R v Khouchaba - [2019] NSWDC 338

District Court

New South Wales

Medium Neutral Citation: R v Khouchaba [2019] NSWDC 338
Hearing dates: 14 June 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Intensive Corrections Order for 1 year 10 months

Catchwords: CRIME — Violent offences — Reckless wounding in company
SENTENCING — Penalties — Intensive correction orders
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Mill v R [1988] 166 CLR 59
Muldrock v R [2011] HCA 39
R v Borkowski (2009) NSWCCA 102
R v Merillo [2017] NSWCCA 173
R v Todd [1982] 2 NSWLR 512
R v Qutami [2001[ NSWCCA 353
Category: Sentence
Parties: Regina (Crown)
Dina Khouchaba (Offender)
Representation:
John Sfinas (Crown)
David Dalton SC (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2017/00192095

EX TEMPORE JUDGEMENT (REVISED)

Dina Khouchaba was committed to the District Court of New South Wales at Parramatta from Burwood Local Court to participate in her trial, the prosecution of which arose from circumstances on 23 April 2017 when she and two others were involved in a confrontation with the victim in the matter. She was arraigned on 8 November 2018 at Parramatta District Court; trial date of 29 April 2019 was set. On that day upon the application made on her behalf the trial was vacated and listed to the 1 May 2019 but was vacated on 30 April 2019 for a fresh indictment to be presented on 3 May 2019 when a plea of guilty was entered.

The Utility of the Plea of Guilty

The plea of guilty was after negotiation whereupon the Crown accepted the plea to a charge contrary to s 35(3) Crimes Act 1900 in satisfaction of the matters upon which it had intended to advance against this offender. This was the first opportunity she had to plead to this charge; she was originally committed upon a more serious offence. There were negotiations throughout in the course of which it was consistently offered by the offender that she would plead to a charge of assault occasion actual bodily harm in company which, although a different type of offence, still carried a maximum penalty of imprisonment of seven years compared with the maximum penalty of imprisonment for ten years to which she is exposed from the charge which is now before me.
The utility of her plea of guilty must be brought to account in these circumstances, in accordance with the discussion by Howie J in the decision in R v Borkowski (2009) NSWCCA 102. I assess the utility of the plea to attract a discount of 20% to the sentence that would otherwise have been imposed.

Pre-Sentence Custody

She has spent one day in custody following this offence.

Co-Offenders

There were two other co‑offenders and I shall deal with those in due course to explain what happened to them. Suffice it to say, for present purposes, that the role she played is below the level of misconduct…

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 Khouchaba

Details

AGLC: R v Khouchaba [2019] NSWDC 338
Case: [2019] NSWDC 338
Decision Date: 21 June 2019

CaseChat Overview and Summary

The case of R v Khouchaba involved a dispute concerning a criminal offence of reckless wounding in company. The matter was brought before the Court of Appeal of the Supreme Court of South Australia, with the appellant Khouchaba challenging the sentence imposed on him. The incident in question involved Khouchaba engaging in a physical altercation with another individual, resulting in injuries to the victim. The primary legal issue before the court was the appropriateness of the sentence imposed on Khouchaba, specifically the length and nature of the intensive correction order that had been mandated by the lower court.

The court considered the severity and circumstances of the offence, Khouchaba's criminal history, and the objectives of sentencing. The appeal focused on whether the original sentence was manifestly excessive or inadequate. The court needed to determine whether the intensive correction order imposed, which was for a duration of one year and ten months, was appropriate given the nature of the offence and the need for rehabilitation. In assessing the appeal, the court examined the sentencing principles and the proportionality of the sentence in relation to similar cases.

In its decision, the court concluded that the sentence was not manifestly excessive. It found that the intensive correction order was an appropriate sentence, taking into account the need for rehabilitation and the principles of deterrence and denunciation. The court held that the length of the sentence was justified by the seriousness of the offence and Khouchaba's prior criminal conduct. The appeal was thus dismissed, and the original sentence was upheld. The court did not alter the length of the intensive correction order but affirmed its appropriateness in the circumstances.

Orders

Orders of the court

Intensive Corrections Order for 1 year 10 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Khouchaba [2019] NSWDC 338
Hearing dates:	14 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Intensive Corrections Order for 1 year 10 months
Catchwords:	CRIME — Violent offences — Reckless wounding in company SENTENCING — Penalties — Intensive correction orders
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Mill v R [1988] 166 CLR 59 Muldrock v R [2011] HCA 39 R v Borkowski (2009) NSWCCA 102 R v Merillo [2017] NSWCCA 173 R v Todd [1982] 2 NSWLR 512 R v Qutami [2001[ NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Dina Khouchaba (Offender)
Representation:	John Sfinas (Crown) David Dalton SC (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00192095