Islam v The Queen

[2014] ACTCA 2

MIZANUL ISLAM v THE QUEEN      
[2014] ACTCA 2 (17 February 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against sentence – consideration of pre-sentence custody – error in backdating sentence – error in failing to give reasons for disregarding pre-sentence custody – error in failing to give reasons for setting high non-parole period – appeal upheld – appellant re-sentenced.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – backdating sentences to take account of pre-sentence custody including immigration custody – sentence expressed to be “backdated” from date 12 months in the future – 12 months pre-sentence custody not accounted for – appeal upheld – appellant re-sentenced.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing judge’s capacity to take account of pre-sentence immigration custody not limited by inability of Sentence Administration Board to take account of pre-sentence immigration custody in cancelling parole.

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT)

R v Thomson; R v Houlton (2000) 49 NSWLR 383
WO (a child) v Western Australia (2005) 153 A Crim R 352

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 32 of 2013
No. SCC 46 of 2009

Judge:             Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory

Date:              17 February 2014

IN THE SUPREME COURT OF THE     )

)          No. ACTCA 32 of 2013

AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 46 of 2009
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MIZANUL ISLAM                   Appellant

AND:

THE QUEEN  Respondent

ORDER

Judge:  Refshauge, Penfold and Burns JJ
Date:  17 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

2. Mizanul Islam is resentenced, for aggravated robbery committed on 1 May 2008, to five years imprisonment backdated to 12 November 2009 and therefore finishing on 11 November 2014.

3. A non-parole period finishing on 17 February 2014 is set for the head sentence of six years, eight months and three days currently being served and expiring on 15 January 2015.

IN THE SUPREME COURT OF THE     )

)          No. ACTCA 32 of 2013

AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 46 of 2009
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MIZANUL ISLAM                   Appellant

AND:

THE QUEEN  Respondent

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. In May 2012 a jury found Mizanul Islam guilty of one charge of aggravated robbery. In July 2012 he was sentenced to five years imprisonment from 4 October 2010 to 3 October 2015, with a non-parole period of three years and nine months commencing on 4 October 2010 and ending on 3 July 2014. He has appealed against the sentence, in particular the length of the non-parole period. An appeal against conviction was not pressed at the appeal hearing.

Grounds of appeal

1. The grounds of…