Crown appeal against sentence allowed; Sentence quashed; Respondent re-sentenced to imprisonment for a fixed term of 3 months to date from today's date.
IN THE COURT OF CRIMINAL APPEAL
60433/99
SULLY J SIMPSON J CARRUTHERS AJ
Tuesday 29 February 2000
REGINA v Naresh KHATTER
JUDGMENT
1 SULLY J: I have had the advantage of reading in draft the judgment of Simpson J. I regret that I am unable to agree with her Honour that the present Crown appeal should be dismissed.
2 The relevant objective facts are canvassed in detail in her Honour’s judgment. I adopt gratefully what her Honour says in that regard. I would add to her Honour’s canvass a brief, but I think significant, extract from the evidence given by the respondent at the sentence hearing. The relevant passage, given during the respondent’s evidence in chief, is as follows:
“Q. Had you intended to drive at all when you were consuming the alcohol?
A. Yep, basically in the morning I have to start at 6 o’clock, I said “I don’t want to go there” --
Q. Yes, you were intending to drive the next morning --
A. Yeah --
Q. -- to go to work but had you intended to drive that night - when you were drinking did you know then that you were going to go out driving that evening?
A. Yep. Basically I said “I am drunk so I don’t want to go for a drive”, he was just compelling me, insisting really “Can you go there, I’m just very upset”, so I said to him “Okay” because just after that I went for a drive.
HIS HONOUR: Let me understand you. Do you say that he, as it were, forced you to drive?
A. Yeah he forced me, like he was insisting, he was just compelling me “Naresh let’s go, I don’t want to stay, I just want to spend some time outside”.
Q. Where did he want to go?
A. Bankstown and his girl friend.” [Appeal Book at 14, 15]
3 There was some brief cross-examination about this topic. It was as follows:
“Q. On the day of his death, he came to your house and you…
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 Khatter
Sign in free to access the full text
Details
AGLC
R v Khatter [2000] NSWCCA 32
Case
[2000] NSWCCA 32
Decision Date
CaseChat Overview and Summary
In the case of Regina v Khatter, the Crown appealed against the sentence imposed on the respondent, Naresh Khatter, who was convicted of dangerous driving causing death. The District Court had sentenced Khatter to two years of imprisonment to be served by way of periodic detention. The Court of Criminal Appeal considered whether the sentence was manifestly inadequate. The Court identified several errors in the sentencing process, including the failure to adequately explain the departure from the guideline in R v Jurisic and inappropriate weight given to subjective circumstances. Despite these errors, the Court found that the sentence was not manifestly inadequate, considering the respondent's compliance with the periodic detention sentence and his family circumstances. The Court of Criminal Appeal allowed the Crown appeal against sentence, quashed the original sentence, and re-sentenced the respondent to imprisonment for a fixed term of 3 months to date from the date of delivery of the judgment of this Court.