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District Court 11 June 2020

R v Khudadadi

[2020] NSWDC 563

Assault & violence

Citation: R v Khudadadi [2020] NSWDC 563
Court: District Court of New South Wales
Date: 11 June 2020
Judge(s): Buscombe DCJ

Background

The offender, a 39-year-old Afghan asylum seeker, shared a house in South Wentworthville with the victim and other men. On 8 November 2017, following an argument and initial fight in the kitchen, the victim retreated to his bedroom. The offender then forced his way into the bedroom armed with a large kitchen knife, declared he was going to kill the victim, and attempted to stab him in the chest.

The victim grabbed the knife blade to prevent it entering his chest, sustaining a significant laceration to his hand. He fled the house and called triple 0. The offender concealed the knife in a kitchen cupboard and, in his own triple 0 call shortly after, denied any weapon had been involved.

A jury found the offender guilty of wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The sentencing proceedings followed, with Buscombe DCJ required to find facts consistent with the jury's verdict.

  • What was the appropriate objective seriousness of the offence, including whether the aggravating factors of a grave risk of death and the offence occurring in the victim's home applied?
  • What weight should be given to the offender's subjective circumstances, including his lack of criminal history, background as an asylum seeker, limited family support, and lack of formal education?
  • Whether a non-custodial intensive correction order was available as a sentencing option.
  • Whether special circumstances existed to justify departing from the standard non-parole period.

Decision

Buscombe DCJ assessed the objective seriousness of the offence as falling slightly below a notional mid-range. The attack was largely spontaneous with little planning, a kitchen knife was used, and the level of violence was significant. However, the injuries, while requiring surgery, were not life-threatening, and the nerves and tendons of the victim's hand were not damaged.

The Crown argued the offence involved a grave risk of death, which would have operated as an additional statutory aggravating factor. The judge rejected that submission, given the nature of the wound actually inflicted. However, the judge accepted the separate aggravating factor that the offence was committed in the victim's home, a place where the victim was entitled to feel safe.

On the offender's subjective case, the judge noted his lack of criminal history (attracting leniency), his difficult personal circumstances as an isolated asylum seeker separated from his wife and children, his limited English and lack of formal education, and the hardships he had faced fleeing Afghanistan. Against this, the sentencing assessment report recorded that the offender minimised his conduct and appeared to have little insight into its impact. Having maintained his innocence at trial, there was no evidence of remorse.

The judge found special circumstances existed, in part because the sentence would be harder to serve given the offender's limited contact with his overseas family. An intensive correction order was not available because the appropriate sentence exceeded two years. The standard non-parole period of seven years was departed from, reflecting the below-mid-range assessment of objective seriousness and the finding of special circumstances.

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm.
  • A total sentence of three years imprisonment was imposed, commencing 11 June 2020 and expiring 10 June 2023.
  • A non-parole period of two years was set, expiring 10 June 2022, with a balance of term of one year.

Key Takeaways

  • The District Court confirmed that committing an offence in the victim's home is a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting that a person is entitled to feel safe in their own home.
  • A grave risk of death does not automatically follow from the use of a knife: the court assessed the nature of the wound actually inflicted and declined to find that aggravating factor present on the facts.
  • Maintaining innocence after a jury verdict carries no penalty in sentencing, but it does mean the court has no basis on which to find remorse as a mitigating factor.
  • Where an offender's personal circumstances, including isolation from family overseas and limited support networks, make a custodial sentence more burdensome, those factors may support a finding of special circumstances justifying a longer-than-standard balance of term.
  • Under s 65 of the Crimes (Sentencing Procedure) Act, an intensive correction order is unavailable where the court concludes the appropriate sentence exceeds two years imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm; maximum penalty 25 years; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 21A (aggravating and mitigating factors)

Cases:
No cases were cited in the judgment.