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Khudadadi v The Queen

Khudadadi v The Queen

Case [2021] NSWCCA 259 3 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Khudadadi v R [2021] NSWCCA 259
Hearing dates: 22 September 2021
Date of orders: 3 November 2021
Decision date: 03 November 2021
Before: Price J at [1];
Hamill J at [47];
Ierace J at [48]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against sentence – applicant found guilty by a jury of causing grievous bodily harm with intent – whether sentencing judge failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 – arguments not advanced in court below – whether sentence imposed was manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 33, 35
Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Griffin v R [2018] NSWCCA 259
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jackson v R [2021] NSWCCA 15
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulvihill v R [2016] NSWCCA 259
R v Spinks [2021] NSWSC 649
R v Tuuta [2014] NSWCCA 40
Sumpton v R [2016] NSWCCA 162
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Texts Cited:
Nil

Category: Principal judgment
Parties: Amir Khan Khudadadi (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Ms C Jeffreys (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/338529
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 June 2020

Before:

Buscombe DCJ

File Number(s):

2017/338529

Judgment

PRICE J: Amir Khan Khudadadi (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court of NSW by Buscombe DCJ (“the judge”) on 11 June 2020 in relation to an offence he committed on 8 November 2017.
Upon arraignment in the District Court, the applicant pleaded not guilty to the following counts:

On 8 November 2017, at South Wentworthville in the State of New South Wales, the applicant wounded Sayed Hosseini (“the victim”) with intent to cause grievous bodily harm to him, contrary to s 33(1)(a) of the Crimes Act. The maximum penalty for this offence is 25 years’ imprisonment, with a standard non-parole period of 7 years’ imprisonment.

On 8 November 2017, at South Wentworthville in the State of New South Wales, the applicant did wound the victim and in doing so, was reckless as to causing actual bodily harm to the victim, contrary to s 35(4) of the Crimes Act. Count 2 was charged in the alternative.

After a trial lasting four days, the jury returned a verdict of guilty on the first count on 15 November 2019. The judge sentenced the applicant to three years’ imprisonment with a non-parole period of two years. The sentence commenced on 11 June 2020 and expires on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khudadadi v The Queen

Details

AGLC: Khudadadi v The Queen [2021] NSWCCA 259
Case: [2021] NSWCCA 259
Decision Date: 03 November 2021

CaseChat Overview and Summary

In this case, the applicant, Khudadadi, was found guilty by a jury of causing grievous bodily harm with intent. He appealed against the sentence imposed, arguing that the sentencing judge failed to consider the relevant provisions of section 22A of the Crimes (Sentencing Procedure) Act 1999. Additionally, he contended that the sentence was manifestly excessive. The appeal was heard in the NSW Court of Criminal Appeal.

The central legal issues the court had to determine were whether the sentencing judge had failed to consider section 22A of the Act, and if so, whether this omission warranted a new sentencing hearing. The applicant also argued that the sentence imposed was manifestly excessive. The court had to consider the principles of sentencing, the role of section 22A, and whether the sentence was appropriate given the nature of the offence and the circumstances.

The NSW Court of Criminal Appeal found that while the sentencing judge had not explicitly referred to section 22A, the sentence imposed was not affected by this oversight. The court considered the principles of sentencing and concluded that the sentence was not manifestly excessive. The court held that the sentence was appropriate and within the range of sentences that could be imposed for such an offence. Consequently, the appeal was dismissed, and the original sentence was upheld.

In light of the above findings, the NSW Court of Criminal Appeal dismissed the appeal and confirmed the original sentence. The court did not see fit to order a new sentencing hearing, affirming the decision made by the original sentencing judge.

Orders