Khudadadi v R

Grounds of Appeal

1. The notice of appeal identifies the following grounds: Ground 1 His Honour failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 and the assistance provided by the applicant in facilitating the course of justice in the trial. Ground 2 The sentence imposed was manifestly excessive and a different sentence is warranted at law.

The Sentence Proceedings

1. The sentence proceedings were heard on 11 June 2020 before the judge, during which the Crown tendered a sentencing assessment report.
2. Mr Lang, the author of the report, considered that despite the severity of the offence, the level of violence displayed by the applicant appeared to be "out of character". Mr Lang opined that the applicant appeared to minimise the severity of his aggression and attempted to place blame for his level of violence on the victim. The applicant was attempting to address his anger management issues through regular psychological counselling. The applicant was assessed at a medium low risk of reoffending.
3. The applicant gave evidence of his arrival to Australia by boat as a refugee. He said that he left Afghanistan due to concerns over his safety as he was a Shiite Muslim, which is a minority religion in Afghanistan. The applicant left his wife and two children in Afghanistan so that he could support his family from Australia. He told the judge that he was on Christmas Island, then travelled to Melbourne, Adelaide and Perth, where he stayed for two and a half years and was provided with a work permit. He worked as a renderer in Perth and Sydney.
4. The applicant said that he was taking medication for stress caused by the separation from his family and the legal problems he was facing. He said that after the last time he appeared in court, he visited his doctor to obtain a psychiatric report but he was unable to be referred to a psychiatrist as his doctor told him he was not entitled to any financial assistance and he would have to pay on his own.
5. In cross-examination, the applicant maintained his innocence and said that he did not agree with the jury's verdict nor the victim's version of what occurred on 8 November 2017. He said he never had issues with anger and he had been stressed.
6. The applicant has no prior criminal history.

Facts

1. The judge found the following facts which were consistent with the verdict of the jury: 1. The applicant, the victim, Mr Moktar, Mr Akbari and a fourth man [sic] were sharing accommodation in a house in South Wentworthville. 2. On 8 November 2017, the victim had travelled to and from work with Mr Akbari. At about 6:00pm, they returned home. The victim made his way inside the house whilst Mr Akbari remained in the car and called his family on the phone. 3. When the victim went into the kitchen area, he encountered the applicant. Soon afterwards, an argument developed between them which developed into a fight. During the fight, punches were thrown by both men and the victim's glasses were broken. As a result of the fight, various items in the kitchen area were also broken. 4. The fight did not last long; the victim retreated to his bedroom at the back of the house. The victim closed the bedroom door behind him and sat on a corner of the bed. 5. About two minutes later, the victim heard the applicant yell, "I'm going to kill you". At the same time, the applicant burst into the bedroom with a large black handled kitchen knife. The applicant then attacked the victim by attempting to stab him in the centre of his chest with the knife. 6. The victim was able to grab the blade of the knife with his hand and stopped it from entering his chest. However, in doing so, the knife made a small laceration to the victim's chest. 7. A struggle ensued in the bedroom and the applicant again said he was going to kill the victim. 8. At some stage during the struggle, and whilst the victim was holding the blade of the knife, the victim's hand was cut. 9. The victim then ran for the bedroom door and as he did so, the applicant hit him on the head with the butt of the knife. 10. The victim ran out the back door of the house leaving a trail of blood behind. 11. Once outside, at 6:17pm, the victim called 000 and immediately complained that the applicant had attacked him and that the victim's hand had been wounded. 12. The applicant then hid the black handled knife, along with a yellow handled knife, in the back of a cupboard in the kitchen. 13. At 6:21pm, the applicant called 000 and told the operator that he had been in a fight with the victim. The applicant told the operator that there was no weapon or knife involved and nobody was hurt. 14. At 6:21pm, police arrived at the house and observed the victim and Mr Akbari at the front of the house. Police observed an injury to the victim's hand. The victim made a complaint to one of the officers about being attacked by the applicant. 15. The applicant came out the front of the house and was arrested by police. 16. The applicant assisted police in locating the black handled knife. 17. Shortly afterwards, ambulance officers took the victim to Westmead Hospital. He was reviewed by the plastic surgery team and underwent operative exploration and repair of a right hand wound on 10 November 2017. During the operation, doctors noted a laceration extending over the palm in a semicircular pattern extending through the epidermis, dermis and superficially into the underlying muscles of the palm. The nerves and tendons were not damaged. The wound was washed with normal saline solution. The muscles did not require repair and the skin was closed with stitches and a dressing applied. The victim was discharged from hospital on 13 November 2017. 18. On 8 November 2017, police interviewed the applicant at the Merrylands Police Station. The applicant disputed the victim's version of events and suggested that the victim attacked him. The applicant's account involved the victim taking a knife to his room along with the applicant and attacking the applicant in the room with the knife. The applicant's account was, essentially, that the wound to the victim occurred while the applicant was disarming the victim.

