Citation: R v Khouchaba [2019] NSWDC 338
Court: District Court of New South Wales
Date: 21 June 2019
Judge(s): Bennett SC DCJ
Background
The offender was one of three women involved in a violent home invasion in the early hours of 23 April 2017. The victim had hosted a casual gathering at her Villawood home when the offender and two co-offenders entered uninvited through a sliding door, apparently in pursuit of a dispute unrelated to the victim. One co-offender struck the victim with a vodka bottle, breaking it on her face, and also used a stick during the attack. The victim suffered injuries and was taken to Liverpool Hospital.
The offender's precise role was less severe than that of her co-offenders. The Crown conceded it could not prove beyond reasonable doubt that she had struck the victim with a bottle or any implement. Her conduct was found to consist of falling on the victim and preventing her from getting up during the assault.
Originally committed on a more serious charge, the offender ultimately pleaded guilty on 3 May 2019 to reckless wounding in company under s 35(3) of the Crimes Act 1900, following negotiations in which the Crown accepted that charge in satisfaction of the original indictment.
Legal Issues
- What discount should apply to the sentence in recognition of the utility of the late guilty plea?
- How should the standard non-parole period inform the sentencing exercise, including whether to impose full-time imprisonment?
- Whether an Intensive Correction Order (ICO) was appropriate, having regard to community safety and the offender's rehabilitation prospects?
- How should the principle of parity apply, given the sentences imposed on the co-offenders?
- What weight, if any, should the offender's self-induced intoxication carry in mitigation?
Decision
The guilty plea and discount: The court assessed the utility of the guilty plea at 20%. Although the plea was not entered at the earliest opportunity, it was the first occasion the offender could plead to this specific charge, which was different from those originally laid. The court applied the approach in R v Borkowski (2009) NSWCCA 102 in arriving at that figure.
Objective seriousness and the standard non-parole period: The offence carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of four years, applicable to offences in the middle range of objective seriousness by reference to objective factors alone. The court assessed the objective gravity of the conduct, noting as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 that the offence occurred inside the victim's own home. The court synthesised the objective and subjective material in the manner required by Muldrock v R [2011] HCA 39, noting it did not intend to impose full-time imprisonment.
Intoxication: The offender acknowledged consuming significant alcohol and cocaine before the offence. Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, self-induced intoxication does not operate in mitigation. The court accepted, however, that her intoxicated state made her more susceptible to being led by her co-offenders, who were found to have stronger personalities.
Intensive Correction Order and parity: The court imposed a sentence of 1 year and 10 months to be served by way of an ICO in the community, after applying the 20% discount and accounting for the parity principle by reference to the sentence imposed on co-offender El Hassan. The court was satisfied that an ICO was more likely to address the low risk of reoffending it identified in the offender's case, consistent with the community safety requirement under s 66 of the Crimes (Sentencing Procedure) Act 1999. Conditions of good behaviour, supervision by a Community Corrections officer, and 150 hours of community service were imposed.
Orders Made
- Sentence of imprisonment of 1 year and 10 months, to be served by way of an Intensive Correction Order in the community
- Standard ICO conditions imposed: no commission of offences; submission to supervision by a Community Corrections officer
- Additional condition: 150 hours of community service
- Sentence to commence 21 June 2019
- Offender directed to report to Liverpool Community Corrections Office by 26 June 2019
Key Takeaways
- A 20% discount for the utility of a guilty plea can be appropriate where the plea is entered at the first available opportunity to plead to the specific charge actually proceeded with, even where earlier pleas to different charges had been offered during negotiations.
- Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, self-induced intoxication is not a mitigating factor, though evidence of its effect on an offender's susceptibility to peer influence may still form part of the broader subjective case.
- The District Court confirmed that the standard non-parole period, as informed by Muldrock, operates as a guidepost calibrated to offences of middle-range objective seriousness, and must be considered even where the court ultimately opts for a non-custodial implementation of the sentence.
- Where multiple co-offenders are sentenced separately, the parity principle requires the sentencing court to ensure consistency in outcomes, including in the conditions attached to an ICO relative to those imposed on other participants in the same offence.
- An offender's comparatively lesser role within a joint criminal enterprise, genuine remorse, and low assessed risk of reoffending can, in combination, support the imposition of an ICO rather than full-time imprisonment, provided community safety considerations under s 66 of the Crimes (Sentencing Procedure) Act 1999 are addressed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 21A(5AA), 66, 73, 73A; Part 4, Div 1A (standard non-parole periods)
Cases:
- Mill v R [1988] 166 CLR 59
- Muldrock v R [2011] HCA 39
- R v Borkowski (2009) NSWCCA 102
- R v Merillo [2017] NSWCCA 173
- R v Todd [1982] 2 NSWLR 512
- R v Qutami [2001] NSWCCA 353