R v KANJ [2000] NSWCCA 408

Reported Decision : [2000] 118 A Crim R 329

New South Wales Court of Criminal Appeal

CITATION : R v KANJ [2000] NSWCCA 408 FILE NUMBER(S) : CCA 60190/99 HEARING DATE(S) : 09/10/2000 JUDGMENT DATE : 9 October 2000

PARTIES : Regina v Mohamad KANJ JUDGMENT OF : Hulme J at 40; Barr J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0037 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

COUNSEL : Crown: RD Cogswell QC/V Bedrossian Applicant: M Thangaraj SOLICITORS : Crown: SE O'Connor Applicant: George Caristo & Associates

R v Glen, Court of Criminal Appeal, 19.12.94, unrep CASES CITED: R v William Charles Bradford, Court of Criminal Appeal, 6.5.88, unrep R v Rowe (1996) 89 A Crim R 467 Pearce v The Queen (1998) 194 CLR 610 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60190/99

HULME J BARR J

Monday, 9 October 2000 REGINA v Mohamad KANJ JUDGMENT

1 BARR J: The applicant Mohamad Kanj seeks an extension of time within which to seek leave to appeal against sentences imposed upon him by her Honour Karpin DCJ in the District Court. If granted an extension of time he seeks leave to appeal against the sentences. 2 Following a trial a jury convicted the applicant of one count of detaining his wife Najah Kanj with intent to hold her for his advantage and one count of maliciously wounding Hussein Issa. Because her Honour found that the applicant had released his wife without her having suffered any substantial injury the maximum penalty on the first count was fourteen years' penal servitude. The maximum penalty on the second count was seven years' penal servitude. 3 On the first count her Honour sentenced the applicant to penal servitude for five years with a minimum term of three years dating from the date of imposition of sentence and an additional term of two years. On the second count her Honour sentenced the applicant to a fixed concurrent term of three years. 4 The facts found by her Honour were as follows. The applicant's wife, Najah Kanj, was sent from her home in Australia at age sixteen years to Lebanon to marry the applicant, her cousin. The marriage took place and after a year they came to live in Australia. The marriage was not a happy one and was punctuated with bouts of violence and separations. During 1996, after the applicant struck their three month old child, there was a separation during which Mrs Kanj obtained some kind of restraining order. 5 Mrs Kanj became friendly with a man called Hussein Issa, a slightly built man considerably smaller than the applicant. They met a number of times but the applicant found out that they were meeting, telephoned Mr Issa and threatened to kill him. Mr Issa told Mrs Kanj about the telephone threat and expressed his intention not to see her again. However, she continued to telephone him. 6 The applicant was present with Mrs Kanj during one of the telephone calls, interrupted it and again threatened Mr Issa. Some weeks later Mrs Kanj again telephoned Mr Issa and told him that she was once again separated from the applicant. They resumed their meetings, although at the time of the events giving rise to the charges they had not met for two or three weeks. 7 On 15 September 1997 the applicant telephoned Mrs Kanj and persuaded her to go to the place where he was then living, the former matrimonial home. She complied and once she was inside the premises the applicant detained her. He did so in order to find out where Mr Issa was and to gain entry into his premises and assault him. 8 He bullied and intimidated Mrs Kanj and kept her there against her will until she agreed to help him carry out his plan. 9 They went together to Mr Issa's premises about midnight on 15 September 1997. The applicant's brother went with them. Mrs Kanj knocked on the door and in answer to Mr Issa's question identified herself and asked him to open the door. As soon as he did so the applicant rushed in and struck Mr Issa. 10 The applicant was carrying a baseball bat in his right hand and a knife in his left. He struck Mr Issa several blows on the head and accused him of sleeping with his wife. The applicant's brother entered the flat as well. The applicant closed and chained the front door and resumed his assault and intimidatory behaviour towards Mr Issa. 11 Mr Issa was crying and the applicant cornered him in his bedroom and struck him again with the baseball bat. He produced the knife and inflicted a cut under the eye and to the throat. He was prevented from doing worse injury by his brother who more than once intervened in an attempt to stop the assault. 12 The evidence of Dr Varshney, which was put before her Honour, shows that Mr Issa was very lucky in that in the end he received only superficial injuries. 13 The applicant was able to commit the offences largely because of his intimidatory tactics and his trickery. Those tactics continued after he stopped assaulting Mr Issa, who had to be taken to hospital. There, under the influence of the applicant, he told a false story about how he received his injuries. 14 Her Honour noted that until he was interviewed by an officer of the Probation and Parole Service the applicant denied committing these offences. On the occasion of the interview he apologised for the inconvenience he had caused, something her Honour understandably described as a "remarkable understatement". 