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Islam v The Queen

Islam v The Queen

Case [2013] ACTCA 10 28 February 2013

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ISA ISLAM V THE QUEEN
[2013] ACTCA 10 (28 February 2013)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal against conviction – appeal dismissed.
CRIMINAL LAW– general matters – criminal liability and capacity – mental impairment – psychiatric assessments – whether mental impairment made out – Criminal Code 2002 (ACT), ss 27, 28.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – appeal against sentence – appeals dismissed.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – Crown appeal against sentence – principles in Crown appeals.
APPEAL AND NEW TRIAL – general principles – in general and right of appeal – grounds of appeal – weight – claim inadequate weight given to a factor – matter for sentencing judge.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentence – whether remorse shown – whether manifestly excessive or manifestly inadequate – no question of principle.

Crimes (Sentencing) Act 2005 (ACT), s 33
Supreme Court Act 1933 (ACT), s 68B
Victims of Crime (Financial Assistance) Act 1983 (ACT), s 54

Criminal Code 2002 (ACT), ss 27, 28, Pt 2.3

Ashdown v The Queen [2011] VSCA 408
Balthazaar v The Queen [2012] ACTCA 26
Hanania v The Queen [2012] NSWCCA 220
House v The King (1936) 55 CLR 499
Inge v The Queen (1999) 199 CLR 295
Markarian v The Queen (2005) 228 CLR 357
Power v The Queen (1974) 131 CLR 623
Rama v The Queen [2006] ACTCA 25
R v Campbell [2010] ACTCA 20
R v Cassidy [2008] ACTSC 13
R v Chatfield [2012] ACTCA 32
R v Clarke [1996] 2 VR 520
R v Eisenach [2011] ACTCA 2
R v Ellis (1993) 68 A Crim R 449
R v Islam [2011] ACTSC 32
R v Islam (Unreported, Supreme Court of the Australian Capital Territory, Mathews AJ, 25 May 2011)
R v Jajou (2009) 196 A Crim R 370
R v Mitchell and Gallagher (2007) 177 A Crim R 94
R v TW (2011) 6 ACTLR 18
Veen v The Queen (No 2) (1988) 164 CLR 465
Wong v The Queen (2001) 207 CLR 584

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

No. ACTCA - 28/2011
No. SCC 340 of 2009

Judges: Refshauge, Burns and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 28 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA - 28 of 2011
)          No. SCC 340 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

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

BETWEEN:ISA ISLAM
Appellant & Cross-Respondent

AND:THE QUEEN
Respondent & Cross-Appellant

ORDER

Judges:  Refshauge, Burns and Marshall JJ
Date:  28 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction is dismissed.

The appeal against sentence is dismissed.

The cross-appeal against sentence is dismissed.

IN THE SUPREME…

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 The Queen

Details

AGLC: Islam v The Queen [2013] ACTCA 10
Case: [2013] ACTCA 10
Decision Date: 28 February 2013

CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of the Australian Capital Territory heard an appeal by the applicant, Islam, against his conviction and sentence for an offence. The Crown also cross-appealed against the sentence imposed.

The primary legal issues before the Court were whether the applicant's conviction was unsafe or unsatisfactory, and whether the sentence imposed was manifestly excessive or inadequate. In relation to the conviction, the Court considered whether the applicant had established mental impairment under sections 27 and 28 of the *Criminal Code 2002* (ACT), and whether the sentencing judge had given adequate weight to relevant factors.

The Court of Appeal dismissed the appeal against conviction, finding no error in the trial judge's assessment of the evidence concerning mental impairment. The Court also dismissed the appeal against sentence, concluding that the sentence imposed was not manifestly excessive. Furthermore, the Court dismissed the Crown's cross-appeal against sentence, finding no grounds to interfere with the sentencing judge's discretion. The Court affirmed that the weight given to various factors in sentencing is a matter for the sentencing judge.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The appeal against sentence is dismissed.

3. The cross-appeal against sentence is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Islam v The Queen [2013] ACTCA 10

Most Recent Citation

JOSO SLADIC v STEVEN MARK PROUD [2013] ACTSC 232 (25 November 2013)

Cases citing this decision · 13 of 13 shown

Harrop v Evanson (a pseudonym)
[2023] ACTMC 28

…v Western Australia [2013] HCA 38 DPP v Dunn [2022] ACTSC 355 Markarian v R [2005] HCA 25; 228 CLR 357 R v Forrest (No 2) [2017] ACTSC 83 Islam v R [2013] ACTCA 10 Lukatela v Apostoloff [2010] ACTSC 74 Balthazaar v The Queen [2012] ACTCA 26 Proud v Sladic [2014] ACTCA 26 R v CV [2013] ACTCA 22…
Lutz v McCormack
[2018] ACTSC 66 Para 81

