R v Khoury

Court of Criminal Appeal (NSW)|2018-08-31|Before: Hoeben CJ, Walton J, Button J

Solicitors: Solicitor for Public Prosecutions - Applicant Crown John B Hajje & Associates - Respondent File Number(s): 2015/219603 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 8 June 2018 Before: Conlon SC ADCJ File Number(s): 2015/219603

Offences and sentence The respondent was committed for trial from the Local Court on 16 November 2016 for a number of domestic violence related offences. The trial was listed to commence in the District Court on 11 September 2017 before his Honour Acting Judge Conlon SC. The commencement of the trial was adjourned to allow discussions between the parties and to reduce issues.

The sentences imposed upon the respondent in respect of Counts 1 and 2 were manifestly inadequate

In accordance with that Act, a Notice of Appeal was filed on 6 July 2018 and served on the respondent, on 8 July 2018.

Factual background

The respondent was sentenced on the basis of an agreed statement of facts.
As at January 2015 the respondent and Ms Antic (the victim) had known each other for about six years and had a six month old son together. The victim, her mother and the child lived with the respondent at his mother's house until October 2014 when they moved to a unit in Ramsgate. It was a volatile relationship with frequent arguments and verbal abuse.
On the night of 10 January 2015 the victim and the respondent had an argument. The victim received calls and text messages throughout the night from the respondent who was intoxicated. In those communications he accused her of cheating on him.
The agreed facts set out the continuous stream of texts and calls on 11 January 2015. There were many missed calls to the victim between 2.30am and 5.16am. At 5.30am the victim awoke and checked her phone. She then went to the kitchen to get a glass of water and saw that the bottom of the front door to the unit was on fire. The victim screamed for her mother to grab the baby and go out onto the balcony. She then called triple 0, that call being made at 5.43am.
The victim and her mother with the baby managed to climb onto the balcony of the unit next door. A neighbour climbed onto the victim's balcony with a hose and managed to put out the fire. The entire front door was burned and a couch near the front door had started to catch fire.
Police, including scientific officers, arrived. Following an examination, police determined that the fire had been deliberately lit. The external aluminium screen door was open and the fire started on the outside of the timber entry door. The agreed facts acknowledged that the Crown could not prove that an accelerant had been used to start the fire.
Following this incident, the victim moved into a unit in Monterey. She continued to have contact with the respondent, but their differences had not been resolved.
On 24 July 2015, after sending numerous angry text messages, the respondent went to the unit in which the victim lived with her mother and their child. The victim's sister was also present. The respondent bashed on the door while screaming abuse at the victim and demanded to be let in. In doing so, he damaged the door. This incident lasted about 10-15 minutes.
The three charges of intimidation on the Form 1 were constituted by threatening telephone calls and text messages on the morning of 25 February 2015, and the morning and late evening of 9 March 2015.
Sentencing proceedings commenced on 1 December 2017. The Crown tendered a bundle of material that included copies of the indictment, Form 1 schedule, the statement of agreed facts and the respondent's criminal and custodial histories. The Crown relied upon a report prepared for sentencing by a forensic psychiatrist, Dr Lisa Brown, dated 27 November 2017. A victim impact statement of the victim was also tendered as part of the Crown bundle.
In that statement, the victim informed the Court of the financial cost of having to relocate after each incident. She told of suffering considerable anxiety for which she had sought the assistance of psychological counselling. She told of the loss of her sense of self, security and wellbeing and that she feared for her own safety and that of her family.
The respondent did not give evidence on sentence and his subjective case was advanced in the following documents:

Report of a psychiatrist, Dr Stephen Allnutt, dated 28 August 2017;
Report of a psychologist, Mr Mark Milic, dated 30 November 2017; and
A letter from the respondent to the sentencing court with a character reference from his uncle, Tony Hakim, dated 30 November 2017.

