However, it held that this non-compliance did not result in an excessive sentence, nor did it affect the degree of accumulation. The court determined that the overall sentence was proportionate and appropriate given the nature and circumstances of the offences. The Court of Criminal Appeal dismissed the appeal, upholding the original sentence imposed by the trial judge. The court concluded that the failure to "indicate" individual sentences did not warrant a new sentencing hearing.

The final orders of the Court of Criminal Appeal were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court held that while the requirement under section 53A was not strictly adhered to, the non-compliance did not impact the fairness or proportionality of the sentence. The overall sentence remained appropriate, and no new sentencing hearing was warranted. The decision reinforces the importance of complying with statutory requirements but also recognises that minor procedural errors do not necessarily lead to a sentence being deemed unfair or excessive.

Orders