R v Khudadadi

[2020] NSWDC 563

District Court

New South Wales

Medium Neutral Citation:

R v Khudadadi [2020] NSWDC 563

Hearing dates:

12 - 15 November 2019

Date of orders:

11 June 2020

Decision date:

11 June 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose sentence of 3 years imprisonment and a non-parole period of 2 years imprisonment

Catchwords:

CRIME — Violent offences — Wound with intent to cause grievous bodily harm

SENTENCING — Aggravating factors — Home of victim or any other person

Legislation Cited:

Crimes Act 1900 (NSW), s 33

Crimes (Sentencing and Procedure) Act 1999 (NSW) s 21A, s 3A

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mr Amir Khudadadi (Offender)

Representation:

Counsel:
Mr A Hallas (Offender)

Solicitors:
Mr A Kemp (Crown)

File Number(s):

2017/338529

Publication restriction:

Nil

SENTENCE

Introduction

1. HIS HONOUR: The offender was found guilty after trial by a jury of an offence that on 8 November 2017 at South Wentworthville, he wounded Saed Hussani with intent to cause grievous bodily harm to him. That is an offence under s 33 subs(1)(a) of the Crimes Act and has a maximum penalty of 25 years imprisonment with an applicable standard non-parole period of seven years.

The Facts

2. These are sentence proceedings after trial and I am required to find the facts consistent with the jury’s verdict. To the extent that I find a fact adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt.

3. The jury’s verdict of guilty is consistent with the jury’s acceptance of the account given by the victim of the events that occurred between the victim and the offender on 8 November 2017. The offender, Mr Moktar the victim and Mr Akbari and a fourth man were sharing accommodation in a house in Berkeley Street, South Wentworthville.

4. On 8 November 2017, the victim had travelled to and from work with Mr Akbari. At about 6pm, they returned home. The victim made his way inside the house while Mr Akbari remained in the car and called his family on the phone. When the victim went into the kitchen area, he encountered the accused. Soon afterwards, an argument developed between them which developed into a fight. During the fight, punches were thrown by both men and the victim’s glasses were broken.

5. As a result of the fight, various items in the kitchen area were also broken. The fight did not last long, the victim retreated to his bedroom at the back of the house; the victim closed the bedroom door behind him and sat on a corner of the bed. About two minutes later, the victim heard the offender yell “I’m going to kill you”. At the same time, the offender burst into the bedroom with a large black handled kitchen knife. The offender then attacked the victim by attempting to stab him in the chest with the knife. The victim was able to grab the blade of the knife with his hand and stopped it from entering his chest. The knife made a small laceration to the victim’s chest.

6. A struggle ensued in the bedroom during which the offender again said he was going to kill the victim. At some stage during the struggle, while the victim was holding the blade of the knife, the victim’s hand was cut. The victim then ran from the bedroom door and as he did, the offender hit him on the head with the butt of the knife. The victim ran out the back door of the house leaving a trail of blood behind.

7. Once outside, the victim called triple 0 and immediately complained that the offender had attacked him and that his hand had been cut. That call was made at 6.17pm. The offender then hid the black handled knife along with another knife in the back of a cupboard in the kitchen.

8. At 6.21pm, the offender called triple 0, told the operator that he had been in a fight with the victim. It is apparent that the offender had limited English at that time but he does tell the operator that there was no weapon or knife involved and nobody was hurt.

9. At 6.21pm, the police arrived on the scene and observed the victim and Mr Akbari at the front of the house. They also observed an injury to the victim’s hand and the victim made a complaint to one of the officers about being attacked by the offender. The offender came out of the house and was arrested by the police. He assisted police in locating the black handled knife. Shortly afterwards, ambulance officers took the victim to Westmead Hospital. He was reviewed there by the plastic surgery team and underwent operative exploration and repair of a right hand wound on 10 November 2017.

10. During the operation, the doctors noted a laceration extending over the palm of one of the victim’s hands in a semi-circular pattern extending through the two layers of the skin and superficially into the underlying muscles of the palm. The nerves and tendons were not damaged. The wound was washed with saline solution. The muscles did not require repair and the skin was closed with stitches and a dressing applied. The victim was discharged from hospital on 13 November 2017.

11. The offender in his record of interview with the police on 8 November 2017 gave an account of the incident in which the offence occurred. That account involved the victim taking a knife to his room along with the offender and attacking the offender in the room with the knife. The offender’s account was essentially, that the wound to the victim occurred while the offender was disarming the victim. Clearly, by the jury’s guilty verdict, they were satisfied beyond reasonable doubt that the offender’s version should be rejected.

Objective Seriousness

12. I turn then to my assessment of the objective seriousness of the offence. The offence was essentially, spontaneous with little to no planning. There had clearly been some animosity between the offender and the victim a short time before the commission of the offence. A weapon being a kitchen knife was used. The level of violence was significant. The injuries were fortunately not life-threatening but the victim was required to undergo surgery. The nerves and tendons of the victim’s hand were not damaged and the muscles did not require repair.

