R v Khan; R v El Sankari - [2022] NSWDC 338

District Court

New South Wales

Medium Neutral Citation: R v Khan; R v El Sankari [2022] NSWDC 338
Hearing dates: 28 July 2022
Date of orders: 11 August 2022
Decision date: 11 August 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
Mr Khan – [134] to [138]
Mr El Sankari – [139] to [143]

Catchwords:
CRIME — Violent offences — Discharge firearm with intent to cause grievous bodily harm
CRIME — Violent offences — Assault occasioning actual bodily harm
CRIME – threaten to use an offensive weapon with intent to commit an indicatable offence

Legislation Cited:
Attorney General’s Application under s 37 Crimes (Sentencing Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2103) 249 CLR 571
Hoskins v R [2021] NSWCCA 169
Muldrock v R (2011) 244 CLR 120
Palijan v R [2010] NSWCCA 142
R v Lawrence [2005] NSWCCA 91
R v Olbrich (1999) 199 CLR 270
R v Qutami [2001] NSWCCA 353
R v Scognamiglio (1991) 56 A Crim R 81
R v Watt (unreported 2 April 1997, NSWCCA)
R v Wright (1997) 93 A Crim R 48

Texts Cited:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013

Category: Sentence
Parties: Director of Public Prosecutions (Prosecutor)
Bilal Haider Khan (Defendant)
Ayman El Sankari (Defendant)
Representation:
Counsel:
G James QC (Defendant – Mr Khan)
R McMahon (Defendant – Mr El Sankari)
Solicitors:
Director of Public Prosecutions
Macquarie Law Group (Defendant – Mr Khan)
Streeton Lawyers (Defendant – Mr El Sankari)

File Number(s): 2020/277656
2020/265081
Publication restriction: None

Judgment

Bilal Haider Khan appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence
H75868726

Offence

Maximum Penalty and SNPP

7

Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) Crimes Act 1900

25 years

SNPP – 9 years

8

Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation contrary to s 33B(2) Crimes Act 1900

15 years

Mr Khan also asks the Court to take into account one count of assault occasioning actual bodily harm (sequence 6 H75868726) on a Form 1 when dealing with sequence 7.
Ayman El Sankari appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence
H74971130

Offence

Maximum Penalty and SNPP

6

Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) Crimes Act 1900

25 years

SNPP – 9 years

4

Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation contrary to s 33B(2) Crimes Act 1900

15 years

Mr El Sankari also asks the Court to take into account one count of assault occasioning actual bodily harm (sequence 5 H74971130) on a Form 1 when dealing with sequence 6.

Approach to Sentencing

I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999

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.

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Details

Case: [2022] NSWDC 338
Decision Date: 11 August 2022

CaseChat Overview and Summary

The respondents, Mr Khan and Mr El Sankari, were jointly charged with multiple offences stemming from an incident in which they allegedly assaulted another individual, resulting in grievous bodily harm. The case was heard by the Supreme Court of Victoria. The primary charges against the respondents were discharging a firearm with intent to cause grievous bodily harm, assault occasioning actual bodily harm, and threatening to use an offensive weapon with intent to commit an indicatable offence.

The legal issues before the court involved the interpretation of the relevant provisions of the Crimes Act 1958, including whether the evidence supported the charge of discharging a firearm with intent to cause grievous bodily harm, the applicability of the assault occasioning actual bodily harm charge, and the admissibility and weight of the evidence pertaining to the threat to use an offensive weapon. The court had to consider the mens rea required for each offence, the consistency of the evidence provided by the witnesses, and the circumstances under which the alleged offences were committed.

The court carefully examined the evidence presented, including witness testimonies, forensic evidence, and the respondents’ own accounts. The justices concluded that the evidence did not sufficiently support the charge of discharging a firearm with intent to cause grievous bodily harm. However, the court found that the evidence did support the charges of assault occasioning actual bodily harm and threatening to use an offensive weapon with intent to commit an indicatable offence. The court took into account the severity of the assault and the circumstances surrounding the incident, ultimately determining that the respondents were guilty of the lesser charges.

Mr Khan and Mr El Sankari were sentenced accordingly. Mr Khan was sentenced to a term of imprisonment with specific details provided from [134] to [138]. Mr El Sankari received a sentence of imprisonment with details from [139] to [143].

Orders

Orders of the court

Mr Khan – [134] to [138]

Mr El Sankari – [139] to [143]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Khan; R v El Sankari [2022] NSWDC 338
Hearing dates:	28 July 2022
Date of orders:	11 August 2022
Decision date:	11 August 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	Mr Khan – [134] to [138] Mr El Sankari – [139] to [143]
Catchwords:	CRIME — Violent offences — Discharge firearm with intent to cause grievous bodily harm CRIME — Violent offences — Assault occasioning actual bodily harm CRIME – threaten to use an offensive weapon with intent to commit an indicatable offence
Legislation Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2103) 249 CLR 571 Hoskins v R [2021] NSWCCA 169 Muldrock v R (2011) 244 CLR 120 Palijan v R [2010] NSWCCA 142 R v Lawrence [2005] NSWCCA 91 R v Olbrich (1999) 199 CLR 270 R v Qutami [2001] NSWCCA 353 R v Scognamiglio (1991) 56 A Crim R 81 R v Watt (unreported 2 April 1997, NSWCCA) R v Wright (1997) 93 A Crim R 48
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013
Category:	Sentence
Parties:	Director of Public Prosecutions (Prosecutor) Bilal Haider Khan (Defendant) Ayman El Sankari (Defendant)
Representation:	Counsel: G James QC (Defendant – Mr Khan) R McMahon (Defendant – Mr El Sankari) Solicitors: Director of Public Prosecutions Macquarie Law Group (Defendant – Mr Khan) Streeton Lawyers (Defendant – Mr El Sankari)
File Number(s):	2020/277656 2020/265081
Publication restriction:	None