15 By the time of the trial the applicant and Mrs Kanj had become reconciled and she had already made a statement to the police to the effect that she did not want the charges to continue. She gave evidence reluctantly at the trial and the Crown was given leave to cross-examine her as an unfavourable witness. Her Honour accepted that Mrs Kanj had forgiven the applicant and desired that he not suffer imprisonment for the offences. 16 It was submitted in this application that her Honour made a number of errors in imposing sentence. The first was said to be a failure to take into account that the applicant was a Lebanese Muslim male, a member of a group which would be regarded as conservative, and who would therefore more readily become enraged by the knowledge or belief that his wife was seeing another man. It was submitted that although such an emotion would not justify or excuse criminal conduct of the kind committed by the applicant, it would explain it. 17 It was submitted that the applicant was under significant emotional stress and that that was a matter which her Honour ought to have taken into account in mitigation of sentence. 18 An examination of the transcript shows that no evidence was placed before her Honour to show that there was any identifiable characteristic in Lebanese Muslim males of the kind contended for or that the applicant was under any emotional stress over and above that which might have been experienced by any young male member of the community faced with the same circumstances. Ultimately counsel for the applicant conceded that this was so but invited the Court to take notice of the existence of such a characteristic in persons of the applicant's race and background. 19 There could be no doubt that the applicant committed these offences because of his jealousy and his desire for revenge upon Mr Issa, and that in acting as he did he was the subject of emotions that seem to me to be well distributed in the population, consisting as it does of members from many racial and social backgrounds. It does not seem to me that this applicant was entitled to be treated relevantly on any favourable basis. This Court is not in any position to take notice of the existence of any such characteristics as were contended for and it would in my opinion be inappropriate to assume that such things were the fact. I make no comment about the result that might follow if the facts were different. 20 Then it was submitted that a relevant factor was that the applicant had reunited with Mrs Kanj and they had had a second child and that she had forgiven him. It was submitted that her Honour wrongly disregarded a submission that Mrs Kanj's forgiveness should lead to a lesser sentence. 21 In fact what her Honour said was this - . . .it is well recognized that the wishes of the prisoner's wife, namely as a victim, are of little relevance in these circumstances. It is indeed well settled that the evidence of victims cannot determine the approach to be taken by the Court in sentencing. 22 Her Honour then referred to R v Glen, an unreported decision of this Court of 19 December 1994. 23 In this Court reference was made to a further unreported decision of this Court, R v William Charles Bradford 6 May 1988, in which the Court comprised Sir Lawrence Street CJ, Roden J and Loveday J. The facts of that case were quite remarkable and really in my opinion quite unlike those of the present case, and that of itself suggests that the principle stated needs to be applied with some caution. The appellant was married to the complainant. They were present together arguing about the state of the marriage, apparently having done so in circumstances of some agony for a considerable period of time. The complainant made plain her intention to leave the appellant. As the Chief Justice remarked, "the appellant appeared to have cracked". He went into the bedroom, obtained a knife, seized his wife from behind and inflicted upon her a number of serious injuries. He later wrote a suicide note. 24 The Chief Justice said this at page 2 of the judgment - Cases of this nature are notoriously difficult when it comes to the matter of sentence. One must, of course, recognise the very real concern of the victim of such an offence and the potential victims of similar offences. In this instance the attitude of the victim is manifested by her having returned to live with the appellant. It does not of course lie in the hands of a victim to determine what punishment should be meted out for a criminal offence. Punishment can properly be tempered in the light of the victim's attitude. But their community's interest in ensuring law abiding conduct by its citizens must be given due weight when determining the sentence in a case such as this. 25 Roden J agreed and Loveday J thought that, the complainant having returned to live with the appellant, her indication that she would have preferred not to proceed with the charge was a factor that should be taken into account along with other matters relevant to sentence. 