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R v Khoury

R v Khoury

Case [2018] NSWCCA 223 15 October 2018

Criminal Liability

Sentencing

General and Specific Deterrence

Rehabilitation

Criminal Law

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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

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.

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…

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 Khoury

Details

AGLC: R v Khoury [2018] NSWCCA 223
Case: [2018] NSWCCA 223
Decision Date: 15 October 2018

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.

Orders