REGINA v. KHOUZAME [2000] NSWCCA 505

1 PRIESTLEY, JA: I agree with Greg James, J. 2 GREG JAMES, J: The applicant seeks leave to appeal against a sentence of five years imprisonment comprising three years minimum term, with an additional term of two years and against another sentence of three months fixed term, both imposed upon him in the Supreme Court of New South Wales by Grove, J. 3 The first sentence was imposed upon him in respect of his conviction on one count of manslaughter and the second in respect of his conviction for assault occasioning actual bodily harm. 4 The maximum penalty for manslaughter is 25 years imprisonment. The maximum penalty on the assault charge is five years imprisonment. 5 The applicant had been in custody for about a month prior to having been released on bail prior to his trial. 6 He had originally been charged with murder and the verdict of not guilty of murder but guilty of manslaughter led to the imposition of the first sentence to which I have referred. 7 The learned trial judge gave extensive reasons for the sentences he imposed. On the first count, he found the facts to be that the applicant killed the victim by striking him on the head with a substantial piece of wood which had apparently been used as a garden stake and on the second count that thereafter the applicant and certain of his relatives attacked another man occasioning him injuries, including a bloody and swollen face and bruising on his arm and back. 8 These events occurred after some young boys of Turkish ethnicity had chatted to some girls in the vicinity of the applicant's home. Another young boy apparently took objection to his sister conversing with those boys. His report of what was going on attracted the applicant to the front balcony of the upper storey of his house and an exchange of verbal abuse occurred. The applicant demanded in forceful terms that the boys leave the area. 9 When the applicant perceived that the boys were not going to depart immediately, he formed an intent to drive them away. He descended to the street, stripped off his upper garment, armed himself with the garden stake. 10 The learned trial judge found no occasion for the applicant to believe that there had been by the boys any misconduct or provocative incident, or any matter which could reasonably cause an apprehension that the boys were about to misconduct themselves. There was no suggestion that any unwelcome attention was being paid to the girls. 11 The girl about whom the other young boy had made particular complaint was not a member of the family of the applicant but was a member of the same ethnic group as the applicant. The boys were of a different ethnic group. 12 His Honour rejected the offender's complicity in a statement made in his undissenting presence by his brother, "Don't bring any fucking Turks into the street" but he concluded that the offender had formed the intention to drive the visiting youths away from the street. He had regard to these matters and to the claim of self-defence as a useful guide to the reality of the offender's recognition of responsibility. 13 His Honour was of the view that:- "Save the rantings of a 10 year old boy, the prisoner had been given no cause to form such an intention." 14 His Honour was referring to the intention to drive the visiting youths away from the street. 15 His Honour rejected that the prisoner had feared attack from the youths and the defence of self-defence, of course, must have been rejected by the jury. 16 His Honour concluded that it was established beyond reasonable doubt that the prisoner struck one blow to the victim which occasioned that person's death. He held:- "It was a blow which is adequately described by common parlance as a 'king hit'." 17 He rejected also a contention that the victim on the second count had initiated the violence involved in that matter by placing the applicant in a headlock. 18 His Honour, as he was bound to because of the verdict, rejected that the blow had been struck intending to kill or recklessly as to the prospect of killing or with intent to cause really serious injury. He sentenced the applicant on the basis that the killing was the consequence of an unlawful and dangerous act by the prisoner. It was open to his Honour to find the blow was struck without the applicant adverting to whether serious injury might be caused or not. His Honour, whilst having regard to a post-mortem measurement which suggested the victim had a greater than average vulnerability to the effects of a blow on the head, concluded:- "But this was not a case of a moderate blow causing unexpectedly grave damage, the violence in this instance was a full-bodied blow with a substantial weapon." 19 His Honour referred to the applicant's lack of prior convictions, his close and supportive family and the favourable impression he gave to the probation officer and the psychologist, Ms. Robilliard. His Honour rejected, as, of course, in accordance with the verdicts he had to, suggestions put on the applicant's behalf that his conduct was in the exercise of lawful self-defence. He was not persuaded that the content of various letters tendered on behalf of the applicant established profound remorse for the victim's death and did not accept the opinion of the psychologist in that regard. In his remarks on sentence, his Honour treated that matter in the following way:- "I accept the assertions in the various letters comprising the exhibit mentioned that, these crimes apart, the prisoner is a person of good character. They have not persuaded me that he is contrite for his offences and I have concluded that he clings to the myth that his action was justified in whole or in part by some need for self-defence. The consequence of that finding is not, of course to increase sentence but I do not make the finding invited by counsel that the prisoner has genuine remorse and contrition so as to attract particular leniency." 20 Notwithstanding that his Honour did not find genuine remorse and contrition, and did find the intent to which I have referred, his Honour did accept that generally the offender had been of prior good character and gave him the benefit of that finding to a very great extent. He said:- "As I have said, the prisoner's prior good character is supported by these referees together with the opinions of the probation and parole officer and the psychologist Ms. Robilliard. The combination promotes a finding which I make that the prisoner is so far as I can predict, unlikely to re-offend. In terms of the question of rehabilitation there should be a determination favourable to the prisoner. The need for sentence to reflect personal deterrence is therefore of a low order." 