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Supreme Court 21 December 1999

R v Giri & Karki

[1999] NSWSC 1269

Also reported as 109 A Crim R 499
Assault & violenceHomicide
SENTENCING

Citation: R v Giri & Karki [1999] NSWSC 1269
Court: Supreme Court of New South Wales
Date: 21 December 1999
Judge(s): Studdert J

Background

Two Nepalese nationals, convicted of murder following a jury trial, came before Studdert J for sentencing. The victim, a 27-year-old Bangladeshi man, was fatally assaulted outside a Kings Cross nightclub in the early hours of 22 June 1996 after a series of escalating confrontations that began inside the venue.

Both offenders were found to have participated in a joint criminal enterprise in which the victim was knocked to the ground and then repeatedly kicked while lying defenceless and unconscious. The medical evidence established that the victim died from complications of severe head and facial injuries sustained in the assault, though it could not be determined which particular blows caused the fatal brain damage.

At sentencing, two distinct issues arose beyond the ordinary assessment of objective seriousness and subjective circumstances: first, whether the hardship of serving a sentence in a foreign country was a mitigating factor, and second, whether the prisoners' potential liability to deportation upon release was a relevant sentencing consideration.

  • Whether the objective criminality of one offender was materially less than the other, warranting differential sentences
  • Whether the exceptional hardship of serving imprisonment in a foreign country is a relevant mitigating factor in sentencing
  • Whether the prospect of deportation at the end of a minimum term is a matter a sentencing court may take into account

Decision

Studdert J declined to differentiate between the two offenders in assessing their objective criminality. Although one offender's counsel argued that his client became involved later in events and that the other offender was more likely responsible for the most extreme violence, the court found that both prisoners had participated in a savage and cowardly assault, both had kicked the victim as he lay unconscious on the ground, and both possessed the requisite intent for murder. The objective gravity of the offending was assessed as equally serious in each case.

On the question of hardship, the court accepted that serving a sentence in a foreign country, away from family and in circumstances that may be more onerous than for a local offender, can constitute exceptional hardship warranting recognition as a mitigating factor. This principle, derived from the line of Court of Criminal Appeal authority including Ferrer-Esis and Kogelbauer, was applied in each prisoner's favour.

Regarding deportation, all parties agreed, and the court confirmed, that the prospect of deportation upon release is not a matter for the sentencing court. Drawing on the Court of Criminal Appeal's decisions in Liang and Jap, Studdert J held that a foreign national must be sentenced as though they were an Australian citizen, leaving any question of deportation to the executive government and its processes.

Having weighed all objective and subjective circumstances, including the recognition of special circumstances in each case, Studdert J imposed the same total sentence on both offenders: 17 years penal servitude, structured as a minimum term of 12 years and an additional term of 5 years.

Orders Made

  • Each offender sentenced to a minimum term of 12 years penal servitude, commencing 15 September 1999 and expiring 14 September 2011
  • Each offender subject to an additional term of 5 years, commencing 15 September 2011 and expiring 14 September 2016
  • First eligible date for release on parole specified as 15 September 2011 for each offender

Key Takeaways

  • Where medical evidence cannot identify which specific act in a joint criminal enterprise caused death, a jury may convict all participants if each shared the requisite common intention or contemplated the intentional infliction of grievous bodily harm; the sentencing court may then treat all participants' objective criminality as equally serious.
  • Serving a sentence in a foreign country, separated from family and support networks, can constitute exceptional hardship and is a recognised mitigating factor in NSW sentencing, consistent with the Court of Criminal Appeal's established line of authority.
  • The prospect of deportation at the end of a minimum term is not a relevant consideration for the sentencing court; under the authority of Liang and Jap, a foreign national is to be sentenced on the same basis as an Australian citizen.
  • Responsibility for any deportation decision lies with the executive government, not the courts, and Studdert J confirmed this principle applies equally to the Parole Board's later consideration of release under s 17(2) of the Sentencing Act.
  • Special circumstances were found in each case, justifying a minimum term representing less than three-quarters of the total sentence, resulting in a 12-year minimum within a 17-year total.

Legislation and Cases Referenced

Legislation
- Sentencing Act (NSW), s 17(2)

Cases
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Jelks (unreported, NSWCCA, 1 December 1995)
- R v Kogelbauer (1993) 65 A Crim R 357
- R v Brown (unreported, NSWCCA, 13 July 1993)
- R v Shrestha (1990-91) 173 CLR 48
- R v Liang (unreported, NSWCCA, 2 June 1995)
- R v Jap (unreported, NSWCCA, 20 July 1998)