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)

1. 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

2. 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.

3. 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

4. She has spent one day in custody following this offence.

Co-Offenders

5. 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 to which they pleaded guilty.  The charge she faces is one that attracts a penalty below what those which applied to the charges the others faced.

The Standard Non-Parole Period

6. There is, as I said, a maximum penalty of imprisonment of 10 years, there is a standard non‑parole period for the purposes of Part 4 Div 1A, Crimes (Sentencing Procedure) Act1999 of 4 years.  The standard non‑parole period is a matter that must be brought to account when determining sentence.  In accordance with the decision in High Court of Australia in Muldrock v R [2011] HCA 39 after which parliament amended the provisions in Part 4 Div 1A Crimes (Sentencing Procedure) Act to reflect the statements of principle on that question.

7. To summarise, the standard non‑parole period applies to offences that are within the middle range of objective seriousness taking into account only the objective factors that affect the relative seriousness of the offence.  It is a matter to be taken into account when determining the appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.  I must record reasons for setting a non‑parole period that is longer or shorter should I take the step of incarcerating the offence.  I do not intend to do so. Upon the submissions that have been made to me it seems appropriate in this case to order that the sentence that she should suffer be served by way of an intensive corrections order in the community.

8. I have assessed the objective gravity of the conduct upon the material before me without reference to matters personal to the offence or the class of offenders, to which she might be said to belong. The aggravating factors to be brought to account from s 21A Crimes (Sentencing Procedure) Act include that this incident occurred in the home of the victim, in circumstances where she invited others to have a party at those premises.

9. The process I am undertaking involves a synthesis of the objective and subjective material that is before me to identify first of all, whether a sentence of imprisonment should be imposed and then if so, how it ought to be implemented, bringing to account s 5 Crimes (Sentencing Procedure) Act, which specifies that a sentence of imprisonment should not be imposed unless it is the only option appropriate in the circumstances, and s 3A of the Crimes (Sentencing Procedure) Act which articulates the purposes of sentencing including general deterrence, specific deterrence, recognition of harm, and the need to provide appropriate opportunities for rehabilitation to the offender.

The Facts

10. The victim, I will refer to as SR, lived or was living in Villawood, and during the evening of 22 April 2017 she invited about 12 of her friends to attend a casual gathering at her home.  They arrived at various times from about 8.30pm onwards.  About 1.30am on the following morning, Sunday 23 April 2017, the victim received a call on the mobile phone from a number ending in 137.  This was a co‑offender Ms El Hassan; she had met the victim about a year before through the offender presently before me and her other co‑offender, Ms Al Dakak.

11. The conversation that followed in this phone call included El Hassan saying to the victim,

"It's Jenny, do you have a girl in your house her name is Lana", the victim said, "Yeah, why?", El Hassan said, "Get her out of there", the victim said, "Can you just call her, this has nothing to do with me", El Hassan said, "If she's not out of there in the next five minutes I'm going to come to your house".  The victim said, "Look Jenny, I don't have time for this, you need to call her".

12. Calls continued coming thereafter, from that number, and from another number ending in 171.  The victim did not answer the calls initially but then tried to return calls later in the evening, or perhaps in the early morning.  About 2.58am she sent a text to the number ending in 137 saying,

"You call, call, call, and then you don't answer.  You kill my life man". 

13. About ten minutes later, while sitting in the lounge, the victim heard the sound of banging on the windows located to the side of the house where there is a path that leads to the rear yard.  Moments later the victim saw Al Dakak, the present offender, and El Hassan, open the already ajar glass sliding door and enter the house.

14. The victim saw that Al Dakak was holding a stick.  As the victim stood, Al Dakak was yelling at her about Lana.  She approached the victim and placed one of her hands around the neck of the victim and squeezed her throat.  The victim was then pushed to the ground by Al Dakak before Ms Khouchaba, the offender before me, fell on her, preventing her from getting up for a short period.

15. The victim saw Al Dakak grab a bottle of vodka from the dining table before striking the victim with it to the right side of her face just below her eye.  The bottle broke on impact with the victim's head.  The victim was hit all over her head and body.  She tried to protect herself by covering up using her hands, but this prevented her from seeing who was continuing the assault.  She was aware that Ms Khouchaba remained on top of her. 

16. The Crown concedes that it cannot prove beyond reasonable doubt that she, at any time, struck the victim with a bottle or any other implement.