21 Turning to general deterrence, his Honour accepted the necessity to condemn the use of a significant implement to assault an unarmed youth and that the community would expect an assault of that kind leading to death to attract objectively an appropriate degree of punishment. 22 His Honour found special circumstances in the offender's youth, that this was the first custodial sentence and that on release it would be desirable for him to have objective assistance over a significant period from a person independent of his family to guide him in accepting the reason for his imprisonment and to assist him to re-enter the community with an appropriate attitude. These circumstances justified his Honour's departure from the statutory proportion. 23 The sole ground assigned for the application is that:- "The sentence imposed by the learned trial judge was manifestly excessive." 24 This ground does not assert any particular error, but on its face asserts that the sentence passed is so disproportionate to the circumstances that it is in error, whether simply by reason of the result being wrong, or because of some otherwise undisclosed error of principle in arriving at that result. 25 The written submissions of the applicant challenge particular aspects of his Honour's findings. In particular, his Honour's characterisation of the fatal blow as "a king hit" and the appropriateness of his Honour's observation that this was "not a case of a moderate blow causing unexpectedly grave damage … [but] was a full-bodied blow with a substantial weapon". Secondly, it is contended that his Honour erred in finding that the applicant did not have "genuine remorse and contrition such as to attract particular leniency". Each matter raises questions of fact in the context of submissions that the language employed by his Honour to describe the phenomenon to which he was referring in his judgment overstate the matter when regard is had to the relevant evidence. 26 Particularly in relation to the "king hit", reference is made to the deceased's "thinner than usual" skull in the context of a submission that, although some force would have been required to fracture it, it is asserted that the necessary degree of force to occasion the injuries that were inflicted, in the context of the evidence of the position of the deceased to the applicant at the time of striking the blow, did not permit one to draw the conclusion his Honour did, particularly in the context that it must be accepted in the verdict of the jury that an intention to inflict grievous bodily harm was not established. 27 In this regard it was submitted that it was necessary for his Honour to be satisfied beyond reasonable doubt that a "full-bodied blow" had been delivered as such was a matter of aggravation relevant to sentence and in that regard The Queen v. Olbrich (1999) 166 ALR 331 at para.24-25 was cited for the proposition that his Honour had to be satisfied beyond reasonable doubt. It was put that there was a reasonable possibility that it was "a case of a moderate blow causing unexpectedly grave damage" and that his Honour had erred in finding against that. 28 With respect to the matter of genuine remorse or contrition, it was contended that his Honour's finding was against the overwhelming weight of the evidence. It was submitted that the passages to which his Honour made reference in the testimonials were taken out of context and that what the applicant put and his counsel put on his behalf at trial did not accord with such a finding. The passages of evidence cited in support of this submission clearly illustrate that the applicant had not wanted "this" to happen and that he felt sorry for the victim's family and his own family, "putting everyone through this". He said he had never wanted to hurt anyone in his life including the victim. Reference is made to evidence from other witnesses concerning his regrets and sorrow for what had happened and that the behaviour in question was "uncharacteristic". Passages in support of the submission from the Probation and Parole report and psychologist's report were also cited. 29 There were, however, also passages in the evidence from which, in my view, his Honour was entitled to draw the conclusion that he was not satisfied that the applicant was genuinely remorseful and contrite as showing insight into why the law proscribed his conduct and such as to support his Honour's view that his attitude did not merit particular leniency by reason of contrition. As also there was evidence capable of founding a conclusion that an unprovoked forceful blow was struck with the stake upon an unsuspecting victim. 30 In my view it was open to his Honour to reach each of the challenged findings of fact. I do not consider that the finding as to the nature of the blow struck is a circumstance of aggravation such as Olbrich (supra) refers to and as is necessary to be proved beyond reasonable doubt. However, even if it was, in the context of the evidence in this case, in my view, it was open to his Honour to reach such a conclusion. Merely because another possibility described as reasonable is open on the evidence, his Honour was not precluded from reaching the view that that possibility was excluded to his satisfaction. 31 Alternatively, even if it was open to his Honour to reach the conclusions that he did, it was contended by the applicant's oral submissions that, in the light of the task entrusted to this court, on such an appeal under the Criminal Appeal Act 1912, it was necessary for this court to consider on the evidence whether it would make the same findings. 32 This contention is in the teeth of the way in which the court has, since 1912, construed the legislation as directing it in the manner of disposition of applications for leave to appeal against sentence. The submission goes so far as to contend that on a proper construction of ss.5 and 6 of the Criminal Appeal Act it is incumbent upon the court to undertake a review, revision or re-hearing on the materials below and on such materials as are admitted by way of fresh evidence to reach its own findings and its own conclusions as to the sentence in the light of them.

