R v Khoury

Case [2018] NSWCCA 223


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Khoury [2018] NSWCCA 223
Hearing dates: 31 August 2018
Date of orders: 15 October 2018
Decision date: 15 October 2018
Before: Hoeben CJ at CL at [1];
Walton J at [62];
Button J at [63]
Decision:

Crown appeal dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against inadequacy of sentence – damage property by fire intending to injure persons and aggravated attempted break and enter with intent to intimidate – offender set fire to door of victim’s unit – offender’s child one of the persons in the unit – potential for catastrophic consequences – offender suffering from substance abuse issues and psychological deficits – offender sentenced to 2 year ICO and 1 year suspended sentence – whether proper regard had to general and specific deterrence – whether too much weight given to offender’s prospects of rehabilitation – offender remanded so as to allow rehabilitation to take place – at no time did Crown oppose the making of an ICO – although sentence manifestly inadequate Crown bound by way in which it conducted the sentence proceedings – application of residual discretion – Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 113(2), 196(1)(b)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 11, 12
Criminal Appeal Act 1912 (NSW) – s 5D(1)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346
Griffiths v R [1977] HCA 44; 137 CLR 293
Patsan v R [2018] NSWCCA 129
R v Farrell [2014] NSWCCA 30
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Harris [2015] NSWCCA 81
R v Hopoi [2014] NSWCCA 263
R v JRD [2007] NSWCCA 55
R v Merillo [2017] NSWCCA 173
R v Porte [2015] NSWCCA 174
Yucebasoglu v R [2015] NSWCCA 226
Category:Principal judgment
Parties: Regina – Applicant Crown
Mark Khoury – Respondent
Representation:

Counsel:
B Hatfield – Applicant Crown
D Dalton SC – Respondent

  Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
John B Hajje & Associates – Respondent
File Number(s): 2015/219603
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
8 June 2018
Before:
Conlon SC ADCJ
File Number(s):
2015/219603

JUDGMENT

  1. HOEBEN CJ at CL:

Offences and sentence

The respondent was committed for trial from the Local Court on 16 November 2016 for a number of domestic violence related offences. The trial was listed to commence in the District Court on 11 September 2017 before his Honour Acting Judge Conlon SC. The commencement of the trial was adjourned to allow discussions between the parties and to reduce issues.

  1. On 15 September 2017, a fresh indictment was presented and the respondent entered pleas of guilty to the following offences:

Count 1 – Damage property by fire intending to injure persons…

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AGLC
R v Khoury [2018] NSWCCA 223
Case
[2018] NSWCCA 223
Decision Date

CaseChat Overview and Summary

In R v Khoury, the defendant was convicted of damaging property by fire with intent to injure persons and aggravated attempted break and enter with intent to intimidate. Khoury set fire to the door of a unit where his child was present, creating a potential for catastrophic consequences. The trial judge sentenced Khoury to a two-year intensive correction order (ICO) and a one-year suspended sentence, taking into account Khoury's substance abuse issues and psychological deficits. The Crown appealed, arguing the sentence was inadequate, particularly in terms of general and specific deterrence, and that too much weight was given to Khoury's prospects of rehabilitation.

The court examined whether the trial judge properly considered the principles of general and specific deterrence and whether the sentence was adequate in those respects. The court also considered if the trial judge appropriately balanced the need for rehabilitation against the requirements of deterrence. The Crown had not opposed the making of an ICO and had not contested the sentence at the time it was imposed. The court found that the Crown was bound by the way the sentence proceedings were conducted and that the application of residual discretion was appropriate under the circumstances.

Ultimately, the court dismissed the Crown's appeal. It held that, despite the sentence being manifestly inadequate, the Crown was estopped from appealing due to its conduct during the sentencing process. The court found no grounds to interfere with the sentence, and the Crown's appeal was dismissed.

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