17. The victim's friend tried to assist on a number of occasions, and a number of other people tried also to intervene, however they were met with aggression from the persons engaged in this attack. All three were seen to be intoxicated by drugs. It is acknowledged by the offender that she had consumed a large amount of alcohol and had consumed two lines of cocaine earlier in the evening. She has therefore, one would conclude, become intoxicated by her own hand and by force of s 21A (5AA) Crimes (Sentencing Procedure) Act that is not a matter in mitigation of her misconduct.  However, it is put before me on the basis that the decision she made to consume these substances impaired her to the extent that she was conscious of a significant part of what occurred, but not all, and that she was thereupon more easily led by the other two young women, who apparently had stronger personalities.  I shall come to explain that further when I deal with the subjective case.

18. The victim saw the stick being used as well as the attack continued, she was struck to the left side of the body with a stick, and then a second time to the back.  She suffered pain and screamed.  Al Dakak and one of the other offenders, not identified, screamed at her, "Who are you mouthing off to", the victim heard some of the guests yelling at the attackers to get off her.  The victim's friend was able to drag her away from the offenders and all three left the location. 

19. There was blood all over her clothing by this, she was in pain, an ambulance attended, and she was taken to Liverpool Hospital.  A text arrived from the number ending in 137 which read, "Lol, no you kill me man".

20. She was treated for a number of injuries, which are listed, but are not exhaustive.  These included lacerations to the back of her head, and two abrasions to her cheek; the laceration to the back of her head is of one centimetre.  There were four abrasions to her chest as well as swelling to the chest wall.  There was a 1 centimetre laceration through the epidermis and dermis on her left hip.  There were two jagged lacerations at 2 centimetres and 3 centimetres, down to the subcutaneous fat, through the dermis and epidermis of her lower back.  There was a 4 centimetre superficial abrasion to the left forearm, and significant swelling and bruising to her face back and sides.  Three of the wounds required sutures.  The largest puncture site was on her lower back, which required four sutures, the smaller wound required three sutures, and the 1 centimetre wound on her left hip required two sutures.

21. The police attended the scene and spoke to the witnesses; they seized various items relevant to the investigation.  Ms Al Dakak's fingerprints were found on an outside gate. 

22. On 23 April 2017, the detective spoke to the victim at Liverpool Hospital.  She identified this offender Ms Khouchaba, and Al Dakak, from social media pages.  Inquiries were made via the service providers of the phone number ending in 171.  That is registered in Al Dakak's name.  They confirmed the contacts from that phone number to the victim's mobile phone and also from the phone number ending in 137 which was registered to El Hassan.

23. The offender, once she knew the police were investigating her conduct, attended the police station on 27 June 2017 at 8.45am but she declined to answer any questions during her ERISP.  She was perfectly entitled to do that; there was no obligation for her to participate in the interview process, but I note that she declined to answer questions during the ERISP because there is the implication in some of the material before me including the report from a psychologist, that she was perhaps more cooperative with the investigation than the decision not to be interviewed otherwise indicates.

The Offender

24. She was born in 1995; she is to reach the age of 24 this year.  She has no antecedents other than one charge of possess prohibited drug for which she suffered a fine in 2016.  There is a sentence assessment report; this tells me that she has a supportive relationship with her family which has had a prosocial influence upon her.  She has achieved qualifications in retail and business management, as well as hairdressing and makeup artistry.  She is self‑employed, and the work history that I have been provided indicates someone who is striving to improve her position in life.  She has come from relatively modest circumstances; her mum and dad are not wealthy people.  She does not appear to be in an established pattern of offending; she had no personal grievance against the victim, and she has expressed disgust at her behaviour.

25. She is attributed with the statement that this was completely out of character and that she is not an aggressive or violent person and that appears to be so from what I have read elsewhere.  She has learned a valuable lesson;

26. she is now mindful of the people with whom she associates; and I am told that she disconnected with the group that were instrumental in leading her into her present predicament.  This is confirmed by her sisters upon inquiry made by the author of the report.

27. She admitted to the officer that she had been drinking alcohol heavily and did not make any mention of the cocaine, but that was exposed in other documents that were tendered.  I do not place much significance on the fact that she did not tell this officer that she had also had the two lines of cocaine.  She is attributed with the statement that she was dragged into the situation, and that she would not have been caught up had she realised it would have progressed to the level that it did.

28. She is attributed with regret and remorse; she is willing to engage with Community Corrections.  She is available to perform community service work, she has a low risk of reoffending, and there is work available at the rate of 200 years per month.  As a condition of the ICO I will require her to perform community service at the rate that can be provided for her without disrupting her business activities.

