R v Khouzame

Case [2000] NSWCCA 505

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:         REGINA v. KHOUZAME [2000]  NSWCCA 505

FILE NUMBER(S):
No. 60566 of 1999

HEARING DATE(S):          Thursday 14 September 2000

JUDGMENT DATE:           06/12/2000

PARTIES:
REGINA v.
KHOUZAME, Adonis

JUDGMENT OF: Priestley JA Greg James J Kirby J   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):               70021 of 1998

LOWER COURT JUDICIAL OFFICER:          Grove, J.

COUNSEL:
Crown:  W.G. Dawe, QC.
App:  S.R. Norrish, QC.

SOLICITORS:
Crown:  S.E. O'Connor
App:  Brenda Duchen

CATCHWORDS:
Criminal law - sentence - appeal - Court of Criminal Appeal - appeal by way of rehearing or for error - fact finding - approach on appeal to discretionary judgment below - principle in House v. The King applicable to appeals under ss.5 and 6 of the Criminal Appeal Act 1912.

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Code (WA)

DECISION:
Leave to appeal granted;  appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

No. 60566 of 1999

CORAM:              PRIESTLEY, JA.

GREG JAMES, J.
  KIRBY, J.

WEDNESDAY 6 DECEMBER 2000

REGINA v. ADONIS KHOUZAME

JUDGMENT

  1. PRIESTLEY, JA:  I agree with Greg James, J.

  2. GREG JAMES, J:  The applicant seeks leave to appeal against a sentence of five years imprisonment comprising three years minimum term, with an additional term of two years and against another sentence of three months fixed term, both imposed upon him in the Supreme Court of New South Wales by Grove, J.

  3. The first sentence was imposed upon him in respect of his conviction on one count of manslaughter and the second in respect of his conviction for assault occasioning actual bodily harm.

  4. The maximum penalty for manslaughter is 25 years imprisonment.  The maximum penalty on the assault charge is five years imprisonment.

  5. The applicant had been in custody for about a month prior to having been released on bail prior to his trial.

  6. He had originally been charged with murder and the verdict of not guilty of murder but guilty of manslaughter led to the imposition of the first sentence to which I have referred.

  7. The learned trial judge gave extensive reasons for the sentences he imposed.  On the first count, he found the facts to be that the applicant killed the victim by striking him on the head with a substantial piece of wood which had apparently been used as a garden stake and on the second count that thereafter the applicant and certain of his relatives attacked another man occasioning him injuries, including a bloody and swollen face and bruising on his arm and back.

  8. These events occurred after some young boys of Turkish ethnicity had chatted to some girls in the vicinity of the applicant's home.  Another young boy apparently took objection to his sister conversing with those boys.  His report of what was going on attracted the applicant to the front balcony of the upper storey of his house and an exchange of verbal abuse occurred.  The applicant demanded in forceful terms that the boys leave the area.

  9. When the applicant perceived that the…

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R v Khouzame [2000] NSWCCA 505
Case
[2000] NSWCCA 505
Decision Date

CaseChat Overview and Summary

The case of R v Khouzame was an appeal by the defendant against his sentence, heard by the Court of Criminal Appeal of New South Wales. The defendant, Khouzame, had been convicted and sentenced for criminal offences, and the appeal focused on the legality and appropriateness of the sentence imposed. The central legal issues addressed in the appeal were the interpretation and application of the relevant statutory provisions governing the appeal process and the principles that should guide the appellate court in reviewing a discretionary sentencing decision.

The Court of Criminal Appeal considered the statutory framework provided by the Criminal Appeal Act 1912, specifically sections 5 and 6, which pertain to appeals by way of rehearing or for error. The court examined the nature of the appeal and the appropriate standard of review for discretionary sentencing decisions. The court acknowledged the principle in House v. The King, which sets out the approach appellate courts should take when reviewing discretionary decisions, emphasizing caution and restraint in the reconsideration of such decisions. The court also referred to the decision in Coal & Allied Operations Pty. Limited v. Australian Industrial Relations Commission, which highlighted the importance of examining the specific statutory language and context to determine the appellate function.

In its judgment, the Court of Criminal Appeal concluded that the appeal was by way of rehearing, allowing for a fresh consideration of the sentencing decision based on the same evidence and submissions that were available to the trial judge. The court applied the principle of restraint in reviewing the discretionary sentencing decision, acknowledging the wide discretion of the original sentencing judge and the policy reasons for limiting appellate intervention in such matters. The court found that the sentence imposed was within the lawful range and did not constitute an error of law or an unacceptable departure from the principles of sentencing.

The final orders of the Court of Criminal Appeal were to dismiss the appeal and affirm the sentence imposed by the trial court. The court's decision underscored the importance of a careful examination of the statutory provisions and the principles of appellate review in criminal sentencing cases.

Orders

Orders of the court

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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

Our attention was drawn to Coal & Allied Operations Pty. Limited v. Australian Industrial Relations Commission [2000] HCA 47 in the judgment of Gleeson, CJ., Gaudron and Hayne, JJ. (at para.68):-"Appeal, as such, was unknown to the common law. It is a creature of statute. It is not possible to adopt any hard and fast or universal approach to the process called 'appeal' in a particular statute. The word encompasses 'different litigious processes which have few unifying characteristics'. No fewer than six forms of a procedure loosely called an 'appeal' have been identified. Within these broad categories are various subcategories reflecting the particular nature of the 'appeal' in question, the issues which the appeal presents and the purpose for which it exists, derived from the language in which it is expressed.In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies.The range and variety of the decisions that may, with leave, be the subject of an appeal under the Act (under s.45(1) of the Act) is such as to suggest that generalities will be dangerous. So different are the various decisions amenable to appeal that it will only be of limited help to catalogue the process within the broad class of an 'appeal in the strict sense' or an 'appeal by way of re-hearing', as if, without more, such classification dictates the way in which the particular appeal must be approached. True, such broad categories will offer a limited measure of guidance. But it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play.It is necessary to make this point because some of the discussion of the nature of the appeal to the Full Bench of the Commission, both within the Commission and in the reasons of the Full Court, might, on a superficial reading, be taken to suggest that there is a particular classification of appeals generally, being 'appeals against discretionary decisions', which is in some way to be distinguished from 'appeals by way of re-hearing'. This is a false dichotomy. Many appeals by way of re-hearing involve appeals from discretionary decisions. The re-hearing identifies the materials upon which the appellate body acts. It will have relevance for any supervening changes in the facts or in the applicable law.On the other hand, the character of the decision under appeal (as discretionary, interlocutory, final or otherwise) will govern the approach to be taken by the appellate body in discharging its function. In the case of discretionary decisions, that approach in the case of an appeal is one of caution and restraint. This is because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions. It is rare that there will be only one admissible point of view. Disputation and litigation are expensive, distracting and time-consuming. Therefore, the law, for policy reasons, recognises these features of discretionary decisions. Except in appeals involving a complete hearing de novo, all other appeals will approach with restraint the reconsideration of discretionary decisions which are based on the same material that was before the primary decision-maker.Because of the necessity to ascertain the ambit of the appellate function in a particular case by reference to the legislation in question, it is obviously useful where the task of classification has already occurred to accept the guidance of a previous decision."