Written submissions on behalf of the respondent were provided by Senior Counsel appearing on his behalf.
In the course of proceedings, counsel for the respondent sought a deferral of sentencing to allow the respondent to continue with his treatment program, aimed at helping him manage his mental health symptoms, and to reinforce his recovery from substance addiction. The application was made pursuant to s 11 of the Crimes (Sentencing Procedure) Act (closely analogous to a "Griffiths Remand": Griffiths v R [1977] HCA 44; 137 CLR 293).
The sentencing judge concluded that it was appropriate to grant such a remand in order to allow the respondent to continue with his treatment and in order for the court to ultimately be informed about that treatment. This was because it might have a significant impact upon the court's assessment, not only of the respondent's prospects of rehabilitation, but of the likelihood of any further offending. His Honour set out his reasons for granting the remand in a separate judgment, delivered on 1 December 2017. However, that judgment did not determine the length of the sentences.
On 1 December 2017, his Honour made it clear that he was considering an ICO and, for that purpose, he directed the matter be listed for mention before him on 6 April 2018. His Honour said: "We can have it mentioned on that day and on that day what I will be doing is to request the assessment and that will certainly give at least six weeks for that assessment to be undertaken and on that day, I will order the assessment and then I can give a direction to Mr Khoury that he is to go to his nearest Community Corrections Office to get that underway." (T 12.12.2017, p 6)
On 6 April 2018, the matter came before his Honour for mention. Both the Crown and the respondent were represented. Both solicitors indicated to the court that the matter was listed for the purpose of the court making an order for an ICO assessment. His Honour made the order and adjourned the matter to 8 June 2018 for sentence.
On 8 June 2018 the sentence proceedings were finalised. The court received the ICO assessment report, dated 5 June 2018, which assessed the respondent as suitable for an ICO. The solicitor for the respondent provided the court with a letter from a psychiatrist, Dr Michael Atherton, dated 5 June 2017, and an updated report from Mr Milic, dated 5 June 2018.

The proceedings on sentence

The submissions on behalf of the respondent on 8 June focused primarily on his subjective case. He was aged 40 at the time of sentence. His criminal record consisted of two convictions of possessing a prohibited drug, one in 1998 and the other in 2013. Both of those offences were dealt with by way of fines. There were also two convictions for driving under the influence (mid-range PCA) in 2009 and 2012.
The respondent was raised in Sydney and was the eldest of four children. He is of Lebanese descent. He reported being subject to both verbal and physical abuse by his father, and that he had witnessed his mother being treated similarly during his childhood. He left school in year 10 and worked with his father for about 5 years learning shop-fitting and joinery. He went to work for his uncle, who owned a telecommunications business, initially as an installer and subsequently as a service manager. Between 2007 and 2008 he reported supervising approximately 100 staff in the United Kingdom operations of the business. He then went out on his own and operated a car radio store for a period. From about 2012 until the time of the offending, he was involved in demolition work.
The respondent reported having a number of serious relationships, the longest being with the victim between 2010 and 2015. They had only one child together, whom the respondent was seeing fortnightly at a contact centre. He had a daughter from a previous relationship.
Dr Allnutt in his report diagnosed the respondent as having a Social Anxiety Disorder which he characterised as follows: "Since adolescence he has experienced increased anxiety with associated panic attacks (characterised by shortness of breath, increased heart rate, palpitations and flushing) when exposed to social situations, particularly social situations that are novel or where he feels himself to be the centre of attention. As a result he has a preference to avoid such situations believing that others might be judgmental or critical of him. These symptoms continued at the time he saw me and have essentially been lifelong. He also manifests some mild depressive symptoms and it is probable that in the past [the respondent] has experienced fluctuating moods with episodic depressive episodes." Dr Allnutt also diagnosed the respondent with a Substance Use Disorder which was "relatively severe" and found that he was currently in full remission with respect to illicit drugs, but not with respect to alcohol.
Dr Brown interviewed the respondent, on 16 November 2017, on behalf of the Crown. She reported that he did not exhibit thought disorder or other possible signs of psychotic illness. She opined that if the respondent continued his abstinence from drugs, his chances of re-offending were relatively low. By way of qualification, she warned that should the respondent return to substance use, for example, in the instance the Family Court proceedings did not have a favourable result for him, he could relapse into substance use and aggressive behaviour. Dr Brown concurred with Dr Allnutt's diagnosis of a Social Anxiety Disorder and episodic depression in addition to "relatively severe" Substance Use Disorder.
Mr Milic opined that during the respondent's relationship with the victim, he had suffered from substance use disorders, Social Anxiety Disorder and Dysthymia (also known as Persistent Depressive Disorder). Mr Milic concluded that the respondent had used substances, chiefly cocaine, alcohol and sedative medication, to cope with social anxiety, Persistent Depression Disorder and relationship stress. Mr Milic thought that the respondent had made progress in recovery from his Substance Use Disorder but that he still experienced Social Anxiety Disorder and persistent depression. Overall, Mr Milic thought that the respondent's mental health was likely to improve with further treatment.
Dr Atherton reported that he had been treating the respondent since 26 February 2018. He diagnosed Social Phobia Disorder, likely Adult Attention Deficit Hyperactivity Disorder and Depressive Disorder. Dr Atherton observed that the respondent had been extremely well engaged with his treatment program and showed good progress in his recovery.
The sentencing judge made the following findings in respect of Count 1:

