R v Khatter

Case [2000] NSWCCA 32


CITATION: Regina v Khatter [2000] NSWCCA 32
FILE NUMBER(S): CCA 60433/99
HEARING DATE(S): 1/2/2000
JUDGMENT DATE:
29 February 2000

PARTIES :


Crown - Appellant
Naresh KHATTER - Respondent
JUDGMENT OF: Sully J at 1; Simpson J at 13; Carruthers AJ at 39
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 98/11/2200
LOWER COURT JUDICIAL
OFFICER :
O'Reilly DCJ
COUNSEL : T L Budden SC - Crown Appellant
P Kintominas - Respondent
SOLICITORS: S E O'Connor - Crown Appellant
Doherty & Partners - Respndent
LEGISLATION CITED: Crimes Act 1900
Sentencing Act 1989
CASES CITED:
R v Jurisic (1998) 45 NSWLR 209
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Howland [1999] NSWCCA 10; 104 A Crim R 273
R v Edwards (1996) 90 A Crim R 510
DECISION: 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…

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R v Khatter [2000] NSWCCA 32
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[2000] NSWCCA 32
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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.

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

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