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17
Court of Criminal Appeal 6 December 2000

REGINA v. KHOUZAME

[2000] NSWCCA 505

Assault & violenceHomicide
CRIMINAL LAW SENTENCE APPEAL COURT OF CRIMINAL APPEAL APPEAL BY WAY OF REHEARING OR FOR ERROR FACT FINDING

Citation: Regina v Khouzame [2000] NSWCCA 505
Court: New South Wales Court of Criminal Appeal
Date: 6 December 2000
Judge(s): Priestley JA, Greg James J, Kirby J

Background

The applicant was convicted in the Supreme Court of New South Wales of manslaughter and assault occasioning actual bodily harm, following an incident in which he armed himself with a garden stake and struck a fatal blow to a young man who had been talking to girls near his home. Grove J sentenced him to five years imprisonment (with a three-year minimum term and two-year additional term) for the manslaughter, and a three-month fixed term for the assault.

The applicant sought leave to appeal against the sentences on the grounds that the sentencing judge had made erroneous factual findings, including findings about the absence of genuine remorse and the applicant's true intentions, which led to an excessive sentence.

The central issue on appeal was the extent to which the Court of Criminal Appeal could revisit the sentencing judge's factual findings and discretionary judgment.

  • Whether the Court of Criminal Appeal, on an appeal under sections 5 and 6 of the Criminal Appeal Act 1912, may substitute its own findings of fact for those of the sentencing judge in the absence of identified error.
  • Whether the principles governing appellate review of discretionary decisions, as stated by the High Court in House v The King (1936) 55 CLR 499, apply to sentencing appeals.
  • Whether Grove J made identifiable errors in his factual findings regarding the applicant's remorse and intent, such that the sentence was excessive.

Decision

Greg James J (with whom Priestley JA and Kirby J agreed) held that the House v The King principles apply to sentencing appeals under the Criminal Appeal Act 1912. Because sentencing requires the exercise of judgment and evaluation on which minds can legitimately differ, it closely resembles a discretionary decision. Accordingly, an appellate court will not disturb a sentence simply because it might have reached a different result; it must first identify an established error, such as the adoption of an incorrect principle, reliance on irrelevant matters, failure to consider material matters, or a mistake as to the facts.

On the specific factual findings challenged, the Court found no such error. Grove J's conclusions that the applicant lacked genuine remorse and had formed an intention to drive the visiting youths away without reasonable cause were open on the evidence before him. Greg James J observed that he might personally have reached the same conclusions, but emphasised that the appellate function does not permit substitution of the appellate court's own view on the facts in the absence of established error.

The Court also rejected the submission that the sentence was so disproportionate as to itself reveal error, having regard to the range of sentences available for manslaughter on facts of that nature. Notwithstanding Grove J's adverse findings on remorse, the sentencing judge had given the applicant substantial credit for prior good character and found him unlikely to reoffend, reducing the weight placed on personal deterrence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the House v The King principle applies to sentencing appeals under sections 5 and 6 of the Criminal Appeal Act 1912: an appellate court cannot interfere with a sentence merely because it would have imposed a different one, without first identifying an established error.

  • Errors that may justify appellate intervention in sentencing include adopting an incorrect principle, giving weight to extraneous or irrelevant matters, failing to consider material matters, or making a mistake as to the facts.

  • No error was established on the facts of this case: the sentencing judge's findings as to the absence of genuine remorse and the applicant's intent were open on the evidence, and the Court of Criminal Appeal declined to substitute its own assessment.

  • A sentence may also reveal error if it is so disproportionate as to be outside the available range on the facts, but that threshold was not reached on the manslaughter sentence imposed here.

  • Where a sentencing judge declines to find genuine remorse but still credits the offender with prior good character and a favourable rehabilitation prognosis, the resulting sentence is not necessarily excessive merely because leniency for remorse was withheld.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5 and 6
- Criminal Code (WA)

Cases:
- House v The King (1936) 55 CLR 499
- Norbis v Norbis (1986) 161 CLR 513
- Olbrich (1999) 166 ALR 331
- Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47
- State Rail Authority v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306
- Dinsdale [2000] HCA 54
- AB [1999] HCA 46
- Fleming (1998) 197 CLR 250
- Gallagher (1986) 160 CLR 392
- Mickelberg (1989) 167 CLR 259
- Griffith (1976-77) 137 CLR 293
- Harris (1954) 90 CLR 652
- Builders Licensing Board v Sperway Constructions (Syd) Pty Limited (1976) 135 CLR 616
- Turnbull v NSW Medical Board [1976] 2 NSWLR 281
- Allen (1992) 27 NSWLR 398
- Kurtic (1996) 85 A Crim R 57
- Scognamiglio (1991) 56 A Crim R 81
- Rose [1999] NSWCCA 327
- Histollo Pty Limited v Director General National Parks & Wildlife Service (1998) 45 NSWLR 661