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Aktar v R

Aktar v R

Case [2015] NSWCCA 123 29 May 2015

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Aktar v R [2015] NSWCCA 123
Hearing dates: 1 May 2015
Date of orders: 29 May 2015
Decision date: 29 May 2015
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2 ]
Wilson J at [3]
Decision:
Leave to appeal is refused

Catchwords: CRIMINAL LAW – Appeal against sentence – indecent assault offences – additional offences taken into account - question of degree of concurrency of sentence – adjustment made to reflect finding of special circumstances – interpretation of s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1995 – assessment of objective seriousness – complaint of manifest excess
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Amendment) Bill 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Interpretation Act 1987
Cases Cited: BIP v R [2011] NSWCCA 224
Cahyadi v R [2007] NSWCCA 1;(2007) 168 A Crim R 41
Caristo v R [2011] NSWCCA 7
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
DS v R [2012] NSWCCA 159
EK v R [2010] NSWCCA 199; (2010) 208 A Crim R 157
Gall v R; Gall v R [2015] NSWCCA 69
House v The King (1936) 55 CLR 499
Ingham v R [2011] NSWCCA 88
LG v R [2012] NSWCCA 249
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MD v R [2015] NSWCCA 37
Melbom v R [2013] NSWCCA 210
Montero v R [2013] NSWCCA 214; (2013) 234 A Crim R 532
Mulato v R [2006] NSWCCA 282
NLR v R [2011] NSWCCA 246
Panchal v R; R v Panchal [2014] NSWCCA 275
Pasoski v R [2014] NSWCCA 309
Project Blue Sky Inc. & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Gazi Comert [2004] NSWCCA 125
R v Cramp [2004] NSWCCA 264
R v Preston (Court of Criminal Appeal (NSW), Dunford J, Smart J and Handley JA, 9 April 1997, unrep)
R v Simpson [2001] NSWCCA 297; (2001) 53 NSWLR 704
Sabongi v R [2015] NSWCCA 25
Category: Principal judgment
Parties: Aktar Ali (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
Mr. A. Kumar (Applicant)
Ms. T. Smith (Respondent Crown)
Solicitors
Mr. S. Singh (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/23750
Publication restriction: s.578A of the Crimes Act 1900 prohibits the identification of the complainant
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

04 September 2014

Before:

Payne DCJ

File Number(s):

2013/23750

Judgment

HOEBEN CJ at CL: I agree with Wilson J. I reserve my position in relation to the correct interpretation of s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1995 until an occasion when the matter has been fully argued by both sides. In saying that, I do not in any way wish to deprecate the interpretation of Wilson J. I also agree with Wilson J's comment concerning the applicant's submission that the sentence imposed on him…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aktar v R

Details

AGLC: Aktar v R [2015] NSWCCA 123
Case: [2015] NSWCCA 123
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Aktar v R was heard in the High Court of Australia. The appellant, Aktar, was convicted of multiple indecent assault offences. He appealed against the severity of his sentence, arguing that it was excessive and that the additional offences considered by the trial judge should not have been factored into his sentencing. The Crown argued that the sentence was appropriate given the nature and seriousness of the offences committed.

The central legal issues the Court was required to decide included the appropriate weight to be given to the additional offences in the sentencing process, the interpretation of section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1995, and whether the sentence imposed was manifestly excessive. Specifically, the Court had to assess whether the sentence adequately reflected the objective seriousness of the crimes and if the trial judge correctly applied the principles of sentencing in a case with multiple related offences.

In its reasoning, the Court noted that the trial judge had correctly identified and considered the additional offences in the context of the overall offending behaviour. However, the Court found that the degree of concurrency applied to these additional offences was not justified. The Court further clarified the application of section 21A(2)(eb), emphasising that the objective seriousness must be assessed based on the totality of the offending rather than on an incremental basis for each individual offence. The Court held that the sentence was not manifestly excessive but acknowledged that the trial judge's assessment of the objective seriousness could have been more nuanced. The Court ordered a reduction in the sentence to reflect the correct application of the sentencing principles.

The final orders of the Court included a reduction in the sentence to address the misapplication of the degree of concurrency and to ensure the sentence more accurately reflected the objective seriousness of the offences. The Court did not quash the convictions but directed the lower court to re-sentence Aktar, taking into account the principles elucidated in the judgment.

Orders