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Court of Criminal Appeal 3 November 2021

Khudadadi v R

[2021] NSWCCA 259

Assault & violence
CRIME APPEAL AGAINST SENTENCE ARGUMENTS NOT ADVANCED IN COURT BELOW

Citation: Khudadadi v R [2021] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 3 November 2021
Judges: Price J (with Hamill J and Ierace J agreeing)

Background

The applicant was convicted by a jury of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), following an incident on 8 November 2017 at a shared house in South Wentworthville. After an argument that began in the kitchen, the applicant entered the victim's 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 blade and sustained a significant hand wound requiring surgery.

The applicant was sentenced in the District Court on 11 June 2020 to three years' imprisonment with a non-parole period of two years. He did not appeal his conviction. The sentencing judge placed the offending slightly below the notional mid-range of objective seriousness, took into account the applicant's lack of criminal history, his background as a refugee from Afghanistan, his family separation, and limited literacy, and declined to impose an intensive correction order (ICO).

The applicant sought leave to appeal against sentence on two grounds: that the sentencing judge failed to consider s 22A of the Crimes (Sentencing Procedure) Act 1999 regarding assistance to justice, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to consider s 22A of the Crimes (Sentencing Procedure) Act 1999, which provides for a sentencing discount where an offender has assisted authorities in the administration of justice
  • Whether the sentence of three years' imprisonment with a two-year non-parole period was manifestly excessive for an offence under s 33(1)(a) of the Crimes Act 1900

Decision

On the s 22A ground, the Court noted that no submission relying on that provision had been made before the sentencing judge. The Court referred to established authority confirming that an appellate court is generally reluctant to allow a ground of appeal that was not raised at first instance, particularly where the failure to raise it may reflect a deliberate forensic choice. The Court found that the applicant's assistance, which consisted of helping police locate the hidden knife after his arrest, was of limited value and fell well short of the kind of assistance that attracts a meaningful discount under s 22A. No error was established on this ground.

On manifest excess, the Court emphasised the gravity of offences under s 33, noting that the maximum penalty of 25 years' imprisonment is the highest prescribed for any offence short of life imprisonment. The Court observed that the seriousness of such an offence is not diminished simply because the victim's own defensive actions reduced the physical consequences of the attack. The degree of violence and the ferocity of the assault were significant factors. The Court also confirmed that the sentencing judge's rejection of an ICO was open on the facts.

The Court found that the applicant had not demonstrated the sentence was unreasonable or plainly unjust. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A ground of appeal based on s 22A of the Crimes (Sentencing Procedure) Act 1999 is unlikely to succeed where the argument was not raised before the sentencing judge and may reflect a deliberate forensic choice at first instance.
  • Limited cooperation with police, such as helping locate a concealed weapon after arrest, does not readily attract a significant sentencing discount under s 22A.
  • Under s 33(1)(a) of the Crimes Act 1900, the objective seriousness of an offence is not automatically reduced because the victim's defensive actions happened to limit the physical harm caused.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal affirmed that the 25-year maximum for wounding with intent signals the legislature's view of the offence's gravity, and that sentencing must account for the ferocity of the attack, not only its medical consequences.
  • Favourable subjective circumstances, including no prior criminal history, refugee background, family separation, and limited literacy, were accepted by the sentencing court but did not render a sentence near the lower end of the range manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A

Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Griffin v R [2018] NSWCCA 259
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jackson v R [2021] NSWCCA 15
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulvihill v R [2016] NSWCCA 259
- R v Spinks [2021] NSWSC 649
- R v Tuuta [2014] NSWCCA 40
- Sumpton v R [2016] NSWCCA 162
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44