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Court of Criminal Appeal 28 February 2024

Khoury v R

[2024] NSWCCA 19

Sexual offences
DATE COMMENCEMENT DATE OF SENTENCE

Citation: Khoury v R [2024] NSWCCA 19
Court: Court of Criminal Appeal, NSW
Date: 28 February 2024
Judge(s): Adamson JA (principal judgment); Wright J and Sweeney J agreeing

Background

The appellant was convicted by jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from a single incident on 8 January 2021. The offending involved digital and penile-vaginal penetration of the complainant at the appellant's apartment. The defence case at trial was that the complainant had consented to penile-vaginal intercourse and that no digital penetration had occurred.

Following conviction, the trial judge imposed an aggregate sentence of four years' imprisonment with a non-parole period of two years and four months, backdated to commence on 30 March 2022. The appellant sought leave to appeal against both the convictions and the sentence.

Two separate incidents gave rise to the appeal grounds. First, a courtroom confrontation occurred when a Crown witness made a gesture towards the appellant as he left the stand, and the appellant responded with an obscenity in Arabic. Second, a dispute arose over the mathematical calculation underpinning the backdating of the sentence.

  • Whether the trial judge erred by refusing to discharge the jury after a potentially prejudicial incident between a Crown witness and the appellant occurred in open court, and whether the direction given to the jury was sufficient to cure any resulting prejudice.
  • Whether the trial judge erred in calculating the commencement date of the aggregate sentence, specifically in the deduction made to account for time the appellant had spent in pre-sentence custody.

Decision

Conviction appeal: After completing his evidence, the Crown witness CG turned toward the appellant (with his back to the jury) and made a gesture described as a threat in Arabic tradition. The appellant responded aloud with an obscenity in Arabic. The trial judge declined to discharge the jury and instead directed them that the incident was "not relevant to the issues." The Court of Criminal Appeal held there was no real prospect that the incident had prejudiced the appellant. Any residual prejudice was wholly remedied by the direction, which addressed each matter relevant to the discharge application. The appellant's right to a fair trial was not compromised.

Sentence appeal: The sentencing judge deducted 92 days from the appellant's pre-sentence custody when backdating the commencement date of the aggregate sentence. The appellant argued the deduction should have been only 64 days, corresponding to the time he actually spent in custody for a separate assault occasioning actual bodily harm (AOABH) offence. The Court found that the 92-day figure reflected not only the 64 days of actual custody for the AOABH offence, but also earlier periods spent on remand for other charges that were dismissed or did not result in custodial sentences.

The Court confirmed that the sentencing judge's own reasons made plain she was exercising a discretion in backdating the sentence, not merely performing an arithmetic calculation. Her Honour was entitled to accumulate the AOABH sentence by three months (its non-parole period) while making the parole period of that sentence concurrent with the subject offence sentence. Applying the principle of totality, the Court found no identifiable error in that exercise of discretion. Both grounds of appeal were dismissed, though leave was granted in respect of each.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A trial judge's refusal to discharge a jury following an in-court incident will not constitute a miscarriage of justice where there is no real prospect of prejudice to the accused and the direction given to the jury adequately addresses each relevant consideration.
  • The adequacy of a curative jury direction depends on whether it squarely addresses the specific matters capable of causing prejudice. Here, the direction that the incident was "not relevant to the issues" was held to be entirely appropriate.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that backdating a sentence is a discretionary exercise, not a purely mechanical calculation, and that a sentencing judge may take into account remand periods served in relation to charges that were ultimately dismissed.
  • Under the totality principle, where a sentencing judge imposes a sentence on an offender already sentenced by another judicial officer, the later judge must accept the first sentence as an appropriate exercise of discretion and then determine the overall sentence appropriate for all offences combined.
  • No error is established simply because a deduction for pre-sentence custody differs from the period actually spent in custody for a specific prior offence, provided the broader pre-sentence custodial history explains the difference.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 3, 306I
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 (applied)
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 (applied)
- Warwick v R [2016] NSWCCA 183
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78
- Cox v R [2022] NSWCCA 66
- Dries v R [2022] NSWCCA 33
- Watson v R [2022] NSWCCA 208
- R v TS [2004] NSWCCA 38; (2004) 144 A Crim R 124