13. I note that while an assessment of the extent of injury is an important matter in determining the objective seriousness of this type of offence, it is not the only relevant matter to have regard to.

14. In terms of the objective aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act, I note the offence was committed in the victim’s home, a place where he was entitled to feel safe. I have taken that into account in my assessment of the objective seriousness of the offence.

15. The Crown in its submissions submitted that the aggravating factor that the offence involved a grave risk of death was present here. I do not consider it is given the nature of the wound that was inflicted.

16. Overall, I consider that the objective seriousness of this offence falls a little below a notional mid-range offence.

The Offender’s Subjective Case

17. I turn then to the offender’s subjective case. His date of birth is 17 March 1981 so he is currently 39 years of age. The offender has no criminal history and that entitles him to leniency in this sentence. There is a sentencing assessment report dated 4 December 2019. There has been some delay in this sentence due to attempts by the offender to obtain a psychological or psychiatric report and due to the Covid-19 pandemic. The offender also gave evidence on sentence.

18. In terms of his family background, the sentencing assessment report records that he arrived in Australia four years ago as an asylum seeker from Afghanistan. His wife and children remain in his homeland and he has limited family support in Australia.

19. In his evidence, the offender detailed the difficult circumstances in which he came to come to Australia. He is an Husary and a Shiite Muslim and it is well-known the difficulties that such persons have experienced in Afghanistan. He managed to come to Australia by boat, sailing from Indonesia, arriving in Christmas Island. The difficulties faced by persons fleeing Afghanistan to seek refugee status in Australia are well-known.

20. He gave evidence which I accept, that he speaks with his wife and children on the phone almost every day. The only relative he has in Australia is his brother-in-law who lives in Sydney.

21. In terms of his education and employment, the sentencing assessment report records and he confirmed this in his evidence, that he received no formal schooling and he has limited literacy skills. The sentencing assessment report records that he has maintained employment as a renderer since arriving in Australia and his employment was terminated because of the offence. He confirmed in his evidence that he has, when able to, worked while he has been in this country.

22. The offender gave evidence that he commenced taking the drug Zoloft for anxiety and stress some time after the offence was committed to deal with the stress of being away from his family and legal proceedings surrounding the charge.

23. In terms of the offender’s attitude to the offence, the sentencing assessment report records that he appears to minimise the severity of his aggression and attempted to place blame on the victim. The sentencing assessment report also records that the offender appears to hold little to no insight into the impact of his offending on the victim or the wider community.    The offender confirmed in his evidence that he maintains his innocence. He is not to be penalised for doing so but it does mean there is no evidence of remorse.

24. The sentencing assessment report does record that the offender is currently attempting to address his anger management issues through regular psychological counselling although the offender said in his evidence, this was not correct and was a result of a misunderstanding by the report writer.

25. The offender was assessed in the sentencing assessment report as having a medium to low risk of re-offending. Given his lack of a criminal record and his history of employment, he has good prospects for rehabilitation in my opinion. His prospects of rehabilitation will be assisted if he has a longer period on parole.

Imposition of sentence

26. I also have considered his lack of a criminal record, the fact he has little support in the community, the fact the sentence will be harder for him because of the reduced phone contact he will have with his wife and children in making a finding of special circumstances when fixing the non-parole period.

27. I have had regard to the objectives of sentencing in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and rehabilitation of the offender.

28. Offences of this type are always serious offences. That is reflected in the intent which needs to be proved in order to make out the offence as well as the maximum penalty that the Parliament has provided for. People must be able to go about their lives without fear of being attacked by someone wielding a knife with an intent to cause them grievous bodily harm.

29. Given the serious nature of the offence and the lack of any remorse, a sentence of imprisonment must be imposed. The maximum penalty and the standard non-parole period have been taken into account as legislative guideposts. It will be seen I have departed from the standard non-parole period due to my assessment of the objective seriousness and my finding of special circumstances.

30. I was asked to consider imposing a sentence by way of an intensive correction order. To do so, I would have to conclude that the appropriate sentence is one of two years or less. I am of the view that the sentence must be for a longer period of time. So that sentencing option is simply not available.

31. You are convicted of the offence of wounding with intent to cause grievous bodily harm. I impose a sentence consisting of a non-parole period of two years imprisonment and a balance of term of one year. That is a total sentence of three years imprisonment. It commences today, 11 June 2020 and expires on 10 June 2023. The non-parole period expires on 10 June 2022. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 10 June 2022.

32. Whether you are, in fact, released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you should be released on that date.

Orders

1. Impose sentence of 3 years imprisonment and a non-parole period of 2 years imprisonment.

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Decision last updated: 25 September 2020