It was committed in the early hours of the morning, when the respondent was in an agitated, drug-affected state, directly related to the breakdown of his relationship and the lack of access arrangements to his young child.
It was an opportunistic act and his Honour was not satisfied beyond reasonable doubt that any degree of planning had attended the respondent's actions.
His action of setting fire to the door was illustrative of his impaired decision making, directly referrable to his substance intoxication.
There was no accelerant used, and the damage was confined to the door area, as a result of neighbours intervening to put out the fire.
The objective gravity of the offending conduct "falls only very slightly below the mid-range for offences of its type".

The sentencing judge made the following findings in relation to Count 2:

It was a frightening experience for all those inside the unit, perpetrated by an aggressive, belligerent and threatening figure in the shape of the respondent.
The respondent committed the offence as part of his misguided attempts to secure access to his son.
The objective seriousness of the offence "[fell] just below mid-range for offences of its type".

In relation to the respondent's mental condition, his Honour came to the firm view that the respondent's Social Anxiety Disorder had in no way contributed to his offending conduct. His Honour concluded: "… there is a total absence of any causal connection between that mental health condition and what he did in respect of this offending conduct. Clearly what contributed to his offending was his voluntary consumption of drugs and I do not regard that as a mitigating factor so far as his moral culpability is concerned". [Sentence judgment 12.8].
His Honour was satisfied that the expressions of remorse in the psychiatric and psychological reports were genuine and that the respondent had positive prospects of rehabilitation. His Honour allowed a discount of 15 per cent for the respondent's pleas of guilty.

