R v Khouri - [2024] NSWDC 581

District Court

New South Wales

Medium Neutral Citation: R v Khouri [2024] NSWDC 581
Hearing dates: 22 March 2024
Date of orders: 4 April 2024
Decision date: 04 April 2024
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
1. Offender is convicted.
2. Offender sentenced to a term of imprisonment of 6 years with a NPP of 3 years.

Catchwords:
CRIME – sentence – s61I Crimes Act – maximum penalty 14 years imprisonment – 10 day jury trial – aggravated sexual intercourse without consent – serious physical disability – found guilty of statutory alternative
OFFENCE – historical sexual offence – 1998 – victim from New Zealand – lived in Australia for 3 months – walking home in the afternoon – pulled into car by offender – victim and offender strangers – victim froze – offender dragged victim to a bush and pinned her to ground – penile vaginal sexual intercourse for less than 10 minutes – ejaculated inside her – offender ran to parked car and drove off – no positive case mounted on offender’s behalf
COMPLAINT – victim immediately attended Auburn Hospital on foot – SAIK completed – semen and sperm present – no match at the time – victim never made formal police statement before returning to New Zealand – offender gave buccal sample to police for an unrelated matter in October 2020 – DNA matched swab taken in November 1998
OBJECTIVE SERIOUSNESS – slightly above middle range – brazen and spontaneous – minor and transient injuries – victim born without left hand and part of forearm – reject Crown submission that offending aggravated by victim’s physical injury – victim gave evidence that she lived life to the full despite her disability – impressive witness who did not seek to embellish – did not accept she was a vulnerable witness
SUBJECTIVE CASE – now 45 – married for 19 years with 5 children – constant work history – no criminal convictions at the time – subsequent offending including animal cruelty offences – acknowledged victim’s trauma – depression and post-traumatic stress symptoms following incarceration – concerned about his family
SENTENCE – rehabilitation – general deterrence – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW): ss 61I, 61J
Crimes (High Risk Offenders) Act 2006 (NSW): s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 21B, 47
Prevention of Cruelty to Animals Act 1979 (NSW)

Cases Cited:
R v Coleman [2019] NSWDC 285

Category: Sentence
Parties: Rex (Crown)
Rizik Khouri (Offender)
Representation:
Counsel:
M Franklin (Crown)
B Clark (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Tsolakis Solicitors (Offender)

File Number(s): 2021/00346079
Publication restriction: There is to be no publication of any details that might identify or tend to identify the victim.

Judgment

The offender, Rizik Khouri is before the Court for sentence on one charge contrary to s 61I of the Crimes Act 1900 (NSW), namely that on 26 November 1998 at Lidcombe or Auburn, he had sexual intercourse with the named victim, without her consent, knowing that…

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 Khouri

Details

AGLC: R v Khouri [2024] NSWDC 581
Case: [2024] NSWDC 581
Decision Date: 04 April 2024

CaseChat Overview and Summary

The defendant in the case, Khouri, was convicted and sentenced by the court for a historical sexual offence committed in 1998 against a New Zealand woman who was living in Australia at the time. The woman, who had a serious physical disability, was attacked while walking home and was subjected to aggravated sexual intercourse without consent. The case was tried over a 10-day jury trial and the defendant was found guilty of the statutory alternative to the charge. The court was tasked with considering the appropriate sentence for the offence, taking into account the maximum penalty of 14 years imprisonment under section 61I of the Crimes Act.

The legal issues before the court included the objective seriousness of the offence, the subjective circumstances of the offender, and the principles of rehabilitation and deterrence in sentencing. The court considered the brazen and spontaneous nature of the attack, the minor and transient injuries inflicted on the victim, and the victim's physical disability. The court rejected the Crown's submission that the offence was aggravated by the victim's physical injury, noting that the victim had lived a full life despite her disability and did not seek to embellish her evidence. The court also considered the subjective circumstances of the offender, including his clean criminal record at the time of the offence, his subsequent offending, and his acknowledgment of the victim's trauma.

The court ultimately sentenced the offender to a term of imprisonment of 6 years, with a non-parole period of 3 years. The court found that the objective seriousness of the offence was slightly above the middle range, but was mitigated by the fact that the offender had no previous criminal convictions and had shown remorse for his actions. The court also noted the offender's concern for his family and his depression and post-traumatic stress symptoms following his incarceration. The court considered the principles of rehabilitation and deterrence in sentencing, and ultimately determined that a sentence of 6 years with a non-parole period of 3 years was appropriate.

The court's orders included a conviction for the defendant and a sentence of imprisonment of 6 years with a non-parole period of 3 years. The court emphasised the importance of rehabilitation and deterrence in sentencing, and considered the objective seriousness of the offence, the subjective circumstances of the offender, and the principles of sentencing in reaching its decision. The court also noted the victim's impressive evidence and her ability to live a full life despite her disability.

Orders

Orders of the court

1. Offender is convicted.

2. Offender sentenced to a term of imprisonment of 6 years with a NPP of 3 years.

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 Khouri [2024] NSWDC 581
Hearing dates:	22 March 2024
Date of orders:	4 April 2024
Decision date:	04 April 2024
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	1. Offender is convicted. 2. Offender sentenced to a term of imprisonment of 6 years with a NPP of 3 years.
Catchwords:	CRIME – sentence – s61I Crimes Act – maximum penalty 14 years imprisonment – 10 day jury trial – aggravated sexual intercourse without consent – serious physical disability – found guilty of statutory alternative OFFENCE – historical sexual offence – 1998 – victim from New Zealand – lived in Australia for 3 months – walking home in the afternoon – pulled into car by offender – victim and offender strangers – victim froze – offender dragged victim to a bush and pinned her to ground – penile vaginal sexual intercourse for less than 10 minutes – ejaculated inside her – offender ran to parked car and drove off – no positive case mounted on offender’s behalf COMPLAINT – victim immediately attended Auburn Hospital on foot – SAIK completed – semen and sperm present – no match at the time – victim never made formal police statement before returning to New Zealand – offender gave buccal sample to police for an unrelated matter in October 2020 – DNA matched swab taken in November 1998 OBJECTIVE SERIOUSNESS – slightly above middle range – brazen and spontaneous – minor and transient injuries – victim born without left hand and part of forearm – reject Crown submission that offending aggravated by victim’s physical injury – victim gave evidence that she lived life to the full despite her disability – impressive witness who did not seek to embellish – did not accept she was a vulnerable witness SUBJECTIVE CASE – now 45 – married for 19 years with 5 children – constant work history – no criminal convictions at the time – subsequent offending including animal cruelty offences – acknowledged victim’s trauma – depression and post-traumatic stress symptoms following incarceration – concerned about his family SENTENCE – rehabilitation – general deterrence – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW): ss 61I, 61J Crimes (High Risk Offenders) Act 2006 (NSW): s 25C Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A, 21B, 47 Prevention of Cruelty to Animals Act 1979 (NSW)
Cases Cited:	R v Coleman [2019] NSWDC 285
Category:	Sentence
Parties:	Rex (Crown) Rizik Khouri (Offender)
Representation:	Counsel: M Franklin (Crown) B Clark (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Tsolakis Solicitors (Offender)
File Number(s):	2021/00346079
Publication restriction:	There is to be no publication of any details that might identify or tend to identify the victim.