26 More recently this subject has been raised in R v Glen, in the judgment of only one member of that bench, Simpson J. But as the judgment of Simpson J makes clear, exceptional caution should be exercised in the receipt and use of evidence of forgiveness as a sentencing factor in domestic offences. 27 Finally, reference was made to R v Rowe (1996) 89 A Crim R 467. The bench was constituted by Hunt CJ at CL, Smart J and Ireland J. Hunt CJ at CL said this at pp 472-473: The applicant's fifth submission is that the judge gave insufficient weight to the wishes of the complainant. The Court has said more than once that the attitude of complainants cannot govern the approach to be taken in sentencing. In Glen, Simpson J pointed out that, whilst forgiveness by a victim may be relevant in some cases, exceptional caution is required in allowing such evidence to be given in relation to domestic violence type offences. The present offences fell within the same category, where the nature of the relationship between the offender and the victim is such that the victim will frequently, and clearly contrary to their own interests and welfare, forgive their attacker. The importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have. 28 It seems to me that the remark of her Honour which I have set out above was perfectly justified according to the principle explained in the cases and according to the facts in this case. In my opinion the learned sentencing judge exercised appropriate caution in giving little weight to the evidence that Mrs Kanj was once again reconciled with the applicant. 29 Then it was submitted that in sentencing for malicious wounding her Honour erred in an observation that it was an exacerbating feature of the injuries that entrance was gained to Mr Issa's home by a trick. It was submitted that the trick did not exacerbate the injuries. 30 Secondly, it was submitted that any trick on behalf of the applicant had already been taken into account in sentencing for detaining for advantage. It was unfair, it was submitted, to take the same conduct into account twice in sentencing. Reference was made to the judgment of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610. 31 In my opinion there is no substance in either of these submissions. The first misquotes her Honour who said, referring to the malicious wounding, that an exacerbating feature of those injuries and of this offence is that entrance was gained by trickery. I think that that observation was appropriate in all the circumstances. I do not think that her Honour regarded the injuries themselves as more serious because of the way in which the applicant gained entry to the premises of the victim. The offence itself was, of course, more serious on that account. 32 It is clear from her Honour's remarks that she took into account in sentencing the applicant for each of the offences the manner in which that offence was prepared for and committed. The manner in which the applicant secured his wife's attendance at his premises was trickery of one kind. He gave some excuse to have her attend his premises and not to expect to be treated as she then was. 33 The intimidation and trickery upon which the applicant then embarked was of a different kind. He used his wife to obtain entry to the premises of Mr Issa and it was that course of conduct which her Honour regarded as aggravating the second offence. 34 It is difficult to understand how her Honour could have sentenced for either offence without taking into account in that offence the precise manner in which the applicant prepared his way and set out to commit that offence. His conduct in that regard was an inseparable part of his criminal conduct with respect to each offence. 35 I do not think her Honour imposed sentence contrary to any principle expressed in Pearce v The Queen. 36 Then it was submitted that a sentence incorporating the minimum term of three years for a man with no criminal record was manifestly excessive. I do not agree. These offences were very serious indeed and the sentences imposed were, in my opinion, well within the proper range of her Honour's sentencing discretion. 37 Then it was submitted that the applicant's inability to speak English would make it far more difficult for him to serve a prison sentence. Such a circumstance was not referred to in her Honour's remarks on sentence and it was submitted that her Honour must therefore have overlooked it. 38 I would accept that the applicant's lack of English might lead to difficulties for him in his prison career and that he would be entitled to have such a circumstance taken into account in the assessment of the appropriate sentence, but so much was obvious and I do not think her Honour's failure to mention the matter is any indication that she did not take it into account. The reasonableness of the sentence imposed, for one thing, makes me comfortable in reaching that conclusion. 39 I would grant an extension of time within which to bring this application for leave to appeal and I would grant leave to appeal but I would dismiss the appeal against the sentence. 40 HULME J: I agree with the orders proposed by Barr J and with his Honour's reasons. Accordingly, the orders of the Court are that leave to appeal is granted and that the appeal is dismissed. **********