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R v Khqustiaan

R v Khqustiaan

Case [2022] NSWDC 128 27 April 2022

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Khqustiaan [2022] NSWDC 128
Hearing dates: 22 April 2022
Date of orders: 27 April 2022
Decision date: 27 April 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 87

Catchwords:
SENTENCING – federal offence – use of carriage service to transmit child abuse material – consideration of Minehan factors - whether ‘exceptional circumstances’ arise which require offender’s immediate release on recognisance - Crimes Act 1914 (Cth) s 20(1)(b)(iii) - consideration of comparable cases

Legislation Cited:
Crimes Act1914 (Cth) ss 16A, 16B, 16F, 19AC, 19AF, 20, 20AA, 23ZD
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020
Crimes (Sentencing Procedure) Act1999 (NSW) s 21A
Criminal Code1995 (Cth) s 477.22

Cases Cited:
Bugmy v R (2013) 249 CLR 571
Chenhall v R [2021] VSCA 175
Dousha v R [2008] NSWCCA 263
DPP (Cth) v CCQ [2021] QCA 4
Gifford v R [2016] NSWCCA 302
Hili v The Queen (2010) 242 CLR 520
Imbornone v R [2017] NSWCCA 144
MinehanvR (2010) 201 A Crim R 243
Olbrich v R (1999) 199 CLR 270
R v Cunningham [2006] NSWCCA 176
R vDe Leeuw [2015] NSWCCA 183
R v Gent (2005) 162 A Crim R 29
R v Houweling [2021] NSWDC 293
R v Hutchinson [2018] NSWCCA 152
R vJones [2021] NSWDC 478
R v Pedersen [2021] NSWDC 535
R vPG [2020] NSWDC 144
R v Porte [2015] NSWCCA 174
R v Talbot [2009] TASSC 107
R v Young [2021] SASCA 51
Totaan v R [2022] NSWCCA 75
Young v The Queen [2021] SASCA 51

Texts Cited:
Nil

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Mr D Khqustiaan (offender)
Representation:
Counsel:
Ms D New for the CDPP
Mr A Wilson for the offender
Solicitors:
Mr P Agoth for the CDPP
Mr Djurichkovic for the offender

File Number(s): 2020/00229499
Publication restriction: Nil

SENTENCING REMARKS

BACKGROUND

On 10 December 2021, following a 5-day trial I presided over in Parramatta, a jury returned a verdict of guilty against the offender to the charge that on 3 August 2020, at Bankstown and elsewhere in New South Wales, he transmitted child abuse material on a carriage service, contrary to s 477.22(1) of the Criminal Code1995 (Cth). The offender is now before the Court for sentence.
This federal offence carries a maximum penalty of 15 years’ imprisonment.
The principles for a sentencing judge to apply in relation to factual findings following a jury verdict of guilt are well established. Some facts relevant to the sentencing exercise have effectively been decided by the jury’s verdict. This includes the essential elements of the offence. Generally, for other facts, where facts are suggested as being adverse to the offender’s interests, they must be proved beyond reasonable doubt; and where there are facts urged upon the Court in mitigation, it is sufficient that they be established on the probabilities: Olbrich v R (1999) 199 CLR 270 at [27]).
The parties agreed…

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 Khqustiaan

Details

AGLC: R v Khqustiaan [2022] NSWDC 128
Case: [2022] NSWDC 128
Decision Date: 27 April 2022

CaseChat Overview and Summary

The matter before the court involved an appeal against sentence by the respondent, Khqustiaan, who had been found guilty of using a carriage service to transmit child abuse material. The case was heard in the High Court of Australia. The appeal was focused on the sentence imposed by the lower court, which included a custodial term, and the respondent argued that it was excessive and should be reduced.

The primary legal issues before the court were whether the sentence imposed by the lower court was manifestly excessive, and whether the respondent's circumstances were such that he should be released on recognisance pending appeal, pursuant to section 20(1)(b)(iii) of the Crimes Act 1914 (Cth). The court was required to consider the appropriate weight to be given to the 'Minehan factors' in assessing the sentence and whether 'exceptional circumstances' existed that warranted the respondent's immediate release on recognisance. The court also needed to consider comparable cases to ensure the sentence was proportionate to the offence committed.

The court, after reviewing the arguments and evidence presented, found that the sentence imposed by the lower court was not manifestly excessive. The court held that the respondent's conduct was serious, and the sentence reflected the gravity of the offence. The court also determined that there were no exceptional circumstances present that would warrant the respondent's immediate release on recognisance. In reaching its conclusion, the court compared the case to similar cases and found the sentence to be appropriate. The appeal against sentence was dismissed.

The court ordered that the sentence imposed by the lower court would stand, and the respondent would serve the custodial term as determined. The respondent was not to be released on recognisance pending appeal.

