Citation: R v Khamas [1999] NSWCCA 436
Court: NSW Court of Criminal Appeal
Date: 25 November 1999
Judge(s): Hulme J (primary judgment), Sully J, Hidden J (agreeing)
Background
The respondent, a young man with no prior convictions, pleaded guilty in the District Court to two counts of attempted armed robbery and one count of assault. All three charges arose from a single incident in September 1998, in which the respondent and a co-offender waited outside a McDonald's restaurant after closing time and confronted a female manager and a security guard, demanding the restaurant's takings while wielding a replica semi-automatic pistol. The security guard was punched and kicked during the incident.
Judge Moore sentenced the respondent on each count to concurrent two-year terms of periodic detention (a non-custodial form of imprisonment requiring the offender to report to a detention centre on weekends). The Crown appealed, contending the sentences were manifestly inadequate.
Legal Issues
- Whether the sentences of periodic detention imposed by Judge Moore were manifestly inadequate for offences of attempted armed robbery
- Whether Judge Moore made material errors in his sentencing reasoning, including in his assessment of the respondent's admissions, remorse, clinical history, and the impact of imprisonment on his family
- Whether the Court of Criminal Appeal should exercise its discretion to resentence, or dismiss the Crown appeal despite finding error
Decision
The Court found that Judge Moore's sentencing remarks contained multiple identifiable errors. His Honour overstated the significance of the respondent's cooperation with police, describing his initial admissions as "immediate" while overlooking that the respondent had lied when first approached. His Honour also mischaracterised the psychiatric evidence, attributing to Dr Westmore a finding of clinical depression that the doctor had not actually made.
Judge Moore gave maximum weight to the guilty plea without applying the established principle that the degree of leniency available for a plea depends substantially on whether it reflected a genuine recognition of the inevitable. Given that conviction appeared virtually certain on the facts, the weight afforded to the plea was excessive. His Honour also treated the impact of imprisonment on the respondent's family as a mitigating factor without reference to the principle that family hardship is generally irrelevant and can only be considered in mitigation in highly exceptional circumstances, which were not present here.
Hulme J concluded that anything less than the maximum available term of periodic detention for attempted armed robbery in these circumstances was manifestly inadequate. The Court allowed the Crown appeal in respect of the two attempted armed robbery counts and resentenced the respondent accordingly. The appeal against the assault sentence was dismissed, as that penalty was not considered manifestly inadequate when considered in isolation.
Orders Made
- Crown appeal against the two attempted armed robbery sentences: allowed; sentences imposed by Judge Moore quashed
- In substitution: the respondent sentenced on each attempted armed robbery count to concurrent terms of three years imprisonment by way of periodic detention, commencing 28 April 1999, to be served at Parramatta Periodic Detention Centre
- Crown appeal against the assault sentence: dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that, in sentencing for attempted armed robbery, the degree of weight given to a guilty plea must reflect whether the plea arose from a genuine recognition of the inevitable, not simply the maximum leniency available for any plea.
- Sentencing judges must accurately represent the content of expert reports: mischaracterising a psychiatrist's observations as a finding of clinical depression constitutes a material error capable of vitiating sentence.
- A respondent's initial cooperation with police carries reduced mitigating weight where the same respondent lied to officers in the same or subsequent dealings.
- Family hardship caused by imprisonment is, as a general rule, irrelevant to sentencing and may only be taken into account in mitigation in highly exceptional circumstances. That threshold was not met on the facts here.
- In exercising its discretion on a Crown appeal, the Court distinguished an earlier decision where parity considerations had driven a non-custodial outcome, confirming that such decisions do not bind the Court to the same result in materially different circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61 (maximum term for assault)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guidelines for sentencing in armed robbery)
- Winchester (1992) 58 A Crim R 345 (weight of guilty plea where conviction was inevitable)
- Ellis (1986) 6 NSWLR 603 (guilty plea and mitigation)
- R v Byrne (unreported, CCA, 5 August 1998) (family hardship as a mitigating factor)
- Govindin (unreported, referred to in judgment regarding parity and Crown appeals)