AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 10 November 2023

R v Ghamraoui

[2023] NSWDC 602

Assault & violenceFirearms & weapons

Citation: R v Ghamraoui [2023] NSWDC 602
Court: District Court of New South Wales
Date: 10 November 2023
Judge: Bennett SC DCJ

Background

The offender appeared for sentencing on a charge of recklessly causing grievous bodily harm (particularised as wounding) while in company, contrary to s 35(3) of the Crimes Act 1900 (NSW). The offence occurred on 18 March 2020 at Hunters Hill, when the offender, together with a co-offender, wounded the victim. A related charge of possessing prohibited weapons, specifically knuckle dusters, arose from the same evening and was dealt with as a summary offence pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

The offender did not give evidence at the sentencing hearing. His counsel made submissions on his behalf, and subjective material was tendered in support of his case. The Crown withdrew several additional charges that had also been listed before the court.

The offender had been arrested in February 2022, granted bail with conditions including a nightly curfew and residential requirements, and remained on bail without any recorded breach until he entered his guilty plea on 8 May 2023, roughly five weeks before the trial was listed to commence on 13 June 2023.

  • What discount applied to each offence for the guilty pleas, given the timing of those pleas?
  • What allowance, if any, should be made for the restrictive bail conditions the offender observed for over a year before entering custody?
  • How should the standard non-parole period of four years for the s 35(3) wounding offence operate as a guidepost in the sentencing exercise?
  • How should the weapons offence be sentenced, given it was dealt with summarily (capped at two years) but the proper sentencing benchmark remained the 14-year indictable maximum?
  • What aggregate sentence was appropriate across both offences, having regard to all objective and subjective factors?

Decision

Guilty plea discounts: For the wounding offence, the plea was entered approximately five weeks before trial, attracting a 10% discount under s 25B(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the knuckle dusters charge, the plea was entered at the first available opportunity on the day of the sentencing hearing, warranting a 25% discount in accordance with R v Borkowski [2009] NSWCCA 102.

Bail conditions and pre-sentence custody: The court found that the curfew and residential requirements imposed as bail conditions, maintained without breach for approximately 14 months, constituted a form of punishment that warranted recognition. Bennett SC DCJ backdated the commencement of the aggregate sentence to 8 February 2023, effectively crediting the offender with three months in recognition of those restrictions, consistent with R v Quinlan [2021] NSWCCA 284.

Objective seriousness and moral culpability: The court assessed the objective gravity of the offending as above the mid-range. The standard non-parole period of four years for the wounding offence served as a legislative guidepost rather than a rigid benchmark, consistent with the post-Muldrock sentencing framework. The court applied the "intuitive synthesis" method described in Markarian v The Queen [2005] HCA 25, considering all relevant factors under ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999.

Weapons offence and jurisdictional limit: Although the weapons charge was dealt with summarily, the court treated the 14-year indictable maximum as the proper sentencing benchmark. Applying that benchmark and the 25% discount produced a term that would have exceeded the two-year jurisdictional cap available in summary proceedings, so the sentence was reduced to remain within that cap.

Subjective factors: The court acknowledged the offender's progress toward rehabilitation, his acceptance of responsibility, and the amelioration of risk to the community. Nevertheless, the court noted that both general and specific deterrence remained engaged, and that the seriousness of the offending required adequate punishment and denunciation.

Orders Made

  • The offender was convicted of reckless wounding contrary to s 35(3) of the Crimes Act 1900 (NSW), with a sentence of 5 years and 4 months specified for that offence and a non-parole period of 2 years specified.
  • The offender was convicted of possessing a prohibited weapon (knuckle dusters), with a sentence of 1 year and 10 months specified for that offence (reduced to respect the summary jurisdictional limit).
  • Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence was imposed comprising a non-parole period of 2 years and 9 months and a head sentence of 5 years and 8 months.
  • The sentence commenced on 8 February 2023, with eligibility for parole on 7 November 2025 and a parole expiry date of 7 October 2028.

Key Takeaways

  • The District Court confirmed that bail conditions involving a curfew and residential restrictions can constitute a form of punishment, and that an appropriate allowance must be made when fixing the commencement date of the sentence, consistent with R v Quinlan.
  • Under the post-Muldrock framework, the standard non-parole period operates as a legislative guidepost to be taken into account during sentencing, but the court must still undertake an intuitive synthesis of all objective and subjective factors rather than treating the standard non-parole period as a fixed starting point.
  • Where a weapons charge is dealt with summarily under s 166 of the Criminal Procedure Act 1986, the indictable maximum remains the proper sentencing benchmark even though the sentence actually imposed is capped at the summary jurisdictional limit of two years.
  • The timing of a guilty plea directly determines the discount available: a plea at the first opportunity attracts 25%, while a plea entered only weeks before a listed trial attracts the lower 10% rate under s 25B(2)(b) of the Crimes (Sentencing Procedure) Act 1999.
  • Prospects of rehabilitation and acceptance of responsibility can reduce the weight given to specific deterrence and community protection, but do not displace the need for adequate punishment and general deterrence where the objective seriousness of the offending is above mid-range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23, 25B, 53A, 54A, 54B, Part 4 Division 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Summary Offences Act 1988 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Veen v The Queen (No 2) (1988) HCA 14
- Tepania v R [2018] NSWCCA 247
- R v Borkowski [2009] NSWCCA 102
- R v Quinlan [2021] NSWCCA 284
- R v De Simoni (1981) 147 CLR 383
- R v Hrncic [2022] NSWDC 455
- R v Reid [2004] NSWCCA 301
- Livesey v New South Wales Bar Association (1983) 151 CLR 288