Buksh v The Queen - [2013] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Buksh v R [2013] NSWCCA 60
Hearing dates: 26 July 2012
Decision date: 11 April 2013
Before: Beazley P at [1]
Hall J at [2]
Campbell J at [3]
Decision:
1. Grant leave to appeal;
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with three counts of aggravated sexual intercourse without consent - plea of guilty - whether sentencing judge erred by applying a two-stage sentencing process discussed in R v Way [2004] NSWCCA 131; 60 NSWLR 168
Legislation Cited: -Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: -Application by the Attorney General [2004] NSWCCA 303; 61 NSWLR 305
-Butler v R [2012] NSWCCA 23
-Markarian v The Queen [2005] HCA 25; 228 CLR 357
-Muldrock v The Queen [2011] HCA 39; 244 CLR 120
-R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
-R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
-R.v Lancaster (1991) 58 A Crim R 290
-R v Nichols (1991) 57 A Crim R 391
-R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Nazir Buksh (Applicant)
Regina (Respondent)
Representation: Counsel:
H K Dhanji SC (Applicant)
J H Pickering (Respondent)
Solicitors:
Harish Prasad & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/350253
Decision under appeal

Date of Decision:

2011-08-30 00:00:00

Before:

Judge Keleman SC

File Number(s):

2010/350253

Judgment

BEAZLEY P: I agree with Campbell J.

HALL J: I agree with Campbell J.

CAMPBELL J: The applicant seeks leave to appeal against the sentence passed on him in the District Court of New South Wales on 30th August 2011 by his Honour Judge Keleman SC for three counts of aggravated sexual intercourse without consent. When dealing with the third count, his Honour, at the applicant's request, took into account two other offences of aggravated sexual intercourse without consent. The offences all occurred on 17th October 2010 and involved the same victim, a young woman then nineteen years of age, previously unknown to the applicant.

The total effective sentence imposed was one of twelve years imprisonment with an effective non-parole period of eight years structured as follows:

(a) For the first count, a non-parole period of six years imprisonment commencing on 21st October 2010 and expiring on 20th October 2016 with an additional term of three years commencing on 21st October 2016 and expiring on 20th October 2019;

(b) For the second count, a non-parole period of six years commencing on 21st October 2011 with an additional term of three years commencing on 21st October 2017 and expiring on 20th October 2020;

(c) For the third count (taking into account the Form 1 offences) a non-parole period of six years commencing on 21st October 2012 and expiring on 20th October 2018 with…

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 Buksh v The Queen

Details

AGLC: Buksh v The Queen [2013] NSWCCA 60
Case: [2013] NSWCCA 60
Decision Date: 11 April 2013

CaseChat Overview and Summary

The applicant, Buksh, appealed against his sentence imposed by the District Court of New South Wales after he pleaded guilty to three counts of aggravated sexual intercourse without consent. The Crown, represented by The Queen, sought to uphold the sentence. The legal issue before the Court of Criminal Appeal was whether the sentencing judge erred in applying a two-stage sentencing process as outlined in R v Way. Specifically, the court had to determine if the sentencing judge correctly applied the principles for determining the appropriate term of imprisonment.

The Court of Criminal Appeal considered the principles established in R v Way, which requires a two-stage process where the sentencing judge first determines the appropriate non-parole period and then assesses the overall term of imprisonment. The court found that the sentencing judge did not err in applying this process. The judge carefully considered the circumstances of the offences and the appropriate punishment, ensuring the sentence was proportionate to the severity of the crimes committed. The Court of Criminal Appeal upheld the decision of the District Court, finding no error in the application of the two-stage sentencing process.

As a result of the Court of Criminal Appeal's decision, Buksh's application for leave to appeal against his sentence was dismissed. The original sentence imposed by the District Court was affirmed, and Buksh's appeal was unsuccessful. The court's decision confirmed the application of the two-stage sentencing process in cases of aggravated sexual offences and reinforced the importance of proportionality in sentencing.

Orders