33 Section 5 of the Criminal Appeal Act 1912 confers upon persons convicted on indictment a right to appeal under that Act to this court (s.5(1)(c)) with the leave of the court against the sentence passed on the person's conviction. Section 6 provides for the determination of appeals in ordinary cases and by subsection (3) it is provided that:- "On an appeal under s.5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 34 Our attention was drawn to Coal & Allied Operations Pty. Limited v. Australian Industrial Relations Commission [2000] HCA 47 in the judgment of Gleeson, CJ., Gaudron and Hayne, JJ. (at para.68):- "Appeal, as such, was unknown to the common law. It is a creature of statute. It is not possible to adopt any hard and fast or universal approach to the process called 'appeal' in a particular statute. The word encompasses 'different litigious processes which have few unifying characteristics'. No fewer than six forms of a procedure loosely called an 'appeal' have been identified. Within these broad categories are various subcategories reflecting the particular nature of the 'appeal' in question, the issues which the appeal presents and the purpose for which it exists, derived from the language in which it is expressed. In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies. The range and variety of the decisions that may, with leave, be the subject of an appeal under the Act (under s.45(1) of the Act) is such as to suggest that generalities will be dangerous. So different are the various decisions amenable to appeal that it will only be of limited help to catalogue the process within the broad class of an 'appeal in the strict sense' or an 'appeal by way of re-hearing', as if, without more, such classification dictates the way in which the particular appeal must be approached. True, such broad categories will offer a limited measure of guidance. But it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play. It is necessary to make this point because some of the discussion of the nature of the appeal to the Full Bench of the Commission, both within the Commission and in the reasons of the Full Court, might, on a superficial reading, be taken to suggest that there is a particular classification of appeals generally, being 'appeals against discretionary decisions', which is in some way to be distinguished from 'appeals by way of re-hearing'. This is a false dichotomy. Many appeals by way of re-hearing involve appeals from discretionary decisions. The re-hearing identifies the materials upon which the appellate body acts. It will have relevance for any supervening changes in the facts or in the applicable law. On the other hand, the character of the decision under appeal (as discretionary, interlocutory, final or otherwise) will govern the approach to be taken by the appellate body in discharging its function. In the case of discretionary decisions, that approach in the case of an appeal is one of caution and restraint. This is because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions. It is rare that there will be only one admissible point of view. Disputation and litigation are expensive, distracting and time-consuming. Therefore, the law, for policy reasons, recognises these features of discretionary decisions. Except in appeals involving a complete hearing de novo, all other appeals will approach with restraint the reconsideration of discretionary decisions which are based on the same material that was before the primary decision-maker. Because of the necessity to ascertain the ambit of the appellate function in a particular case by reference to the legislation in question, it is obviously useful where the task of classification has already occurred to accept the guidance of a previous decision." 35 In support of the propositions therein referred to, their Honours cited State Rail Authority of New South Wales v. Earthline Constructions Pty. Limited (In Liq.) (1999) 73 ALJR 306 and cases therein cited, also Turnbull v. New South Wales Medical Board [1976] 2 NSWLR 281; Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Limited (1976) 135 CLR 616; Clarke & Walker Pty. Limited v. Secretary Department of Industrial Relations (1985) 3 NSWLR 685 and House v. The King (1936) 55 CLR 499; Norbis v. Norbis (1986) 161 CLR 513 (see also Cranssen v. The King (1936) 55 CLR 509). 36 Although House (supra) was not concerned with a statutory provision in terms similar to that now in question but one conferring a full right of appeal on law and fact, nonetheless, the oft quoted passage at 504-505 in the decision of the majority has long been accepted as applicable to appeals brought under s.5 of the Criminal Appeal Act against sentence. That passage reads:- "But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on court of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone, LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts ( Regina v. Sidlow (1908) 1 Crim. App. R. 28 at 29). Lord Reading, LCJ. Said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong ( Regina v. Wolff (1914) 10 Crim. App. R. 107). Lord Hewart, LCJ. