R v Khamas [1999] NSWCCA 436

Reported Decision : 108 A Crim R 499

New South Wales Court of Criminal Appeal CITATION : R v Khamas [1999] NSWCCA 436 FILE NUMBER(S) : CCA 60250/99 HEARING DATE(S) : 25 November 1999 JUDGMENT DATE : 25 November 1999

PARTIES : Danny Khamas - Appellant Regina - Respondent JUDGMENT OF : Sully J at 46; Hulme J at 1; Hidden J at 47

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Judge Moore

COUNSEL : P Byrne SC - Appellant RA Hulme - Crown SOLICITORS : Glenn K Walsh - Appellant SE O'Connor - Crown CATCHWORDS : DECISION : See paragraph 45.

IN THE COURT OF CRIMINAL APPEAL No: 60250/1999 SULLY J HULME J HIDDEN J Thursday, 25 November 1999 REGINA -v-Danny KHAMAS

JUDGMENT 1 HULME J : In this matter, on 15 April 1999, the respondent to this Crown appeal pleaded guilty to two counts of attempt armed robbery and one of assault. All three counts arose out of the one incident on 26 September 1998 when the respondent and a co-offender sought to obtain the takings of a McDonald's restaurant from the female manager of that restaurant and a security guard and in the course of doing so punched and kicked the security guard. The arm involved was a replica semi automatic pistol. 2 On 15 April 1999, Judge Moore sentenced the respondent on each count to concurrent terms of imprisonment for two years, such imprisonment to be by way of periodic detention. 3 By letter dated 21 April 1999 the Director of Public Prosecutions wrote to the respondent informing him that an appeal against the inadequacy of the sentence was being considered. The court was provided with proof of posting of that letter, although it was informed by Mr Byrne SC, appearing for the respondent, that the letter had not been received. 4 A notice to appeal against all three sentences was signed on 19 May and served on 27 May. It may be no coincidence that the judgment of this court in R v Henry (1999) 46 NSWLR 346 setting out guidelines for the sentencing of persons convicted of armed robbery was delivered on 12 May 1999. 5 The two offenders planned the offence over a day or two preceding its commission. Earlier in the day of 26 September 1998, the respondent had obtained a replica pistol, which he owned, from a friend who had borrowed it. On the evening of 26 September, the offenders drove to a place near the restaurant, parked the car, checked out the area and waited until the restaurant had closed and other staff had departed. 6 Some time after 1 am the two victims left the premises and went toward the manageress' car. There the offenders approached them, the co-offender appeared to cock the weapon. Both offenders demanded "the money". The security guard resisted, was kicked and punched by the co-offender and later punched at least once by the respondent. During the incident the respondent attempted to forcibly take from the manageress her handbag. 7 In the course of leaving the scene, the respondent was spoken to by some police officers and asserted he was just going for a jog. Details provided in response to some further questioning struck the police as improbable and, on being apprised of the attempted robbery they arrested the respondent. Later in the early morning, a formal interview was conducted in which the respondent admitted his involvement and provided details of the circumstances. 8 In due course, the respondent was granted bail but on 4 November 1998 he was observed pushing a shopping trolley by police attending a home unit in response to a report of a break and enter. Inside the trolley was a television set, a video recorder, a stereo system with speakers, a CD player and these items were covered with a bath towel. When questioned, the respondent provided false answers. Later, when the occupier of the unit was brought down and identified her property, the respondent said: "OK, you've got me, but I didn't steal the stuff from anyone. I bought it from the guy Karl who lives in 401 for $150."