Some findings made by the judge

1. The judge found that the offence was "essentially spontaneous with little to no planning". The judge said, "the level of violence was significant" and "the injuries were fortunately not life threatening but the victim was required to undergo surgery".
2. His Honour did not find that the offence was aggravated because it occurred in the victim's home, or that a grave risk of death was present. However, the judge did take into account the location of the offence in assessing the objective seriousness.
3. His Honour ultimately found the offending to be "a little below the notional mid-range".
4. In relation to the applicant's subjective case, the judge noted the applicant had no criminal history, which entitled him to leniency in his sentence. His Honour also noted the applicant's "family background" and that he arrived in Australia as an "asylum seeker from Afghanistan" and he had limited family support, with his wife and children remaining in Afghanistan. The judge noted that the applicant commenced taking medication for anxiety and stress after the offence was committed to deal with the stress of being away from his family, and the legal proceedings surrounding the charge. His Honour noted that the applicant "received no formal schooling and … has limited literacy skills". The judge said that he accepted the applicant's evidence concerning his personal history.
5. The judge did not find the applicant had any remorse for the offending, noting he had said in evidence that he maintained his innocence, notwithstanding the jury's verdict.
6. His Honour found that the applicant has "good prospects for rehabilitation" noting his lack of prior offending, his history of employment and the opinion expressed in the sentencing assessment report that the applicant was at a "medium to low risk of reoffending".
7. The judge declined to accept the defence submission that the sentence could be served by an Intensive Correction Order ("ICO"). His Honour said, "to do so, I would have to conclude that the appropriate sentence is one of two years or less".
8. The judge found special circumstances because of the applicant's lack of criminal record, little support in the community and the fact that the sentence would be harder for him because of the reduced phone contact with his family.

Ground 1: His Honour failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 and the assistance provided by the applicant in facilitating the course of justice in the trial

Argument

1. The applicant contended that he facilitated the administration of justice by shortening the length of the trial in providing agreed facts. The applicant submitted that the judge failed to consider the assistance provided by the applicant pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA").
2. The applicant submitted that the agreed facts avoided the need for 000 operators, ambulance, medical practitioners, crime scene police, scientific evidence relating to DNA and corroborative police to be called at the trial which was further complicated by the fact that the applicant required the assistance of an interpreter. The applicant placed reliance on R v Spinks [1] ("Spinks") in which Hamill J applied a sentencing discount of 5% for the facilitation of the course of justice by the offender.
3. In oral argument, Ms Kluss, the applicant's counsel, accepted that the issue was not raised during the proceedings on sentence by the applicant's trial counsel but contended that the judge failed to consider whether a discount was necessary and what type of discount was appropriate.
4. Ms Kluss argued that the ERISP interview confined the issues at the trial to what occurred in the bedroom and the conflicting accounts of the applicant and victim.
5. The Crown contended that the absence of a submission as to the application of s 22A by the applicant's trial counsel tended to show that he did not consider there had been such a degree of assistance to warrant a reduction.
6. Whilst the Crown accepted that the ERISP and agreed facts meant that a number of witnesses were not required to be called, the Crown argued that none of these witnesses' evidence could have been challenged in a way that would have borne on the issues in the trial. Furthermore, proof of the victim's injury, 000 calls and DNA would not have been onerous for the Crown to establish.

Consideration

1. Section 22A of the CSPA is as follows: 22A Power to reduce penalties for facilitating the administration of justice (1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). (2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
2. During the proceedings on sentence, submissions were made on behalf of the Crown and applicant. The applicant did not submit that s 22A of the CSPA was engaged.
3. This Court has stated on many occasions that it is a court of error and not a forum for the revision and reformulation of the case made before the sentencing judge. Arguments not advanced in the court below will only be entertained in "rare" circumstances such as to correct a "miscarriage of justice or serious injustice". [2]
4. Where a submission is to be made that a sentence is to be reduced pursuant to s 22A of the CSPA, it should be made to the trial judge who has full knowledge of the trial and how it was conducted. As this Court (Ward JA, Beech-Jones and Fagan JJ) observed in Mulvihill v R [3] at [263]: "…Most significantly, if reliance had been placed on s 22A at first instance, her Honour would have been able to assess whether the matters to which the applicant now points truly did facilitate the administration of justice. As the trial judge, her Honour was best placed to do so. In circumstances where no submission relying on s 22A was made, no error has been established by her Honour not expressly addressing the provision. As stated by Davies J in RP at [96] (with whom Johnson J and Hamill J agreed on this point at [1] and [169] respectively): … in the absence of any submission made to his Honour in relation to a reduction in sentence whether by dint of the application of s 22A or generally by the facilitation of justice for the way the trial was conducted, I do not consider there is any basis for holding that error has occurred on the part of the Sentencing Judge."
5. It is unsurprising that the applicant's trial counsel did not make a submission relying on s 22A during the proceedings on sentence. Consistent with his ERISP, the applicant's case at trial was self-defence. Although the agreed facts saved the Crown from calling various witnesses, none of this evidence was contentious and was otherwise easy for the Crown to establish. It appears, at best, the estimated length of the trial may have been reduced by about a day.
6. In Spinks, there was a "high degree of pre-trial disclosure", [4] an 8-page document of agreed facts and the length of the trial was reduced to about 2 weeks from an estimate of 4 to 5 weeks. Hamill J reduced the sentence by 5% in accordance with s 22A. The present case falls far short of the facilitation of justice in Spinks.
7. No submission was made to the judge concerning s 22A and the applicant has not established that there has been a serious injustice.
8. I would reject Ground 1 of the appeal.