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice ( Regina v. Dunbar (1928) 21 Crim. App. R. 19 at 20). See, further, Skinner v. The King (1913) 16 CLR 336 at 340 per Barton, J. and at 342 per Isaacs, J. and Whittaker v. The King (1928) 41 CLR 230 at 244-250." 37 Other appellate provisions of the Criminal Appeal Act have not been held to provide for a re-hearing. See, eg., Griffiths v. The Queen (1976-77) 137 CLR 293 at 300 per Sir Garfield Barwick, CJ. I have referred to some of the authorities in Histollo Pty. Limited v. Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661. See also Kurtic v. The Queen (1996) 85 A. Crim. R. 57 at 59-60; Regina v. BWM (1997) 91 A. Crim. R. 260; Harris v. The Queen (1954) 90 CLR 652. 38 In Regina v. O'Donoghue (1988) 34 A. Crim. R. 397, Hunt, J. (as he then was), with whom Carruthers and Wood, JJ. agreed, observed:- "It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v. Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co. Pty. Limited v. Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v. Merritt & Roso (1985) 19 A. Crim. R. 360 at 372-373; Regina v. Kyriakou (1987) 29 A. Crim. R. 50 at 60-61." 39 His Honour's observations in that regard have been approved in this court on numerous occasions including in Regina v. Altham (unreported 18 June 1992); Regina v. Chapple (unreported 14 September 1993); Regina v. Hawkins (unreported 17 December 1992); Regina v. Allen (1992) 27 NSWLR 398. In Regina v. Rose [1999] NSWCCA 327 and Regina v. Scognamiglio (1991) 56 A. Crim. R. 81, the court concluded that the appropriate course to take in the context of examination of a factual finding below was to consider whether the trial judge had failed to weigh the facts properly in their true relation to one another because this may show that the trial judge had acted in a wrong principle. 40 In all of these cases, the approach taken in House (supra) was that which commended itself to the court. Because the Criminal Appeal Act does not stipulate the grounds upon which the Court of Criminal Appeal can set aside a sentence, it is the approach in House (supra) which should be taken: see AB v. The Queen [1999] HCA 46 and the approval expressed by the High Court for what had been said by Hunt, J. (as he then was) in O'Donoghue (supra), in Fleming v. The Queen (1998) 197 CLR 250. This court would accept the guidance of previous decisions on this question of classification even if it were not by precedent bound to proceed in the way I have described. 41 In accord with that approach, it is only if the judge "mistakes the facts" in the sense that these authorities have referred to that the findings of fact may be set aside and in that event, the court may reach the opinion that some other sentence should have been passed and might pass that other sentence should it be warranted in law. 42 The existence of a power in the court to receive fresh evidence, even if not strictly in accord with the principles expressed in Regina v. Gallagher (1986) 160 CLR 392) and Regina v. Mickelberg (1989) 167 CLR 259, in cases of applications for leave to appeal against sentence in which the reception of that evidence is thought necessary to place the facts as they were before the primary judge in the context that should have been made known to him at that time does not derogate from the conclusion I have expressed. 43 I am strongly confirmed in my conclusion by the recent decision of the High Court in Dinsdale v. The Queen [2000] HCA 54 where that court was called upon to construe s.689(3) of the Criminal Code (WA) which, whilst analogous to s.6(3), is not in precisely the same terms. The Chief Justice and Hayne, J. held:- "It is desirable to restate some propositions which are fundamental to criminal appeal but which may sometimes be obscured by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the court is given, and the circumstances in which those powers may be exercised. In this particular case, the Court of Criminal Appeal of Western Australia was exercising jurisdiction given by s.687(1) of the Criminal Code (WA) to hear and determine a prosecution appeal against sentence brought pursuant to s.688(2). That latter sub-section provides:- 'An appeal may be made to the Court of Criminal Appeal on the part of the prosecution - … (d) against any punishment imposed or order made in respect of a person convicted on indictment …' 44 They concluded, that in relation to a provision so expressed:-

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