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Court of Criminal Appeal 9 October 2000

R v KANJ

[2000] NSWCCA 408

Also reported as [2000] 118 A Crim R 329
Assault & violenceDomestic & family violence

Citation: R v KANJ [2000] NSWCCA 408
Court: NSW Court of Criminal Appeal
Date: 9 October 2000
Judge(s): Barr J; Hulme J

Background

Following a jury trial in the District Court, the applicant was convicted of two serious offences: detaining his wife with intent to hold her for his advantage, and maliciously wounding a man named Hussein Issa. The sentencing judge, Karpin DCJ, imposed five years' penal servitude (with a three-year minimum term) on the first count and a concurrent fixed term of three years on the second count.

The offences arose from the applicant's jealousy over his wife's contact with Mr Issa. The applicant used trickery to lure his wife to his premises, detained her by intimidation until she agreed to help him, and then used her to gain entry to Mr Issa's home around midnight. Once inside, the applicant assaulted Mr Issa with a baseball bat and a knife, inflicting cuts to his face and throat. Mr Issa's injuries were ultimately superficial, described by medical evidence as the result of considerable good fortune.

The applicant sought an extension of time to seek leave to appeal against the sentences, arguing that the sentencing judge had made a number of identifiable errors.

  • Whether the applicant's cultural and religious background (as a Lebanese Muslim male) should have been taken into account as a mitigating factor relating to emotional stress
  • Whether the victim's (his wife's) forgiveness and desire that the applicant not be imprisoned should have led to a reduced sentence
  • Whether the sentencing judge applied the principle against "double counting" (from Pearce v The Queen) incorrectly by using the applicant's conduct in one offence as an aggravating feature of the other
  • Whether the minimum term of three years, for a man with no prior criminal record, was manifestly excessive
  • Whether the applicant's inability to speak English was a factor the sentencing judge had failed to consider

Decision

The Court rejected the submission that the applicant's Lebanese Muslim background warranted special mitigation. No evidence had been placed before the sentencing judge to establish any identifiable characteristic relevant to this argument, and counsel ultimately conceded as much. The Court of Criminal Appeal found it inappropriate to take judicial notice of such characteristics, observing that the emotions of jealousy and a desire for revenge are widely distributed across the general population.

On the question of the wife's forgiveness, Barr J accepted the principle, drawn from R v Glen and R v Bradford, that victims' wishes carry little weight in sentencing. The Court noted that R v Bradford arose from quite different facts and that the principle required some caution in its application, but concluded that the sentencing judge had not erred in giving the wife's forgiveness limited significance.

The Court rejected the "double counting" submission under Pearce v The Queen. Barr J reasoned that the trickery used to detain the wife and the subsequent use of her to gain entry to Mr Issa's home were inseparable parts of the criminal conduct underlying each respective offence. The sentencing judge was entitled to consider those facts when sentencing for each count individually.

As to manifest excess and the applicant's lack of English, the Court found no error. The offences were very serious, and the sentences fell comfortably within the proper range of the sentencing discretion. On the language point, Barr J accepted that limited English could be a relevant hardship but was satisfied the sentencing judge had not overlooked it, noting that the overall reasonableness of the sentence supported that inference.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • Courts are not entitled to take judicial notice of cultural or racial characteristics said to produce emotional stress without evidentiary foundation, and the absence of such evidence will generally be fatal to that ground of appeal.
  • A victim's forgiveness and wish that an offender not be imprisoned carry little weight in sentencing; the principle is well settled, though it requires contextual care in its application.
  • Under Pearce v The Queen, the prohibition on double counting does not prevent a sentencing court from considering conduct that forms an inseparable part of the circumstances of each distinct offence when sentencing for those offences separately.
  • No error was established in the sentencing judge's failure to explicitly mention an offender's lack of English in remarks on sentence, where the overall sentence imposed was otherwise reasonable.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a minimum term of three years for offences of this seriousness was well within the proper sentencing range, even for a first offender.

Legislation and Cases Referenced

Cases:
- R v Glen, Court of Criminal Appeal, 19 December 1994 (unreported)
- R v William Charles Bradford, Court of Criminal Appeal, 6 May 1988 (unreported)
- R v Rowe (1996) 89 A Crim R 467
- Pearce v The Queen (1998) 194 CLR 610

Legislation: No specific legislation was identified in the provided text, though the offences relate to provisions governing detaining a person with intent and malicious wounding under New South Wales criminal law as it stood at the time.