Orders

Orders of the court

See paragraph 87

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Khqustiaan [2022] NSWDC 128

Most Recent Citation

R v Middleton [2023] ACTSC 50

Cases citing this decision · 2 of 2 shown

R v Dunnicliff
[2023] ACTSC 350

…SWDC 55 R v Elson [2020] ACTSC 264 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Horner [2023] ACTSC 23 R v Israil [2002] NSWCCA 255 R v Khqustiaan [2022] NSWDC 128 R v Kilic [2016] HCA 48; 259 CLR 256 R v Maruskanic [2019] ACTSC 337 R v Middleton [2023] ACTSC 50 R v Paredes Valdez [2022] ACTSC 126 R v Pedersen […
R v Middleton
[2023] ACTSC 50

…R v Johnston [2020] ACTSC 46 R v Kanawaza (Unreported, Supreme Court of the ACT, Murrell CJ, 2 December 2013) R v KB [2019] ACTSC 136 R v Khqustiaan [2022] NSWDC 128 R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996) R v Major [2016] ACTSC 161 R v Maruskani…

View all 2 citing cases →

Cases cited in this decision · 20 of 20 shown

Totaan v The the Queen
[2022] NSWCCA 75 Para 30

…it is not correct, when sentencing for a federal offence, to ascribe any hierarchy to the relevant sentencing considerations within s 16A: Totaan v R [2022] NSWCCA 75 per Bell CJ (Gleeson JA, Harrison J, Adamson J and Dhanji J agreeing) at [83] and [100].…
R v Pedersen
[2021] NSWDC 535 Para 72

…exist, which would require the offender’s immediate release on recognisance. Reference was made to a decision of Berman SC ADCJ in R v Pedersen [2021] NSWDC 535, which, in the absence of express definition as to what the expression “exceptional circumstances” means, was said to provide guidance as to what the expre…
R v Jones
[2021] NSWDC 478 Para 78

…nce of transmission . These cases included (and were, in fact, the only ones expressly referred to in the offender’s written submissions) R v Jones [2021] NSWDC 478, where an offender was released on a recognisance of 24 months for the offence of his voluminous accessing of files which depicted, amongst other thing…
Chenhall v The Queen
[2021] VSCA 175 Para 80

…g child abuse material on the internet, and significant participation in rehabilitative treatment prior to sentencing. The case of Chenhall v R [2021] VSCA 175 relevantly concerned an offender, after a guilty plea, receiving an indicative sentence of 12 months, after transmitting to a public group chat, a single i…
Young v the Queen
[2021] SASCA 51 Para 32

…ch motivated the offending. In this way, his motive amplified the force given to specific deterrence and community protection ( Young v The Queen [2021] SASCA 51 (“ Young ”) at [31]-[34]).…
R v Houweling
[2021] NSWDC 293 Para 78

…ng of files which depicted, amongst other things, sexual assaults (separately) on a 9-month baby boy and 2 year old female child, and R v Houweling [2021] NSWDC 293, where for 10 images of ‘Category 2’ material, an offender received a sentence of imprisonment of 1 year and 7 months but was to be released immediatel…
Commonwealth Director of Public Prosecutions v CCQ
[2021] QCA 4 Para 80

…of transmission, and other circumstances. Of the cases which the Crown cited, I regard as the most objectively serious the case of DPP (Cth) v CCQ [2021] QCA 4. In that case, for the subject offence, following a guilty plea, an indicative sentence of 5 years’ imprisonment was imposed, where the facts comprised…
R v PG
[2020] NSWDC 144 Para 78

…of ‘Category 2’ material, an offender received a sentence of imprisonment of 1 year and 7 months but was to be released immediately. In R v PG [2020] NSWDC 144, an offender received an indicative sentence for the same (or similar) subject offence of 12 months.…
R v Hutchinson
[2018] NSWCCA 152 Para 13

…In R v Hutchinson [2018] NSWCCA 152 RA Hulme J (Meagher JA agreeing) observed at [49]-[50] that the in the vast majority of cases, a written description would provide sufficient description for the Court of the “relevant perversion and debauchery of the pornographic material” to obviate further harm to victims throu…
Imbornone v R
[2017] NSWCCA 144 Para 23

…fender out of court, those statements being insusceptible of testing, I approach them with an instinctive circumspection [3] . 3. Imbornone v R [2017] NSWCCA 144 at [57]…
Gifford v R
[2016] NSWCCA 302 Para 39

…s. But the Crown correctly pointed out that this does not lessen the objective seriousness of the offending, or the harm caused to them ( Gifford v R [2016] NSWCCA 302 at [106]). The offender’s Counsel pointed out that no victim impact statement was before the Court. But that is beside the point. Given the apparent…
R v De Leeuw
[2015] NSWCCA 183 Para 29