Ground 2: The sentence imposed was manifestly excessive and a different sentence is warranted at law

Argument

1. The applicant submitted that his subjective circumstances and the objective criminality justified a lower sentence than was imposed.
2. The applicant referred to the judge's findings that: 1. The offence was, essentially, spontaneous with little to no planning; 2. There had clearly been some animosity between the applicant and the victim a short time before the commission of the offence; 3. The weapon, being a kitchen knife, was used; 4. The level of violence was "significant"; 5. The injuries were not life-threatening, but the victim was required to undergo surgery; and 6. The nerves and tendons of the victim's hands were not damaged, and the muscles did not require repair.
3. The applicant submitted that the offence was out of character, that he was a person of considerable disadvantage with no criminal history, was illiterate but maintained employment, and had no drug or alcohol issues. Another submission was that incarceration was more onerous for him as he has no family in Australia and was disadvantaged by his illiteracy and language barriers. Further, there was considerable delay due to the Covid-19 pandemic which had adversely impacted him.
4. In oral submissions, Ms Kluss argued that the major injury to the victim had been occasioned by the victim holding the knife and there were not multiple wounds attributable to the weapon. Ms Kluss further submitted that the applicant had faced significant hardship as a refugee, which included being unable to work for periods of time and being distressed about his family. Ms Kluss contended that in forming the view a head sentence of three years was the relevant sentence, the judge had started from a point that was manifestly excessive. The contention was that an ICO was within the range of penalties available to the judge if his Honour had properly arrived at a sentence of two years or less.
5. The Crown argued that the judge's finding that the offending fell "a little below the notional mid-range" was consistent with the applicant's submission to the judge; that his Honour was well seized of the applicant's subjective case and made findings in respect of his mitigating features.
6. The Crown pointed out that an offence contrary to s 33 covers a broad range of offending and all the circumstances of the offence must be taken into account. A further submission was that during the sentence proceedings, the judge declined to accept the defence submission that the sentence could be served by an ICO and provided the applicant with the opportunity to make further submissions which was declined. The Crown submitted that the sentence was not manifestly excessive.

Consideration

1. In order to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [5] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [6]
2. The applicant was found guilty of wounding the victim with intent to cause grievous bodily harm to him, contrary to s 33(1)(a) of the Crimes Act. The seriousness of an offence contrary to s 33 was emphasised in R v Tuuta [7] by Bellew J (Bathurst CJ and Hoeben CJ at CL agreeing) at [48]: "The maximum sentence of 25 years' imprisonment which is applicable to an offence against s. 33 is the highest maximum penalty prescribed by the legislature, short of life imprisonment. It serves as an indication of the seriousness with which such an offence is to be regarded (see AM v R [2012] NSWCCA 203 per Johnson J at [67] - [68], McClellan CJ at CL and Garling J concurring, citing R v Zhang [2004] NSWCCA 358). The seriousness of such an offence is also emphasised by the intention which is required to commit it, namely the intention to cause grievous bodily harm, which is the mental element for murder in the event that the victim dies. It is that mental element that makes an offender liable to the maximum penalty of 25 years['] imprisonment (see R v Zamagias [2002] NSWCCA 17 at [11] per Howie J)."
3. Although the harm to the victim is a factor to be taken into account in determining the objective gravity of the offence, all of the circumstances of the offending must be considered. In the present case, the degree of violence and the ferocity of the attack were significant. It makes little sense to diminish the seriousness of the offence because the consequences to the victim were reduced by the steps he took to defend himself.
4. The judge sympathetically took into account the applicant's subjective case, including his background, and found special circumstances.
5. His Honour's rejection of the applicant's submission for the sentence to be served by an ICO was open to his Honour.
6. In my view, the applicant has not demonstrated that the sentence imposed was unreasonable or plainly unjust.

Orders

1. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.
2. HAMILL J: I agree with Price J.
3. IERACE J: I also agree with Price J.

Endnotes

1. [2021] NSWSC 649.
2. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82] (Johnson J); Sumpton v R [2016] NSWCCA 162; Griffin v R [2018] NSWCCA 259; Jackson v R [2021] NSWCCA 15 at [89] (Price J).
3. [2016] NSWCCA 259.
4. R v Spinks [2021] NSWSC 649 at [48].
5. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
6. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
7. [2014] NSWCCA 40. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2021