The appeal

The Crown submitted that although it relied upon a single ground of appeal, there were a number of discrete errors in the sentence judgment which might have contributed to the imposition of sentences which were "unreasonable and plainly unjust".
The Crown submitted that such errors were: 1. His Honour erred in ordering an ICO assessment before the evidence and submissions were complete. 2. His Honour failed to have due regard to general and specific deterrence. 3. His Honour failed to have due regard to the principles of totality and accumulation in making the sentences wholly concurrent. 4. His Honour erred in giving undue weight to the respondent's prospects of rehabilitation. 5. His Honour failed to properly reflect the finding as to objective seriousness in the sentences imposed.
In relation to (i) the Crown submitted that the making of a Griffiths Remand was strongly suggestive that his Honour had first determined to proceed by way of an ICO before submissions were complete and that his Honour had not engaged in the stepped process required when an ICO was under consideration (R v Porte [2015] NSWCCA 174 at [102]-[105]). The Crown submitted that this error contributed to the imposition of individual and overall sentences which were manifestly inadequate.
In relation to (ii) the Crown submitted that the imposition of an ICO and a suspended sentence failed to sufficiently meet the needs of specific and general deterrence. This was because each of the offences were offences of domestic violence involving aggressive and abusive conduct which had manifested itself on two occasions over a six month period. In that regard, the Crown relied upon the observations of Adamson J (Bathurst CJ and Leeming JA agreeing) in Patsan v R [2018] NSWCCA 129 at [41]-[43] where her Honour said: "41 The High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 recognised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to specific and general deterrence, denunciation and community protection. The High Court referred, at [54], to: "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community." 42 Recently the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 said at [21] that: "current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of the offence because of change in societal attitudes to domestic violence." 43 The approach sanctioned by the High Court in Munda v Western Australia and The Queen v Kilic has frequently been applied by this Court: see, for example: Cherry v R [2017] NSWCCA 150 at [78]-[79]; and Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[84]. I regard her Honour's approach in the present case as entirely appropriate and in accordance with the above authorities."
The Crown noted that in the sentence judgment his Honour made no reference to the need for specific and general deterrence. This was so despite the importance of general deterrence being acknowledged in the course of proceedings and the issue of specific deterrence being connected with the causal connection between the respondent's mental conditions and the offending.
The Crown submitted that this was a case where it was necessary for the sentencing judge to emphasise the substantial role of general deterrence and to give effect to this important sentencing principle. The Crown submitted that even if this Court were to find that his Honour had regard to the issue of general deterrence, even though he did not refer to it, it was apparent from the sentences that no proper allowance had been made for that important consideration. The Crown submitted that this error had led to a manifestly inadequate sentence being imposed.
In relation to (iii) the Crown submitted that when imposing sentences for multiple offences, as was the case here, the court was required to consider how it would structure each of the sentences to ensure that the overall sentence reflected the total criminality (R v JRD [2007] NSWCCA 55 at [33]). The Crown submitted that in doing so, the court must consider the issue of totality and whether the sentences should be served consecutively or concurrently before deciding whether an alternative to full-time imprisonment is available.
The Crown submitted that the sentence judgment did not indicate that his Honour gave any consideration to the issue of totality. The Crown submitted that when considering whether to make the sentences concurrent or consecutive, the ultimate question for his Honour was whether the sentence for one offence could comprehend and reflect the criminality of the other offence: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]. The Crown submitted that it was not apparent from the sentence judgment that his Honour had taken into account that important consideration. This was particularly so when the offences were quite different and were separated by six months.
In relation to (iv) and (v), the Crown submitted that because his Honour had given undue weight to the respondent's rehabilitation, the resulting sentences lacked proportionality. This was evident when one had regard to his Honour's finding as to the objective seriousness of the offending in both counts, i.e. in the case of Count 1, the objective seriousness was "only very slightly below the mid-range" and for Count 2, "falling just below mid-range for offences of its type".
In summary, the Crown submitted that imposing an ICO and suspended sentence involved a significant degree of leniency and did not have due regard to the seriousness of the offending, particularly in the context of a domestic dispute involving multiple victims on two occasions. The Crown particularly relied upon the decision in Yucebasoglu v R [2015] NSWCCA 226. The Crown accepted that the offending in Yucebasoglu was more serious than in this case in that more victims were involved, the fire was lit at 3am and an accelerant was used. The Crown submitted that nevertheless, the observations there were particularly relevant to the facts of this case, i.e. this was a crime which could be carried out with relative ease and had the potential for devastating consequences. The Crown noted that this Court had emphasised the importance of deterrence, retribution and denunciation for the crime of "setting fire to a dwelling house occupied by a family in the small hours of the morning" at [38]. The Crown noted that in this case, there were three occupants of the apartment, including the respondent's six month old child, and the plea of guilty acknowledged that the respondent intended to cause injury to these people.
The Crown also noted that the respondent set fire to the only point of egress, other than the balcony, which the victims had to climb over, further risking their safety, particularly that of the infant.
The Crown submitted that when regard was had to the objective seriousness of the offences, even allowing for the respondent's good prospects of rehabilitation, it was clear that the overall sentence was manifestly inadequate and below the range of sentences that could be properly imposed for these offences.
In relation to the residual discretion, the Crown submitted that there was no delay in the Crown bringing the appeal and that the respondent was still only at an early stage of his post-sentencing regime.

