Khouzame v The Queen - [2001] FCA 354

FEDERAL COURT OF AUSTRALIA
Khouzame v The Queen [2001] FCA 354
SENTENCING – general principles of sentencing – matters to which a Court shall have regard – whether sentence was manifestly excessive – whether due weight given to age, prior convictions and plea – whether due regard paid to the availability of a periodic detention order – whether too much weight given to general deterrence – whether too little weight given to need for rehabilitation – where appellant did not give evidence - consideration of cumulative sentences.
Crimes Act 1900 (ACT)
Firearms Act 1996 (ACT)
Periodic Detention Act 1995 (ACT)
Queen v Hayes [1984] 1 NSWLR 740 cited
House v The King (1936) 55 CLR 499 followed
The Queen v Tait and Bartley (1979) 46 FLR 386 followed
Lowndes v The Queen (1999) 195 CLR 665 followed
Dinsdale v The Queen (2000) 175 ALR 315 (HCA) followed
R v Dodd (1991) 57 A Crim R 349 followed
The Queen v Griggs (1999) 167 ALR 673 followed
The Attorney-General (SA) v Tichy (1982) 30 SASR 84 followed
Thomas’ Principles of Sentencing, 2^nd ed
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
NICHOLAS KHOUZAME V THE QUEEN
NO. A 61 OF 2000
BEAUMONT ACJ, MILES and GYLES JJ
3 MAY 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 61 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

NICHOLAS KHOUZAME
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

BEAUMONT ACJ, MILES and GYLES JJ

DATE OF ORDER:

3 MAY 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.So much of the sentence that fixed a non-parole period of three years be set aside, and in lieu thereof a non-parole period of two years be fixed.
3.The appeal otherwise be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 61 OF 2000

BETWEEN:

NICHOLAS KHOUZAME
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

BEAUMONT ACJ, MILES and GYLES JJ

DATE:

3 MAY 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION

The appellant pleaded guilty to, and was convicted on, the counts on an indictment containing six counts of burglary on residential properties in Canberra, six counts of larceny of goods from those properties, and one count of being in possession of stolen property, namely goods stolen from 14 residential properties in Canberra.
The offence of burglary is punishable by imprisonment for 14 years (s 102(1) Crimes Act 1900 (ACT) (“the Act”)). The offence of theft is punishable by imprisonment for 10 years (s 99 of the Act); and the offence of handling stolen property is punishable by imprisonment for 14 years (s 113(1) of the Act).
The first burglary took place on 12 February 1999, and the remaining five burglaries were committed over three consecutive days, commencing on 16 February. The burglaries, in…

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 Khouzame v The Queen

Details

AGLC: Khouzame v The Queen [2001] FCA 354
Case: [2001] FCA 354
Decision Date: 3 MAY 2001

CaseChat Overview and Summary

The appeal in the case of Khouzame v The Queen concerns the sentencing of the appellant, who was convicted for a series of burglaries. The court was required to determine whether the sentencing principles were applied correctly and whether the sentence imposed was appropriate in light of the appellant's age, lack of prior convictions, and demonstrated remorse. The appeal also challenged the cumulative sentencing for multiple offences committed over a short period and the failure to consider periodic detention as an alternative to imprisonment.

The court examined whether the sentencing judge erred in applying the principles set out in sections 429A and 429C of the relevant legislation. The appellant's age, lack of prior criminal history, and his early guilty pleas were highlighted as mitigating factors. The court noted the judge's adverse remarks regarding the appellant's failure to give evidence about his remorse and questions about his employment status, but also recognised that the judge accepted the appellant's fear of identifying co-offenders as the reason for not testifying. The court found that the judge's failure to give due weight to the mitigating factors and the appellant's remorse constituted an error in applying the sentencing principles. Additionally, the court considered the cumulative sentencing for multiple offences committed over six days and concluded that the judge's approach was flawed. The court also found that the judge did not adequately consider periodic detention as a viable alternative to imprisonment, despite the appellant's consent and the availability of facilities.

ORDERS:
1. The appeal be allowed in part.
2. So much of the sentence that fixed a non-parole period of three years be set aside, and in lieu thereof a non-parole period of two years be fixed.
3. The appeal otherwise be dismissed.

Orders

Orders of the court

1. The appeal be allowed in part.

2. So much of the sentence that fixed a non-parole period of three years be set aside, and in lieu thereof a non-parole period of two years be fixed.

3. The appeal otherwise be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The following submissions are advanced in support of the appeal:qNotwithstanding the large number of burglaries, the high monetary value of the stolen goods and the degree of planning and forethought, the appellant was a young man now aged 20 (18 at the time of the offences) and had no previous appearances before any court. His youth, his lack of prior convictions, his remorse evidenced by his early pleas of guilty, and the apparent prospective benefit to him of future education and rehabilitation, are compelling mitigating factors.qThe legislature contemplates (in s 429C) that a court shall impose a term of imprisonment only as a last resort. Parliament has also indicated (in s 429A) the factors to be taken into account on sentence. His Honour referred adversely to the appellant’s failure to give evidence concerning his remorse and questions about unemployment. But, whilst s 429A contemplated that the Court take into account the degree of co-operation with law enforcement agencies, and the extent to which remorse has been demonstrated, his Honour did accept that the reason why the appellant would not give evidence identifying his other co-offenders was because of his fear of the consequences. In these circumstances, there was an erroneous application of the sentencing principles enacted in s 429A.qHaving regard to the short period over which all the offences occurred (six days), his Honour erred in fixing cumulative sentences in respect of each of counts 3, 5, 7, 9 and 11.qSection 4 of the Periodic Detention Act empowers Territory courts to impose weekend detention to a maximum of 104 weekly periods, each of two days. Section 6 prescribes conditions precedent to the making of such an order, including the need for the Court to be satisfied that it is appropriate for an offender to undertake such an order, and that appropriate facilities are available. The pre-sentence report stated that the appellant consented to such an order, and that facilities were available. Having regard to the circumstances of the offence and the appellant’s age, antecedents and remorse, the Judge failed to give due regard to the prospect of the appellant’s serving a term of imprisonment in the form of periodic detention.CONCLUSIONS ON THE APPEAL The limits on the scope of appellate intervention in this area are settled. An appellate court cannot interfere with sentence merely because, in its view, the sentence is excessive. Interference can occur only if there is shown to be an error, for instance, in acting on a wrong principle, or in misunderstanding or wrongly assessing a salient feature of the evidence. Indication of error may be found in the judge’s remarks, or the sentence may be so excessive as to manifest such error (House v The King (1936) 55 CLR 499 at 504 – 505; The Queen v Tait and Bartley (1979) 46 FLR 386 at 388; Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672; Dinsdale v The Queen (2000) 175 ALR 315 (HCA) at 329). The general principles to be applied by a sentencing judge are equally well settled. They include, in addition to the provisions of s 429 and s 429C and the non-exhaustive list in s 429A, such basic sentencing principles as proportionality, so that, making due allowance for all relevant considerations, and viewing the offence objectively, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime. Without that objective assessment, there must be a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances (R v Dodd (1991) 57 A Crim R 349 at 354).

Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 61 OF 2000

BETWEEN:	NICHOLAS KHOUZAME APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	BEAUMONT ACJ, MILES and GYLES JJ
DATE OF ORDER:	3 MAY 2001
WHERE MADE:	CANBERRA

JUDGES:	BEAUMONT ACJ, MILES and GYLES JJ
DATE:	3 MAY 2001
PLACE:	CANBERRA