Citation: R v Khouri [2020] NSWDC 255
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Colefax SC DCJ
Background
The offender was sentenced for five principal offences and three summary offences arising from two separate incidents in August 2018. At the time, he was almost 30 years old and on parole. The offending stemmed from a delusional belief that his partner's former boyfriend was continuing a romantic relationship with her, when in fact the former boyfriend was only pursuing repayment of a debt.
The first incident, on 30 August 2018, occurred in an underground carpark in Beverly Hills. The offender lured the former boyfriend to a meeting under false pretences, produced a loaded .357 Smith and Wesson revolver during a confrontation, and fired a single shot that struck the victim in the hip. The bullet shattered the victim's pelvis and damaged his bowel, requiring surgery and the removal of bowel segments.
The following morning, on 31 August 2018, the offender assaulted his partner on a Leppington roadway and, when a bystander intervened, retrieved the same revolver from his vehicle and fired a shot toward that bystander. Police then attempted to stop the offender's vehicle, triggering a dangerous high-speed pursuit through heavy traffic before the offender was ultimately arrested.
Legal Issues
- The appropriate indicative sentence for each principal offence, including two counts of firing a firearm in a manner likely to injure persons or property, common assault, possessing an unauthorised pistol, and police pursuit driving dangerously
- Whether a discount should be applied for the offender's guilty plea
- Whether the offender's mental health constituted a mitigating factor warranting a finding of special circumstances
- The correct aggregate sentence and non-parole period, taking into account totality, the standard non-parole period for firearm possession, and the need to backdate the sentence to the date of arrest
Decision
The court applied a 25 per cent discount to each indicative sentence in recognition of the offender's guilty pleas. His Honour observed that the firearms offences were particularly serious: the first involved shooting a man who posed no ongoing threat and who had been trying only to recover a debt, while the second involved firing at a bystander whose only act was to defend a woman being stomped on. The court described the assault on the offender's partner as "disgraceful and cowardly."
The court acknowledged the offender's mental health issues as a relevant mitigating consideration, despite his prior custodial experience. This informed a finding of special circumstances, justifying a modest adjustment to the ratio between the non-parole period and the balance of the sentence. His Honour concluded that full-time imprisonment was the only appropriate outcome for each of the principal offences and for the summary offence of driving while licence suspended.
On the agreed statement of facts, the court used the sentencing remarks to criticise the practice of submitting agreed facts that are little more than reproduced police fact sheets or Crown case statements. His Honour noted that only material facts should appear in an agreed statement, and observed that the involvement of the Local Court did not excuse the standard of the documents filed.
Orders Made
- Aggregate term of imprisonment: 9 years 6 months
- Non-parole period: 5 years 8 months, commencing 31 August 2018, expiring 30 April 2024
- Balance of sentence: 3 years 10 months, commencing 1 May 2024, expiring 29 February 2028
- Sentence backdated to the date of arrest: 31 August 2018
- Indicative sentences (pre-discount / post-25% discount):
- First firearm discharge offence (Beverly Hills): 7 years / 5 years 3 months
- Common assault: 6 months / 4 months
- Second firearm discharge offence (Leppington): 5 years / 3 years 9 months
- Possessing unauthorised pistol: 7 years / 5 years 3 months (indicative NPP 3 years 2 months)
- Police pursuit, not stop, drive dangerously: 2 years 6 months / 1 year 10 months
- Driving whilst licence suspended: 4 months / 3 months
- Negligent driving and not giving particulars: convicted, no further penalty imposed (s 10A, Crimes (Sentence Procedure) Act 1999)
- Charge of driving recklessly/dangerously (H585231991/12): withdrawn by prosecution and dismissed
Key Takeaways
- An aggregate sentence of 9 years 6 months with a non-parole period of 5 years 8 months was imposed for a course of firearms violence, assault, and dangerous driving offending that occurred across two days while the offender was on parole.
- A 25 per cent discount applied across all indicative sentences in recognition of guilty pleas, consistent with the utilitarian value of those pleas in avoiding trial.
- Mental health issues, even where a defendant has prior custodial experience, can support a finding of special circumstances warranting adjustment to the non-parole period to parole period ratio.
- The District Court issued a pointed reminder that agreed statements of facts in sentencing proceedings must contain only material facts, and that reproducing police fact sheets or Crown case statements wholesale does not meet the standard required to assist the court.
- Where parole is revoked as a result of fresh offending, the sentencing court may backdate the aggregate sentence to the date of arrest rather than to the date of the parole revocation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 51B(1), 93G(1)(c)
- Firearms Act 1996 (NSW), s 7(1)
- Road Transport Act 2013 (NSW), ss 54(3)(a), 117(1)(c)
- Road Rules 2014 (NSW), s 287(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (conviction with no further penalty), s 166 (summary offences dealt with on certificate)
Cases cited: None recorded in the judgment.