Islam v The Queen

The appeal in *Islam v The Queen* was brought by Mizanul Islam against a sentence imposed by the sentencing judge. The dispute concerned the sentencing judge's failure to properly account for pre-sentence custody, including time spent in immigration detention, and the reasons provided for setting a high non-parole period. The appeal was heard by Refshauge, Penfold and Burns JJ of the Supreme Court of the Australian Capital Territory.

The primary legal issues before the Court were whether the sentencing judge erred in failing to give adequate reasons for disregarding the appellant's pre-sentence custody when backdating the sentence, and whether the judge erred in failing to provide sufficient reasons for setting a high non-parole period. The Court also considered whether the sentencing judge's capacity to take account of pre-sentence immigration custody was limited by the inability of the Sentence Administration Board to consider such custody when cancelling parole.

The Court reasoned that the sentencing judge had made an error in failing to properly account for the appellant's pre-sentence custody, including the period spent in immigration detention. The sentence was expressed to be "backdated" from a date 12 months in the future, which meant that approximately 12 months of pre-sentence custody had not been accounted for. The Court found that the sentencing judge's reasons for disregarding this period of custody were inadequate. Furthermore, the Court determined that the sentencing judge's capacity to consider pre-sentence immigration custody was not limited by the Sentence Administration Board's inability to do so when cancelling parole.

The appeal was upheld. Mizanul Islam was 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. A non-parole period finishing on 17 February 2014 was set for the head sentence of six years, eight months and three days, which was then expiring on 15 January 2015.