29. The psychologist, Dr Borenstein, provided a report on 29 May 2019.  It is of assistance in this case. I find that the only conclusion one can reach is that she did not try to embellish or enlarge upon her predicament.  She is not found to be in any psychological distress, except that there is a measure of symptoms from posttraumatic stress disorder as a consequence of an attack that she suffered by, "A girlfriend's (Jenny), then husband".  It is not entirely clear, but it appears this might well be the co‑offender.  The consequence of the attack and the assistance provided to her thereafter are summarised, in the fourth page of the psychologist report.

30. The history is included in the report in some greater detail than the sentence assessment report, including that her father derives from Lebanon, he came to Australia at age 21; her mother comes from Syria, who came here at the age of 19.  Her father is now 70 and retired, but he worked in the trolley business and her mother in home duties.  As I said, they as a family are of modest circumstances, but it would appear that they have instilled into their daughter a work ethic and they have done all that they can to provide nurturing and care through her formative years, and one cannot turn back to their conduct and find any blame in them for the behaviour upon which their daughter engaged in this instance.  Her work history is described in detail; I need not refer to that again.

31. At p 7 the psychologist refers to the intoxication including nine to ten standard drinks and two lines of cocaine from which it derived. 

32. There is a description given of the circumstances leading up to the commission of the offence.  She represented a limited memory of the event, the product of what she had to drink and the cocaine.  The statement to which I referred earlier suggesting a level of cooperation beyond that which was provided appears at p 8 where the psychologist wrote, "When Ms Khouchaba learned the police wanted to interview her, she self‑presented".  As I said, the implication is that she submitted to the investigation but all that can be said is that she submitted to the process of charging and the prosecution that followed.

33. She again expressed genuine guilt and remorse and contrition according to the psychologist. To the extent that he offers the word genuine, I put that entirely to one side, for it is not for him to offer an opinion in that regard.  It is a matter for the Court, and I am conscious of what was said by Smart AJ in the decision in R v Qutami [2001[ NSWCCA 353 and the care that is required when assessing representations such as that in the absence of evidence tested by cross‑examination, under oath or affirmation.  That said, there is a wealth of material before me supporting the proposition that she is appropriately contrite, and I give her the benefit of that finding.

34. There is material speaking to her qualities and characteristics and I need not refer to that; it is all to the same end.  She is well thought of, and her lifestyle includes a contribution she has made to the community described by her sister in her document written on 10 June 2019.  There is a curriculum vitae showing her qualifications and work history, there is material in further support of the consequence of the attack that she suffered.

35. There is a report from an associate Professor Moynham, from Royal Prince Alfred Hospital, addressing the likely impact of the alcohol and cocaine in combination upon her cognitive capacity, and the likely disinhibition from it, which as the professor noted, still does not prevent the person from making a decision about the conduct upon which they are about to engage.  I take the information in that report within the context I have outlined, providing evidence that on this one occasion, under the influence of these stronger personalities, by reason of the effect of the alcohol and cocaine, she followed where she ought not to have gone.

Consideration

36. I need to correct something earlier with regard to the offences faced by the co‑offenders; I suggested both of them faced charges that carry greater penalties than that to which this officer is exposed. It was certainly so in the case of El Hassan but not Shahad Al Dakak; she was charged with an offence contrary to s 35(3) Crimes Act as was this offender. 

37. Al Dakak's behaviour was clearly more culpable. She pleaded guilty to one offence, which is listed for sentence on 29 July 2019. El Hassan pleaded guilty to an offence of aggravated enter dwelling with intent to commit a serious indictable offence, namely intimidation in company, contrary to s 111(2) Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. She suffered a sentence of 22 months intensive corrections order, allowing 20% deduction for a plea of guilty to be served by way of home detention. I am not going to require this offender to serve a sentence by way of home detention as a condition of the intensive corrections order I am about to impose but she will be required to provide community service for a period of time, which I shall specify.

38. Ms Asvini who appeared for the Crown fairly conceded that the range of sentencing options in this case included an intensive corrections order; both Mr Dalton of senior counsel and Ms Asvini are ad item upon the question as to whether or not the line in s 5 Crimes (Sentencing Procedure) Act has been crossed; it clearly has.  I am satisfied that the objective gravity of the offence upon which this officer engaged fell well below midrange of objective seriousness.  That said, it is not necessary in this case to settle upon a non‑parole period because of the nature of the order I am going to make at the conclusion of the reasons.

36. I have been assisted with comprehensive written submissions provided by Mr Dalton who has referred me to some comparative authority including R v Merillo [2017] NSWCCA 173. I am reminded of the mitigating factors to which the offender can point, and these are that she has no relevant prior offence, s 21A (3) (e) Crimes (Sentencing Procedure) Act; she is of otherwise good character para (f); and unlikely to reoffend para (g); and there are prospects properly described as excellent for her rehabilitation in para (h).

