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Court of Criminal Appeal 24 June 2014

Khawaja v R

[2014] NSWCCA 80

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING APPEAL

Citation: Khawaja v R [2014] NSWCCA 80
Court: Court of Criminal Appeal, NSW
Date: 24 June 2014
Judges: Leeming JA, Button J, RS Hulme AJ

Background

The appellant had been sentenced in the District Court on two offences of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum of 20 years' imprisonment. Both offences involved armed robberies at 7-Eleven stores committed within a week of each other in January and February 2012. The sentencing judge imposed an aggregate sentence of 6 years with a non-parole period of 4 years.

The sentencing judge purported to apply the aggregate sentencing provisions under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). He indicated notional starting points of 5 years per offence before applying a 25% discount for the early guilty plea, arriving at a combined hypothetical aggregate of 6 years. The precise individual indicative sentences after discount were not expressly stated.

The appellant sought leave to appeal on three grounds: that the sentencing judge misapplied the aggregate sentencing provisions; that the degree of accumulation was manifestly excessive; and that the judge had failed to give adequate effect to a finding of special circumstances.

  • Whether the sentencing judge's approach complied with the obligation under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to "indicate" the sentence that would have been imposed for each individual offence
  • Whether the degree of accumulation implicit in the aggregate sentence of 6 years was manifestly excessive
  • Whether the non-parole period of 4 years gave adequate effect to the finding of special circumstances, particularly given the appellant's youth and history of drug use

Decision

Ground 1: Non-compliance with s 53A

The Court accepted that the sentencing judge had not strictly complied with s 53A(2). By stating notional starting points of 5 years per offence and then applying a 25% discount to the aggregate rather than to each individual sentence, the judge left the indicative individual sentences to be inferred rather than stated. The Court held this fell short of the statutory requirement to "indicate" the individual sentences. However, s 53A(5) expressly provides that an aggregate sentence is not invalidated by such a failure. The Court found no evidence that the non-compliance produced a sentence greater than it otherwise would have been, and dismissed this ground.

Ground 2: Manifest excess in the degree of accumulation

The Court reasoned that, had the correct approach been taken, the indicative sentence for each offence after the 25% discount would have been 3 years and 9 months. Against that backdrop, an aggregate head sentence of 6 years was not manifestly excessive. The degree of accumulation implicit in that figure was within an acceptable range.

Ground 3: Adequacy of the non-parole period given special circumstances

The sentencing judge had found special circumstances and reduced the non-parole period below the statutory default. The Court found no error in this exercise of discretion. RS Hulme AJ rejected the submission that a longer balance of term was necessary to foster rehabilitation, noting the absence of any evidence to support that proposition and observing that the appellant had already addressed his physical addiction during custody and had participated in drug and alcohol programs in prison.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must expressly state the individual sentence that would have been imposed for each offence, rather than leaving it to be calculated by inference from a discount applied to a combined notional figure.
  • Non-compliance with s 53A(2) does not invalidate an aggregate sentence, by reason of s 53A(5), provided the non-compliance cannot be shown to have produced a higher sentence than would otherwise have resulted.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the appropriate reference point for assessing accumulation is the individual indicative sentences after applying all relevant adjustments, including guilty plea discounts.
  • A finding of special circumstances does not automatically require a substantially extended balance of term; the sentencing court retains a broad discretion, and assertions about rehabilitation needs unsupported by evidence carry little weight.
  • Sufficient evidence of a prisoner's rehabilitation efforts during custody (such as participation in drug and alcohol programs) does not, on its own, compel a finding that the balance of term imposed was inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- R v Hammond (2000) 118 A Crim R 66
- R v Harris [2007] NSWCCA 130; 171 A Crim R 267
- R v Wheeler [2000] NSWCCA 34