SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Islam v The Queen
Citation:
[2017] ACTCA 10
Hearing Date:
9 November 2016
DecisionDate:
24 March 2017
Before:
Penfold, Elkaim, North JJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – recklessly inflicting grievous bodily harm – whether sentence was manifestly excessive – whether sentencing judgment was affected by errors of fact – whether sentencing judge erred taking into account incomplete pre-sentence report – assistance to be provided to self-represented litigants – whether sentencing judge erred in calculating sentence – whether sentencing judge erred by taking into account irrelevant considerations – whether sentencing judge erred by failing to take into account relevant considerations
R v Davies (unreported, Supreme Court of the ACT, Burns J, 17 July 2013) R v Laipato (unreported, Supreme Court of the ACT, Nield AJ, 16 September 2010) R v Laipato (No 2) [2014] ACTSC 363 R v RC (unreported, Supreme Court of the ACT, Burns J, 19 October 2012) R v Yuen (unreported, Supreme Court of the ACT, Penfold J, 31 May 2013) Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
I have had the opportunity to read the judgment of Elkaim and North JJ in draft, and agree with their Honours’ conclusion that the appeal must be dismissed.
In relation to the appellant’s application to adduce further evidence on appeal, I agree with their Honours’ approach to that application, and with their subsequent treatment of the version of the facts put by the appellant.
I also agree with their Honours’ approach to, and conclusions about, appeal grounds (d), (e), (i), (j), (k), (m), (n),…
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.
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AGLC
Islam v The Queen [2017] ACTCA 10
Case
[2017] ACTCA 10
Decision Date
CaseChat Overview and Summary
Islam appealed against a sentence imposed by the District Court of New South Wales for the offence of recklessly inflicting grievous bodily harm. The appeal concerned whether the sentence was manifestly excessive and whether the sentencing judge made errors of fact or law in arriving at the sentence.
The Court of Appeal was required to determine several issues, including whether the sentencing judge erred by taking into account an incomplete pre-sentence report, by considering irrelevant factors, or by failing to consider relevant factors. The court also considered the assistance to be provided to self-represented litigants and whether the sentencing judge erred in the calculation of the sentence.
The Court of Appeal dismissed the appeal. The judges found no error in the sentencing judgment, concluding that the sentence imposed was not manifestly excessive and that the sentencing judge had properly considered all relevant factors and applied the correct legal principles.