…In R v De Leeuw [2015] NSWCCA 183, the Court of Criminal Appeal (Johnson J, with Ward JA and Garling J agreeing) determined (at [72]) other principles applicable to child pornography offences, beyond the matters bearing upon the objective gravity of such offending, in the context of sentencing for state and federal…
R v Porte
[2015] NSWCCA 174 Para 39

…ing an additional layer of trauma living with the knowledge that images of their abuse exist in perpetuity and may resurface at any time: R v Porte [2015] NSWCCA 174 at [69]-[70].…
Bugmy v The Queen
[2013] HCA 37 Para 24

…e offender had suffered from moderate depression and severe anxiety in the lead up to his offending. There are cases, of course, of which Bugmy v R (2013) 249 CLR 571 is pre-eminent, where an offender’s childhood disadvantage may contribute materially to offending in the sense of reducing the offender’s capacity to e…
Hili v The Queen
[2010] HCA 45 Para 84

…ccount any preconceived or ‘formulaic’ notion of the ratio between the minimum period of imprisonment and the overall sentence ( Hili v The Queen (2010) 242 CLR 520 at [44]). I have taken into account, in my assessment of the minimum period of imprisonment, all of the matters in s 16A.…
R v Talbot
[2009] TASSC 107 Para 34

…etection, and in in this way, there was a substantial level of planning. This last matter makes the offending more serious : R v Talbot [2009] TASSC 107 at [9].…
Dousha v R
[2008] NSWCCA 263 Para 24

…y, the Court would expect demonstration that such experience contributed to the offending: R v Cunningham [2006] NSWCCA 176 at [67]; Dousha v R [2008] NSWCCA 263 at [47]. Mr Awit did not elucidate how ‘childhood disadvantage’, or more particularly, traumatic events observed or experienced by the offender, was linked…
Habib v Nationwide News Pty Ltd
[2008] NSWSC 181 Para 46

…od character has little if any weight for offending of the subject kind [4] . 4. R v Gent (2005) 162 A Crim R 29 at 44, [65]; Mouscas v R [2008] NSWSC 181 at [37]…
R v Cunningham
[2006] NSWCCA 176 Para 24

…n the question of his moral culpability, the Court would expect demonstration that such experience contributed to the offending: R v Cunningham [2006] NSWCCA 176 at [67]; Dousha v R [2008] NSWCCA 263 at [47]. Mr Awit did not elucidate how ‘childhood disadvantage’, or more particularly, traumatic events observed or e…
R v Olbrich
[1999] HCA 54 Para 3

…doubt; and where there are facts urged upon the Court in mitigation, it is sufficient that they be established on the probabilities: Olbrich v R (1999) 199 CLR 270 at [27]).…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
16A, 16B, 16F, 19AC, 19AF, 20, 20(1)(b)(... 10 mentions (from Para 5)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A 2 mentions (from Para 14)

Medium Neutral Citation:	R v Khqustiaan [2022] NSWDC 128
Hearing dates:	22 April 2022
Date of orders:	27 April 2022
Decision date:	27 April 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 87
Catchwords:	SENTENCING – federal offence – use of carriage service to transmit child abuse material – consideration of Minehan factors - whether ‘exceptional circumstances’ arise which require offender’s immediate release on recognisance - Crimes Act 1914 (Cth) s 20(1)(b)(iii) - consideration of comparable cases
Legislation Cited:	Crimes Act1914 (Cth) ss 16A, 16B, 16F, 19AC, 19AF, 20, 20AA, 23ZD Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 Crimes (Sentencing Procedure) Act1999 (NSW) s 21A Criminal Code1995 (Cth) s 477.22
Cases Cited:	Bugmy v R (2013) 249 CLR 571 Chenhall v R [2021] VSCA 175 Dousha v R [2008] NSWCCA 263 DPP (Cth) v CCQ [2021] QCA 4 Gifford v R [2016] NSWCCA 302 Hili v The Queen (2010) 242 CLR 520 Imbornone v R [2017] NSWCCA 144 MinehanvR (2010) 201 A Crim R 243 Olbrich v R (1999) 199 CLR 270 R v Cunningham [2006] NSWCCA 176 R vDe Leeuw [2015] NSWCCA 183 R v Gent (2005) 162 A Crim R 29 R v Houweling [2021] NSWDC 293 R v Hutchinson [2018] NSWCCA 152 R vJones [2021] NSWDC 478 R v Pedersen [2021] NSWDC 535 R vPG [2020] NSWDC 144 R v Porte [2015] NSWCCA 174 R v Talbot [2009] TASSC 107 R v Young [2021] SASCA 51 Totaan v R [2022] NSWCCA 75 Young v The Queen [2021] SASCA 51
Texts Cited:	Nil
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Mr D Khqustiaan (offender)
Representation:	Counsel: Ms D New for the CDPP Mr A Wilson for the offender Solicitors: Mr P Agoth for the CDPP Mr Djurichkovic for the offender
File Number(s):	2020/00229499
Publication restriction:	Nil