Khudadadi v R

1. [1]

   PRICE J: Amir Khan Khudadadi (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court of NSW by Buscombe DCJ (“the judge”) on 11 June 2020 in relation to an offence he committed on 8 November 2017.

2. [2]

   Upon arraignment in the District Court, the applicant pleaded not guilty to the following counts:

   1. (1)

      On 8 November 2017, at South Wentworthville in the State of New South Wales, the applicant wounded Sayed Hosseini (“the victim”) with intent to cause grievous bodily harm to him, contrary to s 33(1)(a) of the Crimes Act. The maximum penalty for this offence is 25 years’ imprisonment, with a standard non-parole period of 7 years’ imprisonment.

   2. (2)

      On 8 November 2017, at South Wentworthville in the State of New South Wales, the applicant did wound the victim and in doing so, was reckless as to causing actual bodily harm to the victim, contrary to s 35(4) of the Crimes Act. Count 2 was charged in the alternative.

3. [3]

   After a trial lasting four days, the jury returned a verdict of guilty on the first count on 15 November 2019. The judge sentenced the applicant to three years’ imprisonment with a non-parole period of two years. The sentence commenced on 11 June 2020 and expires on 10 June 2023, with the non-parole period expiring on 10 June 2022. There was no appeal against the conviction.

Grounds of Appeal

1. [4]

   The notice of appeal identifies the following grounds:

The Sentence Proceedings

1. [5]

   The sentence proceedings were heard on 11 June 2020 before the judge, during which the Crown tendered a sentencing assessment report.

2. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   The applicant has no prior criminal history.

The Remarks on Sentence

1. [11]

   The judge found the following facts which were consistent with the verdict of the jury:

2. [12]

   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”.

3. [13]

   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.

4. [14]

   His Honour ultimately found the offending to be “a little below the notional mid-range”.

5. [15]

   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.

6. [16]

   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.

7. [17]

   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”.

8. [18]

   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”.

9. [19]

   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

1. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

   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.

7. [26]

   Section 22A of the CSPA is as follows:

8. [27]

   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.

9. [28]

   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]

10. [29]

    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]:

11. [30]

    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.

12. [31]

    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.

13. [32]

    No submission was made to the judge concerning s 22A and the applicant has not established that there has been a serious injustice.

14. [33]

    I would reject Ground 1 of the appeal.

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

1. [34]

   The applicant submitted that his subjective circumstances and the objective criminality justified a lower sentence than was imposed.

2. [35]

   The applicant referred to the judge’s findings that:

   1. (1)

      The offence was, essentially, spontaneous with little to no planning;

   2. (2)

      There had clearly been some animosity between the applicant and the victim a short time before the commission of the offence;

   3. (3)

      The weapon, being a kitchen knife, was used;

   4. (4)

      The level of violence was “significant”;

   5. (5)

      The injuries were not life-threatening, but the victim was required to undergo surgery; and

   6. (6)

      The nerves and tendons of the victim’s hands were not damaged, and the muscles did not require repair.

3. [36]

   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. [37]

   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. [38]

   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. [39]

   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.

7. [40]

   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]

8. [41]

   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]:

9. [42]

   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.

10. [43]

    The judge sympathetically took into account the applicant’s subjective case, including his background, and found special circumstances.

11. [44]

    His Honour’s rejection of the applicant’s submission for the sentence to be served by an ICO was open to his Honour.

12. [45]

    In my view, the applicant has not demonstrated that the sentence imposed was unreasonable or plainly unjust.

Orders

1. [46]

   The orders I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [47]

   HAMILL J: I agree with Price J.

3. [48]

   IERACE J: I also agree with Price J.