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District Court 11 August 2022

R v Khan; R v El Sankari

[2022] NSWDC 338

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: R v Khan; R v El Sankari [2022] NSWDC 338
Court: District Court of New South Wales
Date: 11 August 2022
Judge: Scotting DCJ

Background

Two offenders, Bilal Haider Khan and Ayman El Sankari, appeared for sentence after pleading guilty in the Local Court to serious firearm and weapon offences. Both offenders were known associates who, together with a co-offender, lured a victim to a residential street in Lakemba, New South Wales, on 31 August 2020. The co-offender arranged for the victim to travel by Uber to the location under the pretence of a meeting.

The three men, wearing black hooded jumpers, forced their way into a family home at 41 Garrong Road, Lakemba, where the victim had sought refuge. The home was occupied at the time by a couple and their six children, aged between 4 and 17. The family had no connection to the offenders or the victim.

Inside the house, the offenders assaulted the victim in front of several young witnesses, made demands for the return of something, and pressed a firearm into the victim's back. As the altercation moved toward the front door, one offender kicked the victim down the front stairs and then shot him multiple times. The victim sustained bullet wounds to his right torso, left groin and abdomen, right leg, and left foot. The mother of the household suffered shock and required ambulance attendance.

  • The appropriate sentence for each offender on charges of discharging a firearm with intent to cause grievous bodily harm (carrying a maximum penalty of 25 years and a standard non-parole period of 9 years) and threatening to use an offensive weapon in company with intent to commit an indictable offence (maximum 15 years)
  • The appropriate discount for early guilty pleas entered in the Local Court
  • Whether special circumstances existed to justify departure from the standard ratio of non-parole period to head sentence
  • The correct approach to aggregate sentencing under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • The weight to be given to each offender's background, including prior offending history, substance use, and mental health

Decision

Both offenders received a 25% discount on their sentences, reflecting their guilty pleas entered in the Local Court under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The court applied the standard principles for fact-finding at sentence, finding adverse facts beyond reasonable doubt and favourable facts on the balance of probabilities, consistent with R v Olbrich (1999) 199 CLR 270.

The court found special circumstances for both offenders, justifying a modest reduction in the standard ratio between non-parole period and head sentence. For Mr Khan, the court pointed to the need for supervised reintegration following a significant custodial term. For Mr El Sankari, addiction issues and mental health conditions supported an extended period on parole. In both cases, the court noted the partial accumulation with sentences already being served and acknowledged that prior supervised orders, including intensive correction orders and community correction orders, had not prevented further offending.

The court treated each offender's matter as appropriate for aggregate sentencing. The Form 1 matters (assault occasioning actual bodily harm in each case) were taken into account in accordance with the guideline judgment under s 37 of the Crimes (Sentencing Procedure) Act 1999 when dealing with the primary firearm offences. The court applied the sentencing purposes under s 3A of that Act throughout.

Orders Made

Mr Khan:
- Convicted on all charges
- Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years and 6 months, commencing 24 January 2021
- Non-parole period expires 23 July 2025; head sentence expires 23 January 2028
- Total effective term (including prior custody): 7 years and 4 months, with a non-parole period of 4 years and 10 months (ratio approximately 66%)

Mr El Sankari:
- Convicted on all charges
- Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years and 5 months, commencing 10 March 2021
- Non-parole period expires 9 August 2025; head sentence expires 9 March 2028
- Total effective term (including prior custody): 7 years, 4 months and 15 days, with a non-parole period of 4 years, 10 months and 17 days (ratio approximately 65%)

Key Takeaways

  • A guilty plea entered in the Local Court attracts a 25% sentencing discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, applied here to both offenders on serious firearm charges.
  • Special circumstances warranting departure from the standard non-parole period ratio can be established by a combination of factors including addiction, mental health conditions, and the structural effect of partially accumulated sentences.
  • The District Court treated the prior failure of supervised community-based orders as a relevant but not decisive factor, using it to support a custodial response while keeping the adjustment to the statutory ratio modest.
  • Form 1 offences (here, assault occasioning actual bodily harm) are taken into account when sentencing for the principal offence, increasing the overall penalty without generating a separate sentence, consistent with the guideline judgment under s 37 of the Crimes (Sentencing Procedure) Act 1999.
  • The presence of young civilian bystanders, including children, in the location of a violent armed offence was part of the factual matrix before the court, reflected in the seriousness with which the offending was assessed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33A(1)(a), 33B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, 53A

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169
- Muldrock v R (2011) 244 CLR 120
- Palijan v R [2010] NSWCCA 142
- R v Lawrence [2005] NSWCCA 91
- R v Olbrich (1999) 199 CLR 270
- R v Qutami [2001] NSWCCA 353
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Watt (unreported, 2 April 1997, NSWCCA)
- R v Wright (1997) 93 A Crim R 48