R v Khawaja [2020] NSWDC 718

District Court New South Wales

Medium Neutral Citation: R v Khawaja [2020] NSWDC 718 Hearing dates: 19 June 2020 (Sentence Hearing), 2 September 2020 (Notice of Motion), 11 September 2020 (Sentence Hearing) Date of orders: 5 November 2020 Decision date: 05 November 2020 Jurisdiction: Criminal Before: R. J. Weber SC DCJ Decision: (1) The offender is convicted of the offences which bring him before the Court. (2) The offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months. (3) The Court directs that such a term of imprisonment shall commence on 27 December 2018 and that the non-parole period shall expire on 26 June 2021, with the balance to expire on 26 June 2023. Catchwords: CRIME – Commonwealth Offences – act with intent to dishonestly influence a Commonwealth public official in the exercise of the official's duties as a Commonwealth public official – attempt to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power, being a judicial power of the Commonwealth – make a false document with the intention to use it to dishonestly induce a person in the person's capacity as a Commonwealth public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a public duty or function – act intending to induce a person to be called as a witness in a federal judicial proceeding to withhold true testimony – where the offender's deceptive and dishonest conduct caused the incarceration of an innocent man SENTENCING – Dishonestly influence offence – Objective seriousness – relevant considerations – nature of the Commonwealth function to be exercised by the person sought to be influenced – the manner in which the official is sought to be influenced and the seriousness of such intended influence – the way in which the offender acted in order to give effect to that intention – any benefit gained by the offender and any detriment caused to the Commonwealth and the community – offending was planned and not spontaneous – where the offender made a lengthy phone call to the Border Watch Hotline and made serious, detailed allegations purporting an innocent man was engaged with groups, espousing beliefs, and potentially preparing terrorist acts in accordance with extremist ideologies – where the recipient of the information was a conduit to persons in authority – where the allegations could have had serious consequences – where there was no adverse result to the man the object of the false allegations SENTENCING – Public justice offence – Objective seriousness – relevant considerations – the intended actions had a tendency to affect the course of justice – where the offence took place over an extended period of time and involved multiple interactions between the offender and police, at which the the offender purported to be assisting police – offending was planned and not spontaneous – where the offending continued the incarceration of an innocent man – where the offender attempted to conceal the offence – where the offender's conduct had real and dire consequences for the man the object of public justice offence – where the offence had a serious, deleterious effect on the administration of justice and constitutes a significant perversion of the course of justice SENTENCING – the governing principle for the imposition of a sentence of "severity appropriate in all the circumstances of the offence" – where there was injury, loss and damage resulting from the offence on the victim – where the offender expressed contrition and entered a guilty plea – no prior convictions – offender's mental condition – where the uncontradicted expert evidence of the offender's mental condition was that in all probability the offender's mental condition was causative of the offending – where De La Rosa considerations were relevant – lowering the offender's moral culpability – not making the offender an appropriate vehicle for general deterrence – having the effect that a custodial sentence may weigh more heavily on the offender – reducing the significance of general deterrence SENTENCING – Aggregate sentence – good prospects of rehabilitation – low risk of reoffending – relevant considerations in relation to a non-parole period – COVID-19 considerations – mental condition treatment considerations Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Cases Cited: Markarian v The Queen (2005) 228 CLR 357 R v De La Rosa (2010) 79 NSWLR 1 Category: Sentence Parties: Regina (Crown) Arsalan Khawaja (Offender) Representation: Counsel: Mr P McGuire SC, with Ms T Epstein (Crown) Philip Boulten SC with Mr M Kalyk (Offender)