R v Khawaja - [2020] NSWDC 718

District Court

New South Wales

Medium Neutral Citation: R v Khawaja [2020] NSWDC 718
Hearing dates: 19 June 2020 (Sentence Hearing), 2 September 2020 (Notice of Motion), 11 September 2020 (Sentence Hearing)
Date of orders: 5 November 2020
Decision date: 05 November 2020
Jurisdiction: Criminal
Before: R. J. Weber SC DCJ
Decision:
(1) The offender is convicted of the offences which bring him before the Court.
(2) The offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months.
(3) The Court directs that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023.

Catchwords:
CRIME – Commonwealth Offences – act with intent to dishonestly influence a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official – attempt to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth – make a false document with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function – act intending to induce a person to be called as a witness in a federal judicial proceeding to withhold true testimony – where the offender’s deceptive and dishonest conduct caused the incarceration of an innocent man
SENTENCING – Dishonestly influence offence – Objective seriousness – relevant considerations – nature of the Commonwealth function to be exercised by the person sought to be influenced – the manner in which the official is sought to be influenced and the seriousness of such intended influence – the way in which the offender acted in order to give effect to that intention – any benefit gained by the offender and any detriment caused to the Commonwealth and the community – offending was planned and not spontaneous – where the offender made a lengthy phone call to the Border Watch Hotline and made serious, detailed allegations purporting an innocent man was engaged with groups, espousing beliefs, and potentially preparing terrorist acts in accordance with extremist ideologies – where the recipient of the information was a conduit to persons in authority – where the allegations could have had serious consequences – where there was no adverse result to the man the object of the false allegations
SENTENCING – Public justice offence – Objective seriousness – relevant considerations – the intended actions had a tendency to affect the course of justice – where the offence took place over an extended period of time and involved multiple interactions between the offender and police, at which the the offender purported to be assisting police – offending was planned and not spontaneous – where the offending continued the incarceration of an innocent man…

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: [2020] NSWDC 718
Decision Date: 05 November 2020

CaseChat Overview and Summary

The case of R v Khawaja involved the offender who was found guilty of various charges including dishonestly influencing a Commonwealth public official, perverting the course of justice, and making a false document with the intent to dishonestly influence a public official. The offender's actions led to the wrongful incarceration of an innocent person. The sentencing issues before the court included the objective seriousness of the offences, the offender's mental condition, and the appropriate sentence considering the circumstances of the case.

The court considered the nature and severity of the offences, which involved extensive planning and multiple interactions with authorities. The offences had serious consequences for the victim and significantly perverted the course of justice. The court also evaluated the offender's mental health, noting that there was expert evidence suggesting the offender's mental condition was likely causative of the offending. The court took into account the offender's contrition, lack of prior convictions, and prospects for rehabilitation when determining the appropriate sentence.

The court sentenced the offender to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months. The court emphasised the severity of the offences and the need for punishment but also considered the mitigating factors such as the offender's mental health and prospects of rehabilitation. The court ordered that the sentence commence on 27 December 2018, with the non-parole period expiring on 26 June 2021, and the balance of the sentence to expire on 26 June 2023.

Orders

Orders of the court

(1) The offender is convicted of the offences which bring him before the Court.

(2) The offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months.

(3) The Court directs that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023.

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 Khawaja [2020] NSWDC 718
Hearing dates:	19 June 2020 (Sentence Hearing), 2 September 2020 (Notice of Motion), 11 September 2020 (Sentence Hearing)
Date of orders:	5 November 2020
Decision date:	05 November 2020
Jurisdiction:	Criminal
Before:	R. J. Weber SC DCJ
Decision:	(1) The offender is convicted of the offences which bring him before the Court. (2) The offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months. (3) The Court directs that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023.
Catchwords:	CRIME – Commonwealth Offences – act with intent to dishonestly influence a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official – attempt to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth – make a false document with the intention to use it to dishonestly induce a person in the person’s capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function – act intending to induce a person to be called as a witness in a federal judicial proceeding to withhold true testimony – where the offender’s deceptive and dishonest conduct caused the incarceration of an innocent man SENTENCING – Dishonestly influence offence – Objective seriousness – relevant considerations – nature of the Commonwealth function to be exercised by the person sought to be influenced – the manner in which the official is sought to be influenced and the seriousness of such intended influence – the way in which the offender acted in order to give effect to that intention – any benefit gained by the offender and any detriment caused to the Commonwealth and the community – offending was planned and not spontaneous – where the offender made a lengthy phone call to the Border Watch Hotline and made serious, detailed allegations purporting an innocent man was engaged with groups, espousing beliefs, and potentially preparing terrorist acts in accordance with extremist ideologies – where the recipient of the information was a conduit to persons in authority – where the allegations could have had serious consequences – where there was no adverse result to the man the object of the false allegations SENTENCING – Public justice offence – Objective seriousness – relevant considerations – the intended actions had a tendency to affect the course of justice – where the offence took place over an extended period of time and involved multiple interactions between the offender and police, at which the the offender purported to be assisting police – offending was planned and not spontaneous – where the offending continued the incarceration of an innocent man…