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Supreme Court 12 April 2019

R v Khazma

[2019] NSWSC 416

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER VICTIM AGED 2 YEARS HIGH NO REMORSE

Citation: R v Khazma [2019] NSWSC 416
Court: Supreme Court of New South Wales
Date: 12 April 2019
Judge(s): Fullerton J

Background

A jury convicted the offender of the murder of his de facto partner's two-year-old daughter, DB, who died on 20 December 2016 from blunt force head and spinal cord injuries. The offender had been in a relationship with the child's mother for only weeks before the fatal events, and the family had moved into a shared rented flat in Guildford in early December 2016.

The Crown established that the offender assaulted DB on both 18 and 19 December 2016, each time applying considerable blunt force to her head, with the intention of causing grievous bodily harm. The child lost consciousness after the first assault and never regained it. Medical evidence also supported a finding that the offender shook the already unconscious child, causing bilateral retinal haemorrhages. Post-mortem examination revealed extensive injuries beyond the fatal head trauma, including multiple burns, bite marks, and bruising across the child's body.

The offender was also convicted on two counts of assault occasioning actual bodily harm: one relating to the loss of consciousness caused on 18 December 2016, and one relating to full-thickness burns to the child's perianal region caused by a cigarette lighter. At trial, the offender had attributed all injuries to the child's mother, but the jury rejected that account entirely.

  • Whether the objective seriousness of the murder warranted the imposition of a life sentence under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How to assess the objective seriousness of the murder where the causative injuries resulted from two separate assaults, each with intent to cause grievous bodily harm
  • Whether the contextual non-fatal injuries (including the shaking, burns, and other abuse) were relevant to the murder sentence even where the offender was not sentenced for murder on that basis
  • How the standard non-parole period of 25 years (applicable where a child is murdered) should operate as a guidepost in fixing a determinate sentence
  • Whether the offender's subjective circumstances attracted any leniency, and the role of remorse in sentencing
  • The appropriate aggregate sentence across the murder count and the two assault counts, applying totality principles

Decision

Fullerton J declined to impose a sentence of life imprisonment, despite characterising the murder as falling in the high range of objective seriousness. Her Honour concluded that the case did not reach the "worst case" category required to justify the maximum penalty, applying the principle from Knight v R [2006] NSWCCA 292 that life imprisonment should be reserved for cases where no non-parole period could adequately reflect the full circumstances.

Her Honour found that both assaults on 18 and 19 December 2016 were committed with intent to cause grievous bodily harm and that their combined effect caused DB's death. The shaking of the unconscious child, while not forming the basis for conviction on a reckless indifference to life theory, remained contextually relevant to sentencing. The broader pattern of physical abuse, including the burns and the extensive injuries visible at the time of the child's presentation at hospital, informed the overall gravity of the offending.

The offender's subjective circumstances attracted no leniency. He had no remorse, had maintained a false account throughout proceedings, and the jury had necessarily rejected his evidence as untrue. Her Honour held that the sentencing considerations of denunciation, general and specific deterrence, and community protection were of primary importance in the circumstances.

For the assault counts, her Honour found that the burning offence was in the worst category for an offence under s 59 of the Crimes Act 1900, warranting the maximum available penalty of 5 years. The sentences were accumulated consistently with totality principles, and her Honour expressly declined to find special circumstances in fixing the non-parole period, noting the balance of term was sufficient to support future reintegration.

Orders Made

  • Murder (Count 1): 40 years imprisonment, with a non-parole period of 30 years
  • Assault occasioning actual bodily harm (Count 2): 3 years imprisonment
  • Assault occasioning actual bodily harm (Count 3): 5 years imprisonment
  • Aggregate sentence: 44 years imprisonment commencing 19 December 2016, comprising a non-parole period of 33 years and a balance of term of 11 years
  • Eligible for parole consideration: 18 December 2049
  • Aggregate sentence expires: 18 December 2060

Key Takeaways

  • Life imprisonment for murder requires the case to fall within the "worst case" category; the Supreme Court held that, although this murder was of high objective seriousness, that threshold was not met, and a substantial determinate sentence was appropriate instead.
  • Where a child is murdered, the standard non-parole period of 25 years operates as a guidepost, not a mandatory floor, and the sentencing court must assess it against the full objective and subjective circumstances.
  • A finding that the offender shook an unconscious victim, even where that act was not the formal basis for conviction, remained relevant contextual material for the purpose of determining the overall sentence.
  • Absence of remorse, combined with a false account maintained throughout trial and rejected by the jury, meant the offender's subjective circumstances attracted no mitigating weight whatsoever.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), where an assault offence is assessed as falling in the worst case category and no mitigating evidence is present, the maximum available penalty is the appropriate sentencing indicator.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(1), 54B(4), 61

Cases:
- Knight v R [2006] NSWCCA 292
- Ross v R [2016] NSWCCA 176
- SW v R [2013] NSWCCA 103
- R v AS [2018] NSWSC 930
- R v Hill [2014] NSWSC 1010
- R v JK [2018] NSWSC 250
- R v Khazma [2018] NSWSC 2055 (admissibility ruling)
- R v LN; R v AW (No 10) [2017] NSWSC 1387
- R v Maybir (No 8) [2016] NSWSC 166
- R v SW (No 3) [2009] NSWSC 1043