37. There is reference to delay of over two years.  I have brought that to account, but it has attracted little weight in my assessment of the matter.  It is a regrettable fact that these proceedings in the District Court are taking longer to ultimately resolve.  The ideal is to have them concluded within 12 months of the prosecution being commenced but it is just physically impossible to do so.

38. As list judge of this Court I am well aware of the amount of work that flows through this complex, and working as hard as we can we cannot get the trials resolved any quicker than we are doing; but I have brought it to account in accordance with the decision in R v Todd [1982] 2 NSWLR 512; and the High Court of Australia Mill v R [1988] 166 CLR 59 at 66.

39. The limited weight I give to this, of course, is balanced by the fact she has had the opportunity to demonstrate her capacity for rehabilitation and so to the extent that there has been a delay, it has provided some scope for her benefit; but it remains that she has been sitting waiting for the outcome of this serious criminal misconduct to be determined by a Court so that she might know her future.

40. In this case the purposes of sentencing 3A Crimes (Sentencing Procedure) Act are all engaged.  There needs to be general deterrence, violence cannot be tolerated in our community, it happens all too frequently in this society and it has got to stop.  The Courts must do what they can to discourage others from engaging in such behaviour.  Specific deterrence does not loom as large in this exercise; there should be appropriate denunciation and recognition of harm, both to the community and to the victim.  Bringing all of those factors together, I am satisfied that an alternative to serving her sentence in custody is the appropriate course.

Victim Impact Statement

44. I should finally add that I have had access to the victim impact statement, and what was experienced by this young woman should not have been suffered by anyone.  The statement is very brief, and it was not read in Court, but it was tendered as part of the Crown material.  She is a single mother with two children, separated for some four years.  She has her own business, or had her own business more correctly, that she had to sell as a consequence of the stress that followed the event and the injuries that she endured.  She works minimally, she has had to take on a different lifestyle due to the impact of that night, before this event she was financially stable but now it is a daily struggle to get by because of the fact that the event and consequence of it, and her inability to continue in what appears to have been her successful business.  She still struggles with depression, anxiety, and flashbacks, and no doubt as the offender realises having had her own such experience there is a continuing sequelae from events such as this with injuries as extensive as this young woman suffered.

45. I have taken into account that the victim has had the opportunity for the Court to consider how this event impacted upon her.  I do not take the material in aggravation of the sentence or the conduct upon which the offender engaged, but it gives insight into the event and the damage that it has caused.  There is no evidence before me of any ongoing treatment or any injury physical or psychological, beyond that which might have been expected in such an event with the use of these weapons by the other two perpetrators.

Sentence

46. Ms Khouchaba you are convicted of this offence; I have allowed you a discount of 20% which I have applied to all of the circumstances before me both objective and subjective including your contrition and remorse, which I accept, and your prospects of rehabilitation which I accept.  After coming to the appropriate sentence, applying a discount of 20% the result has come down a little below that providing a sentence of 1 year and 10 months, which is the appropriate sentence in this case, bearing in mind the principle of parity that must also be brought to bear in light of what occurred with El Hassan.

47. I note that El Hassan's punishment includes home detention.  During the term of the intensive corrections order I will not impose such a condition on you and to that extent your sentence is to be of less significance.

48. I sentence you to a term of imprisonment of 1 year and 10 months.  I have the benefit of the sentence assessment report, and I other material, and thus I do not find it necessary to have you referred for any further assessment to assist in determining what options should be taken in this case including a sentence to be served by way of an intensive corrections in the community.

49. I have had regard to the terms of s 66 Crimes (Sentencing Procedure) Act 1999 and the paramount consideration of community safety when deciding whether to make an intensive corrections order in relation to you. I am satisfied that the making of this order is more likely to address the low risk of reoffending which I find in your case.

50. There are standard conditions to attach to the intensive corrections order, these are set forth in s 73 Crimes (Sentencing Procedure) Act, they are that you must not commit an offence, and you must submit to the supervision of a Community Corrections officer. I must impose an additional condition under s 73A Crimes (Sentencing Procedure) Act, and it would seem to me that in the circumstances in this case community service of 150 hours would be appropriate to meet what is required.  The sentence shall commence today, and you are to report to the Liverpool Community Corrections Office no later than Wednesday of next week, that will be on 26 June 2019.  By then the orders that I have made will be transmitted to them and they will give you whatever instructions are required for the implementation of the order.

51. Understand this; if you breach this you will not come back to Court you will go before the parole board.  I can assure you that they will put you in gaol.  I see it happening now more frequently, I must say, so good luck for the future.

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Decision last updated: 22 July 2019