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Court of Criminal Appeal 4 March 2022

Khan v R

[2022] NSWCCA 47

Assault & violencePublic order & justice offences
CRIME APPEAL SENTENCE TERRORISM OFFENCE ATTEMPT TO MURDER BY KNIFE ATTACK VICTIM SURVIVED

Citation: Khan v R [2022] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 4 March 2022
Judges: Beech-Jones CJ at CL; Rothman J; Wilson J

Background

The applicant had been convicted of a terrorism offence following a knife attack in which the victim survived. The sentencing judge (at first instance in the Supreme Court) imposed what the applicant characterised as an unduly severe sentence. The applicant did not challenge the sentencing judge's assessment of the objective seriousness of the offence.

The applicant had a documented history of mental illness, including a 2013 hospitalisation with diagnoses including OCD and a differential of prodromal psychotic illness. Importantly, both parties accepted before the sentencing judge that there was no causal connection between the applicant's mental illness and the offending conduct.

On appeal, the applicant raised two grounds: first, that the sentencing judge failed adequately to consider the mental health history in assessing moral culpability; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to take into account the extent and severity of the applicant's mental health condition in the years preceding the offence, and to determine whether and to what extent it reduced his moral culpability or otherwise moderated the punitive and denunciatory purposes of sentencing.
  • Whether the sentence was manifestly excessive in all the circumstances.

Decision

On Ground 1, the Court found no error. The sentencing judge had expressly referred to the applicant's mental illness history and had engaged with the question of how it affected sentence, particularly general deterrence. Consistent with a concession made by the applicant's own counsel at the sentencing hearing, the judge accepted that the mental illness, though causally unconnected to the offending, still warranted some moderation of general deterrence. The judge also accepted that the applicant's mental illness rendered his custodial conditions more onerous.

The Court acknowledged that a mental condition without a causal connection to an offence can nonetheless bear on moral culpability, and in turn on how various sentencing factors are weighted. Reduced moral culpability may lessen the weight given to general deterrence, though it may simultaneously increase the weight given to specific deterrence or community protection. In this case, the submission on moral culpability at first instance had been directed solely to moderating general deterrence, and the sentencing judge accepted it. The complaint on appeal reduced, in substance, to an objection that the judge had not used the precise phrase "reduced moral culpability." The Court rejected this as a complaint of substance, holding that the reasoning of the sentencing judge necessarily reflected an acceptance that moral culpability was reduced, even if modestly.

On Ground 2, the Court applied the established principle that manifest excess is a conclusion, requiring identification of error of principle or a sentence so disproportionate to the gravity of the offence that it justifies appellate intervention. The Court found the sentence stern but not manifestly excessive given the objective seriousness of the terrorism offending. No error of principle was identified, and no unidentified error warranting intervention was established.

Orders Made

• Leave to appeal be granted
• Appeal be dismissed

Key Takeaways

  • A mental illness that has no causal connection to an offence can still be a relevant sentencing consideration, including as a factor bearing on moral culpability and the weight to be given to general deterrence.
  • Where reduced moral culpability arises from mental illness, this does not operate in isolation: other sentencing considerations, such as specific deterrence or community protection, may warranting greater weight in response to the same circumstances.
  • No error arises merely because a sentencing judge did not invoke the phrase "reduced moral culpability" explicitly, provided the substance of the reasoning reflects that conclusion.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence may be characterised as stern without being excessive, where it reflects the objective gravity of terrorism offending.
  • Appellate intervention for manifest excess requires either an identifiable error of principle or a sentence so disproportionate as to demonstrate error; neither was established on the facts of this appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth), s 7.3(1)(b)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Paterson v R [2021] NSWCCA 273
- R v Engert (1995) 84 A Crim R 67
- R v Khan (No 11) [2019] NSWSC 594
- R v Sharrouf [2009] NSWSC 1002
- Tepania v R [2018] NSWCCA 247