Khawaja v R [2014] NSWCCA 80

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Khawaja v R [2014] NSWCCA 80 Hearing dates: 12 March 2014 Decision date: 24 June 2014 Jurisdiction: Criminal Before: Leeming JA at [1]; Button J at [2]; RS Hulme AJ at [6] Decision: 1. Leave to appeal against sentence granted 2. Appeal dismissed Catchwords: CRIMINAL LAW - sentencing appeal - s 53A Crimes (Sentencing Procedure) Act 1999 (NSW) - requirement to "indicate" individual sentences not complied with - neither ultimate sentence nor degree of accumulation excessive Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Cases Cited: R v Hammond (2000) 118 A Crim R 66 R v Harris [2007] NSWCCA 130; 171 A Crim R 267 R v Wheeler [2000] NSWCCA 34 Category: Principal judgment Parties: Mouhammad Hussein Khawaja (Applicant) Regina (Crown Respondent) Representation: Ms R Burgess (Applicant) Ms T Smith (Crown Respondent) Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown Respondent) File Number(s): 2012/40606004 2012/58082004 Decision under appeal Date of Decision: 2012-12-07 00:00:00 Before: GD Woods DCJ File Number(s): 2012/40606004 2012/58082004

Judgment 1LEEMING JA: I agree with RS Hulme AJ. 2BUTTON J: I agree with the orders proposed by RS Hulme AJ, and with his Honour's reasons. I wish to add some very brief comments of my own. 3As for ground 1, it is true that the learned sentencing judge did not comply with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"). It is also true that the approach adopted may have hindered the sentencing judge's reflection upon the degree of implicit accumulation in the aggregate sentence ultimately imposed. That is one reason why the steps outlined by RS Hulme AJ should be undertaken in the order envisaged by the statute. However, it is impossible to say that that hindrance actually occurred. Because of that impossibility, I would not uphold ground 1. 4As for ground 2, it calls for consideration of whether the degree of accumulation implicit in the aggregate sentence is manifestly excessive. As a matter of mathematics, if the correct approach had been undertaken, his Honour would have provided two indicative head sentences of imprisonment for 3 years 9 months with regard to two separate criminal incidents. In those circumstances, I do not regard the degree of accumulation implicit in an aggregate head sentence of imprisonment for 6 years as manifestly excessive. 5As for ground 3, I consider that it was open to the broad discretion reposed in a sentencing judge to reduce modestly the aggregate non-parole period from 4 years and 6 months to 4 years. 6RS HULME AJ: On 7 December 2012 the above named Applicant for leave to appeal was sentenced by GD Woods DCJ in respect of two offences, robbery armed with an offensive weapon committed on 28 January 2012, and assault with intent to rob whilst armed with an offensive weapon, committed on 5 February 2012. Both offences arise under s 97(1) of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of 20 years' imprisonment for each offence. 7The sentence imposed by his Honour was an aggregate sentence of 6 years including a non-parole period of 4 years, both such periods commencing on 21 April 2012. His Honour found special circumstances. 8The grounds of appeal are: (1)His Honour erred in his application of the aggregate sentencing provisions (2)The degree of accumulation is manifestly excessive (3)His Honour failed to give adequate effect to his finding of special circumstances 9The circumstances of the offences - I summarise Judge Woods remarks - were: " ... on Saturday 28 January 2012 after midnight the offender went to a 7-Eleven convenience store intending to rob it. The DVD ... shows a gentleman behind the counter doing his normal business serving people and then along comes the offender disguised with a hoodie and a peaked cap to cover up his face and wearing gloves. He lurks behind the other customers until he gets the opportunity of going to the counter. When the other people have gone he produces a very large knife ... It is a very frightening instrument and he leaned over the counter putting the knife towards the victim's body and saying, "Open the fucking till otherwise I will chop you." He demanded money and told him to hurry up. The sensible victim opened the cash register, grabbed the notes that were in there and pushed them to the offender who took them. There was about $600 in notes and $76 in coins. A week or so after that, Sunday 5 February, the offender repeated the exercise with a co-offender at the 7-Eleven in Rockdale. Again, the photographs show hooded figures, a frightening looking knife, the same technique, an approach to the counter, the words, Give me the fucking money" to which the frightened worker says, "Don't hurt me I have two kids take what you want." The offender was unable in fact to open the cash register. Fortunately for the victim (and for the offenders, no doubt) a man pulled into the service station and, being interrupted, the offender and his mate decamped." 10On 10 December 2010 in respect of a charge of affray, the Applicant had been sentenced to imprisonment for 10 months and 22 days commencing on 19 January 2010. The length of the sentence obviously accorded with his pre-sentence custody. 11In May 2012 he was charged with breaking, entering and stealing and in September 2012 sentenced to imprisonment for 4 months commencing on 21 February 2012. The commencing date of the sentence under appeal was 2 months prior to the end of the 4 months sentence. 12On 7 February 2012 he had been charged with possessing a prescribed restricted substance and having custody of a knife in a public place. The most significant sentence for these offences, imposed in June 2012, was a 12 months bond. 13Turning to the Applicant's subjective circumstances, Judge Woods observed, inter alia: "(The Applicant) was born in Australia of Lebanese migrants. He had trouble at school. He got into drugs. His parents attempted to put him on the straight and narrow by taking him to Lebanon. ... He found the cheap hashish in Lebanon attractive. He came back to Australia drug addicted and he continued to be drug addicted in the following years. ... It is a significant consideration in mitigation that he is very young - young and stupid in this conduct but nonetheless young and not without some prospect of success in the future." 14The Applicant was born in June 1991. He was allowed a 25% discount for his plea.