Consideration

A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence, Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach.
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D Criminal Appeal Act the Court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. The Crown bears the onus of negativing any reason why the residual discretion of this Court not to interfere should be exercised.
A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error. In R v Harris [2015] NSWCCA 81 Adamson J (with whom Basten JA and RA Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy, identification of specific error is not required. Her Honour also noted that, nonetheless, identification of specific error might assist to explain why a sentence is manifestly inadequate. Her Honour noted that the judgment in CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 does not support the proposition that specific error must be identified before this Court will intervene, if manifest inadequacy can be established.
The submissions of the Crown have considerable force. Regrettably, in our society instances of domestic violence occur all too commonly and are regarded by the community as serious (R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [65]-[88]). The two offences for which the respondent was sentenced, particularly Count 1, were serious examples of domestic violence. As submitted by the Crown, the consequences in respect of Count 1 could have been catastrophic leading to the possible death or serious injury of up to three people. As his Honour found, the respondent's mental difficulties provide no excuse, nor even an adequate explanation, for that offence.
Accordingly, it is for those reasons and those set out by the Crown that I have concluded that the sentences imposed by his Honour in this case were manifestly inadequate.
That, however, does not end the matter. As the Crown appreciated, it carries the onus of establishing that this Court should not exercise the residual discretion, which it has, not to interfere with the judgment. It is on that issue that the Crown is in difficulty.
When the matter first came before his Honour on 1 December 2017, his Honour made it clear that he was considering ordering an ICO assessment and granted a "Griffiths Remand". At that time, the Crown made no submission to the effect that it opposed such a remand, or that such a remand was inappropriate, nor did the Crown make any submission that the making of an ICO was inappropriate and would constitute an inadequate penalty for these offences, particularly Count 1. As was accepted by the Crown, it was open to the Crown at that point to appeal against his Honour's granting of the Griffiths Remand (R v Farrell [2014] NSWCCA 30; R v Hopoi [2014] NSWCCA 263; R v Merillo [2017] NSWCCA 173).
When the matter came before the court again on 6 April 2018, the Crown was represented. The transcript of the proceedings before his Honour on that day makes it clear that the Crown was well aware, at that time, that his Honour was contemplating ordering an ICO assessment. The Crown did not object or oppose such a course and, in particular, made no submission that such a sentence in this matter would be erroneously lenient, or manifestly inadequate. No appeal was brought by the Crown at that time.
Finally, when the matter was before the court for sentence, on 8 June 2018, there was again no Crown submission to the effect, that his Honour had not followed the appropriate procedure regarding the ordering of the ICO assessment and no submission that a full-time term of imprisonment was required in excess of two years (or at all). There was no submission in those proceedings that his Honour would be falling into appellable error if he ordered that the respondent's sentence be served by way of an ICO.
I have concluded that the Crown is bound by the way in which it conducted the sentence proceedings and that it would not be appropriate to accede the Crown's submissions and re-sentence the respondent. That is especially the case when it also seems that the respondent is making very good progress and there has been no sign of re-offending since the imposition of the sentences under appeal.
Accordingly, although I have found that the sentences imposed by his Honour in respect of these matters, on 8 June 2018, were manifestly inadequate, the Crown has failed to discharge the onus which it carries of persuading the Court that it should not have regard to the residual discretion and intervene to re-sentence the respondent.
It follows that the order which I propose is that the Crown appeal be dismissed.
WALTON J: I agree with Hoeben CJ at CL.
BUTTON J: I agree with Hoeben CJ at CL.

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: 15 October 2018

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