R v Khamas - [1999] NSWCCA 436

Reported Decision:
108 A Crim R 499

New South Wales

Court of Criminal Appeal

CITATION: R v Khamas [1999] NSWCCA 436

FILE NUMBER(S): CCA 60250/99

HEARING DATE(S): 25 November 1999

JUDGMENT DATE:
25 November 1999

PARTIES :

Danny Khamas - Appellant
Regina - Respondent

JUDGMENT OF: Sully J at 46; Hulme J at 1; Hidden J at 47

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Judge Moore

COUNSEL: P Byrne SC - Appellant
RA Hulme - Crown

SOLICITORS: Glenn K Walsh - Appellant
SE O'Connor - Crown

CATCHWORDS:

DECISION: See paragraph 45.

IN THE COURT OF
CRIMINAL APPEAL

No: 60250/1999

SULLY J
HULME J
HIDDEN J

Thursday, 25 November 1999

REGINA -v-Danny KHAMAS
JUDGMENT

1    HULME J : In this matter, on 15 April 1999, the respondent to this Crown appeal pleaded guilty to two counts of attempt armed robbery and one of assault. All three counts arose out of the one incident on 26 September 1998 when the respondent and a co-offender sought to obtain the takings of a McDonald's restaurant from the female manager of that restaurant and a security guard and in the course of doing so punched and kicked the security guard. The arm involved was a replica semi automatic pistol.

2    On 15 April 1999, Judge Moore sentenced the respondent on each count to concurrent terms of imprisonment for two years, such imprisonment to be by way of periodic detention.

3    By letter dated 21 April 1999 the Director of Public Prosecutions wrote to the respondent informing him that an appeal against the inadequacy of the sentence was being considered. The court was provided with proof of posting of that letter, although it was informed by Mr Byrne SC, appearing for the respondent, that the letter had not been received.

4 A notice to appeal against all three sentences was signed on 19 May and served on 27 May. It may be no coincidence that the judgment of this court in R v Henry (1999) 46 NSWLR 346 setting out guidelines for the sentencing of persons convicted of armed robbery was delivered on 12 May 1999.

5    The two offenders planned the offence over a day or two preceding its commission. Earlier in the day of 26 September 1998, the respondent had obtained a replica pistol, which he owned, from a friend who had borrowed it. On the evening of 26 September, the offenders drove to a place near the restaurant, parked the car, checked out the area and waited until the restaurant had closed and other staff had departed.

6    Some time after 1 am the two victims left the premises and went toward the manageress' car. There the offenders approached them, the co-offender appeared to cock the weapon. Both offenders demanded "the money". The security guard resisted, was kicked and punched by the co-offender and later punched at least once by the respondent. During the incident the respondent attempted to forcibly take from the manageress her…

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 R v Khamas

Details

AGLC: R v Khamas [1999] NSWCCA 436
Case: [1999] NSWCCA 436
Decision Date: 25 November 1999

CaseChat Overview and Summary

In this case, the appellant, Danny Khamas, appealed against the sentences imposed by the District Court for two counts of attempted armed robbery and one count of assault. The sentences were imposed following the appellant's guilty pleas to these charges, which arose from an incident where the appellant and a co-offender attempted to rob a McDonald's restaurant. The appellant's co-offender used a replica pistol during the incident, which resulted in the assault of a security guard. The Crown appealed against the adequacy of the sentences, which were concurrent terms of imprisonment for two years by way of periodic detention.

The key legal issue for the Court of Criminal Appeal was whether the sentences imposed by the District Court were inadequate. The appeal hinged on whether the trial judge erred in his assessment of the appropriate sentence, particularly in light of the appellant's clean criminal record, the use of a replica weapon, and the appellant's remorse and insight into his criminal behaviour. The Court also considered the impact of the appellant's background, including his troubled upbringing and the absence of any psychological disorder, as mitigating factors.

The Court of Criminal Appeal found that the trial judge had erred in several aspects of his sentencing, particularly in the weight given to the plea of guilty and the impact on the appellant's family. The Court held that these errors were significant enough to miscarry the sentencing process. Despite the mitigating factors, the Court emphasised the gravity of the crime, which involved a premeditated act of violence intended to instill fear and obtain money by force. The Court concluded that a non-custodial sentence was not appropriate, but exercising its discretion, decided not to impose a full-time custodial sentence given the appellant had already been awaiting sentence for seven months. However, the Court found the sentence for the attempted armed robbery charges to be manifestly inadequate and increased the term of periodic detention for these offences to three years each, to commence from the date of the original sentencing. The sentence for the assault charge was deemed adequate, and the appeal against this sentence was dismissed.

Orders