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Court of Criminal Appeal 13 December 2024

R v Karim

[2024] NSWCCA 234

DrugsDomestic & family violence
SENTENCED

Citation: R v Karim [2024] NSWCCA 234
Court: Court of Criminal Appeal, NSW
Date: 13 December 2024
Judges: Mitchelmore JA (principal judgment); Davies J and Campbell J (both agreeing)

Background

The respondent pleaded guilty, on a late basis, to two entirely unrelated sets of offences dealt with together at sentencing. The first set, the domestic violence offences, involved a sustained and premeditated assault on his wife, who was 20 weeks pregnant, with the objective of killing the foetus. The attack included stomping, kicking and kneeling on her stomach, choking her to unconsciousness, and then, believing she might be bleeding, digitally penetrating her vagina to check whether he had achieved his goal. Foetal death in utero was subsequently confirmed at hospital.

The second set of offences arose from a separate police investigation into cocaine supply. The Crown case was that the respondent exercised oversight and control over a dedicated drug-run phone as part of a joint criminal enterprise with street-level dealers.

The District Court imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The Crown appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the indicative sentences imposed for the domestic violence offences adequately reflected their objective seriousness
  • Whether the manner in which the District Court accumulated the sentences for the two sets of offending was appropriate
  • Whether the aggregate sentence and non-parole period were manifestly inadequate
  • Whether, if error was established, the Crown had discharged its onus to justify intervention by the Court of Criminal Appeal and re-sentencing

Decision

Mitchelmore JA (with Davies and Campbell JJ agreeing) found no patent error in the sentencing judge's reasons. The sentencing judge had correctly identified the domestic violence offences as being at or near the highest end of objective seriousness, recognised the Form 1 choking offence as substantially increasing the penalty, and applied a 10 per cent discount for late pleas. However, the Court of Criminal Appeal concluded that, despite the absence of identifiable specific error, the indicative sentences did not adequately reflect the egregious objective gravity of the domestic violence offences and fell short of expressing the community's denunciation of that conduct.

The Court also found that the manner in which the sentences for the two sets of offences were accumulated, together with the three-year indicative sentence for the separate drug offending, produced an aggregate sentence that was manifestly inadequate. The non-parole period was likewise manifestly inadequate.

The Crown was found to have discharged the high onus required before an appellate court will intervene in a Crown appeal against sentence. The extremely grave objective circumstances of the domestic violence offences compelled intervention. The Court of Criminal Appeal applied the totality principle in arriving at new indicative sentences: 13 years for the grievous bodily harm count (including the Form 1 choking offence), 5 years for the aggravated sexual intercourse count, and 3 years for the drug supply offences. After applying the totality principle, the court arrived at a new aggregate sentence.

In re-sentencing, the court adopted the sentencing judge's favourable findings on subjective matters, including limited remorse, the respondent's youth, the onerousness of custody during the COVID-19 pandemic, and special circumstances justifying a reduction in the statutory non-parole period ratio. The respondent's subjective case was nonetheless characterised as not strong, particularly in respect of the drug offences.

Orders Made

  • Appeal allowed
  • The sentence imposed in the District Court is quashed
  • The respondent is re-sentenced to an aggregate term of 15 years imprisonment commencing 5 November 2021 and expiring 4 November 2036
  • Non-parole period of 10 years commencing 5 November 2021 and expiring 4 November 2031
  • The respondent will be eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • A Crown appeal on manifest inadequacy can succeed even where no specific or patent error is identified in the sentencing judge's reasons, provided the appellate court is satisfied the resulting sentence does not adequately reflect the objective gravity of the offending.
  • Indicative sentences for individual counts, and the manner in which those sentences are accumulated, are both relevant considerations when assessing whether an aggregate sentence is manifestly inadequate.
  • The Court of Criminal Appeal confirmed that the purposes of denunciation and deterrence carry significant weight when sentencing for domestic violence offences of extreme gravity, particularly where the harm inflicted is severe and deliberate.
  • Favourable subjective findings made by a sentencing judge, including findings on remorse, youth, and the onerous nature of custody during the pandemic, can be adopted on re-sentencing even where an aggregate sentence is increased on Crown appeal.
  • In allowing a Crown appeal, the appellate court must be satisfied the Crown has discharged its onus to demonstrate that the sentencing discretion miscarried to a degree that compels intervention, a threshold the Court found met here given the exceptional circumstances of the domestic violence offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Crimes Act 1900 (NSW), ss 33, 37, 61J, 93T, 193C, 578A
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- KT v R [2008] NSWCCA 51
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McKinnon v R [2020] NSWCCA 106
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Nguyen v R (2016) 256 CLR 656; [2016] HCA 17
- R v AD [2020] NSWCCA 275
- R v Hill [2020] NSWCCA 197
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v King [2004] NSWCCA 444; 150 A Crim R 409
- R v MA [2004] NSWCCA 92; 145 A Crim R 434
- R v Sharrouf [2023] NSWCCA 137
- R v Stephens [2024] NSWCCA 170
- R v VR [2024] NSWCCA 91
- R v Zolfonoon [2016] NSWCCA 250; 262 A Crim R 285
- Scott v R [2020] NSWCCA 81