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Islam v R

Islam v R

Case [2016] NSWCCA 233 28 October 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Islam v R [2016] NSWCCA 233
Hearing dates: 26 February 2016
Decision date: 28 October 2016
Before: Johnson J at [1]
R A Hulme J at [131]
Davies J at [132]
Decision:
1. Leave is granted to appeal against sentence.

2. Appeal allowed with respect to the sentences imposed on 8 August 2014.

3. Sentences imposed on 8 August 2014 are quashed.

4. On Count 1, the Applicant is sentenced to imprisonment for nine months commencing on 25 July 2014.

5. On Count 2, taking into account under s.16BA Crimes Act 1914 (Cth) the offence under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Applicant is sentenced to imprisonment for four years and nine months commencing on 25 January 2015 and expiring on 24 October 2019.
6. Pursuant to s.19AB Crimes Act 1914 (Cth), a single non-parole period of three years and six months is fixed commencing on 25 July 2014 and expiring on 24 January 2018.
Catchwords: CRIMINAL LAW –– appeal against sentence – Applicant sentenced for offences contrary to s.400.3(1) and s.400.9(1) Criminal Code 1995 (Cth) – whether sentencing judge erred in approach to instrument of crime aspect of s.400.3(1) offence – error demonstrated – whether sentencing judge erred by application of a presumptive non-parole period for a federal offence – error demonstrated – whether sentencing judge erred in approach to contrition – no error demonstrated – whether lesser sentence warranted under s.6(3) Criminal Appeal Act 1912 - serious examples of offending of this type – Applicant’s criminality greater than co-offenders – prior criminal history – lesser sentence warranted – Applicant resentenced
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Proceeds of Crime Act 2002 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Alvares v R [2011] NSWCCA 33; 209 A Crim R 297
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Deakin v The Queen [1984] HCA 31; 58 ALJR 367
Hili v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
McMahon v R [2011] NSWCCA 147
Milne v The Queen [2014] HCA 4; 252 CLR 149
Mun v R [2015] NSWCCA 234
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Ansari [2007] NSWCCA 204; 70 NSWLR 89
R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403
R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Qutami [2001] NSWCCA 353; 127 A Crim R 367
Stock v R [2011] NSWCCA 49
Category: Principal judgment
Parties: Prabal Islam (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr TA Game SC; Mr A Djemal (Applicant)
Mr LK…

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 Islam v R

Details

AGLC: Islam v R [2016] NSWCCA 233
Case: [2016] NSWCCA 233
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the applicant, Islam, who was convicted of offences under section 400.3(1) and section 400.9(1) of the Criminal Code 1995 (Cth). The appeal focused on the sentencing judge's approach to various aspects of the crime, particularly the instrument of crime in relation to the section 400.3(1) offence, the application of a presumptive non-parole period for a federal offence, and the consideration of contrition. The court was required to determine whether the sentencing judge made any errors in these areas and whether a lesser sentence was warranted under section 6(3) of the Criminal Appeal Act 1912.

The court found that the sentencing judge erred in their approach to the instrument of crime aspect of the section 400.3(1) offence. The court also determined that the judge erred by applying a presumptive non-parole period for a federal offence. However, the court found no error in the sentencing judge's approach to contrition. The court examined the nature and seriousness of the offending, noting that it was a serious example of this type of crime. The applicant's criminality was found to be greater than that of his co-offenders, and his prior criminal history was taken into account. The court concluded that a lesser sentence was warranted in this case.

The court resentenced the applicant, taking into account the errors identified and the seriousness of the offending. The applicant was resentenced to a term of imprisonment with a non-parole period that was reduced from the original sentence. The court considered the need for general deterrence, the need to protect the community, and the need to provide the applicant with an opportunity for rehabilitation. The final orders of the court reflected the resentencing of the applicant.

Orders