Khanat v R (Cth) [2024] NSWCCA 41

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khanat v R (Cth) [2024] NSWCCA 41 Hearing dates: 21 February 2024 Date of orders: 15 March 2024 Decision date: 15 March 2024 Before: Wilson J at [1] Ierace J at [28] Cavanagh J at [29] Decision: (1) Leave to appeal is granted. (2) The appeal against sentence is upheld. (3) The sentence imposed in the District Court on 29 June 2023 is quashed and in lieu thereof: (a) The applicant is sentenced to imprisonment for a term of one year and nine months, backdated to commence on 22 June 2023 and expiring on 21 March 2025. (b) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the applicant is to be released on 21 March 2024 and will be subject to a recognizance in the sum of $500 without security to commence on the date of his release and to expire after two years on the following conditions: (i) That the applicant be of good behaviour, from the date of release. (ii) That the applicant be subject to supervision by Community Corrections. (iii) That the applicant obey all reasonable directions of Community Corrections. (iv) That the applicant not travel overseas or interstate without the approval of Community Corrections. Catchwords: CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence Legislation Cited: Crimes Act 1914 (Cth), s 20 Crimes Act 1900 (NSW), s 52A(3) Criminal Appeal Act 1912 (NSW), s 6 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 66 Customs Act 1901 (Cth), s 233BABAD(2B) Firearms Act 1996 (NSW), s 7(1) Cases Cited: AM v R [2024] NSWCCA 26 Casella v The Queen [2019] NSWCCA 201 Chan v R [2023] NSWCCA 206 DL v The Queen (2018) 265 CLR 215 Elphick v R [2021] NSWCCA 167 Hoare v The Queen (1989) 167 CLR 348 Karout v The Queen [2019] NSWCCA 253 Mandranis v The Queen (2021) 289 A Crim R 260 Quinn v Director of Public Prosecutions (Cth) [2021] NSWCA 294 R v Dodd (1991) 57 A Crim R 349 R v Fangaloka v R [2019] NSWCCA 173 R v FF [2023] NSWCCA 186 R v Pullen (2018) 275 A Crim R 509 R v Scott [2005] NSWCCA 152 R v Whyte (2002) 55 NSWLR 252 Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3 Tonga v R [2023] NSWCCA 120 Turnbull v R [2019] NSWCCA 97 Veen v The Queen (No 2) (1988) 164 CLR 465 Zheng v R [2023] NSWCCA 64 Category: Principal judgment Parties: Omran Khanat (Applicant) Rex (Respondent) Representation: Counsel: T Woods (Applicant) L Fernandez (Respondent)