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Court of Criminal Appeal 15 October 2018

R v Khoury

[2018] NSWCCA 223

Assault & violenceDomestic & family violence
CRIMINAL LAW POTENTIAL FOR CATASTROPHIC CONSEQUENCES APPLICATION OF RESIDUAL DISCRETION CROWN APPEAL DISMISSED.

Citation: R v Khoury [2018] NSWCCA 223
Court: Court of Criminal Appeal, New South Wales
Date: 15 October 2018
Judges: Hoeben CJ at CL; Walton J; Button J

Background

The respondent pleaded guilty in the District Court to two serious offences arising from domestic violence incidents against his former partner. The first involved setting fire to the front door of her unit in the early hours of the morning while she, her mother, and their infant child were inside. The fire caused significant damage and narrowly avoided catastrophic consequences. The second involved the respondent attending the victim's new address some months later and aggressively bashing on the door while screaming abuse. Three further intimidation offences were taken into account on a Form 1.

The sentencing judge granted a Griffiths Remand (a deferral of sentencing under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the offender to demonstrate rehabilitation progress), directed an Intensive Correction Order (ICO) assessment, and ultimately sentenced the respondent to a 2-year ICO for the arson count and a 12-month suspended sentence for the break and enter count.

The Director of Public Prosecutions appealed on a single ground: that both sentences were manifestly inadequate.

  • Whether the sentences imposed were manifestly inadequate given the objective seriousness of the offences, particularly the arson involving a domestic setting with an infant present.
  • Whether the sentencing judge gave proper weight to general and specific deterrence.
  • Whether excessive weight was placed on the respondent's prospects of rehabilitation.
  • Whether, even if the sentences were manifestly inadequate, the Crown's conduct during sentencing proceedings activated the residual discretion so as to preclude the Court of Criminal Appeal from intervening to re-sentence.

Decision

Hoeben CJ at CL (with whom Walton J and Button J agreed) found that the sentences were indeed manifestly inadequate. The arson offence in particular was objectively serious: it was committed against a domestic partner and their shared infant child in the middle of the night, with the potential for catastrophic harm. The sentencing judge gave disproportionate weight to rehabilitation and insufficient weight to general and specific deterrence.

However, the critical question became whether the Court should exercise its residual discretion to decline to intervene, notwithstanding that finding. The residual discretion is a well-established principle in Crown appeals: even where inadequacy is established, an appellate court retains a discretion not to re-sentence where doing so would produce an unjust outcome in the circumstances.

The Court placed significant weight on the Crown's conduct throughout the sentencing proceedings. At each material stage, including the granting of the Griffiths Remand, the direction of the ICO assessment, and the final sentencing hearing, the Crown was represented and raised no objection. The Crown never submitted that an ICO was inappropriate, never argued that full-time imprisonment was required, and never appealed the Griffiths Remand (which was itself an available avenue). The Court held that the Crown was bound by how it conducted those proceedings.

The Court also noted that the respondent had been making very good progress under the ICO and had not re-offended since sentence. In those circumstances, it would have been unjust to now impose full-time custody. The appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that even a sentence found to be manifestly inadequate will not automatically result in re-sentencing: the residual discretion remains available to prevent injustice.
  • Where the Crown is represented throughout sentencing proceedings and raises no objection to a proposed sentencing option, including an ICO, it may be bound by that conduct on a subsequent appeal.
  • The residual discretion in Crown appeals is not merely theoretical: this decision demonstrates it operating to defeat an appeal where the Crown's acquiescence at first instance materially shaped the sentencing outcome.
  • A Griffiths Remand is itself an interlocutory order that the Crown may appeal; failing to do so at the time can weigh against intervention on a later sentence appeal.
  • Appellate courts may take into account post-sentence conduct, such as compliance with an ICO and absence of re-offending, when deciding whether to exercise the residual discretion not to intervene.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 113(2), 196(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 12
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346
- Griffiths v R [1977] HCA 44; 137 CLR 293
- Patsan v R [2018] NSWCCA 129
- R v Farrell [2014] NSWCCA 30
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
- R v Harris [2015] NSWCCA 81
- R v Hopoi [2014] NSWCCA 263
- R v JRD [2007] NSWCCA 55
- R v Merillo [2017] NSWCCA 173
- R v Porte [2015] NSWCCA 174
- Yucebasoglu v R [2015] NSWCCA 226