…the objective and subjective features of the case in the context of the maximum available penalty and current sentencing patterns: Islam v The Queen [2013] ACTCA 10 at [81], applying R v Campbell [2010] ACTCA 20 at [32]–[35]. The appellate court must be vigilant to ensure that, when considering these matters, it…
Islam v The Queen
[2017] ACTCA 10 Para 1

…to the weight the primary judge gave to certain considerations. The Court has made observations about this sort of complaint in Islam v The Queen [2013] ACTCA 10 at [79]-[80]:…
Islam v Director-General Justice and Community Safety Directorate (No 3)
[2016] ACTSC 27 Para 1

…with a non-parole period of four years and six months. An appeal to the Court of Appeal against his conviction and sentence was dismissed: Islam v R [2013] ACTCA 10. Whilst in prison he committed a further offence of recklessly inflicting grievous bodily harm on a fellow detainee, Darren Cassidy. He pleaded guilt…
Martin v The Queen; The Queen v Martin
[2014] ACTCA 38 Para 1

…iven greater weight to these considerations, or arrived at a different sentence based on those circumstances. As this Court observed in Islam v R [2013] ACTCA 10, such grounds effectively complain that the sentence was manifestly excessive. In Hanania v The Queen [2012] NSWCCA 220, Button J, with whom Hoeben JA an…
Martin v The Queen
[2015] ACTCA 38 Para 1

…iven greater weight to these considerations, or arrived at a different sentence based on those circumstances. As this Court observed in Islam v R [2013] ACTCA 10, such grounds effectively complain that the sentence was manifestly excessive. In Hanania v The Queen [2012] NSWCCA 220, Button J, with whom Hoeben JA an…
Jovanovic v The Queen
[2015] ACTCA 29 Para 1

…The primary judge considered two relevant, comparable cases: lslam v The Queen [2013] ACTCA 10 and Munro v The Queen [2014] ACTCA 11. Each of those cases was objectively very serious. In each case, a sentence of nine years’ imprisonment was imposed. But, as the primary judge noted, since the commission of the offe…
Islam v Director-General of the Justice and Community Safety Directorate
[2015] ACTSC 20 Para 1

…by Mr Islam against conviction and sentence was dismissed by the Court of Appeal as was the Crown appeal against sentence: see Isa Islam v The Queen [2013] ACTCA 10.…
Bui v The Queen
[2015] ACTCA 5 Para 1

…499 at 505 and Cranssen v The King (1936) 55 CLR 509 at 519-20. They have been followed many times in this Court. See, for example, Islam v The Queen [2013] ACTCA 10 at [77].…
R v Duffy
[2014] ACTCA 53 Para 1

…the objective and subjective features of the case in the context of the maximum available penalty and current sentencing patterns: Islam v The Queen [2013] ACTCA 10 at [81], applying R v Campbell [2010] ACTCA 20 at [32]–[35]. The appellate court must be vigilant to ensure that, when considering these matters, it…
Monfries v The Queen
[2014] ACTCA 46 Para 1

…See also Barbaro v The Queen (2014) 88 ALJR 372 at [41]; Munda v Western Australia (2013) 249 CLR 600; and Islam v The Queen [2013] ACTCA 10 (Refshauge, Burns and Marshall JJ).…
The Queen v Miroslav Jovanovic
[2014] ACTSC 157 Para 1

…on was drawn to two decisions of the Court of Appeal in respect of the offence of intentionally inflicting grievous bodily harm. In Islam v The Queen [2013] ACTCA 10, Mr Islam attacked the victim in a shop with a knife and stabbed him a number of times, and also smashed his head into the floor several times. One o…
Sladic v Proud
[2013] ACTSC 232 Para 1

…Eisenach [2011] ACTCA 2 at [38]-[40]; R v Meyboom [2012] ACTCA 48 at [52]-[53]; Balthazaar v The Queen [2012] ACTCA 26 at [64] and Islam v The Queen [2013] ACTCA 10 at [79]-[84].…

View all 13 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Holder
[2019] SASCFC 73

…ationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must a…
Hanania v R
[2012] NSWCCA 220 Para 1

…As Button J, with whom Hoeben JA and Johnson J agreed, said in Hanania v The Queen [2012] NSWCCA 220 at [33]:…
R v Chatfield
[2012] ACTCA 32 Para 1

…The third principle, however, no longer represents the law in this Territory. See R v Chatfield [2012] ACTCA 32 at [72]. Apart from this modification, these principles have been approved in this Court in R v Eisenach [2011] ACTCA 2 at [8]-[10] and R v TW (2011) 6 ACTLR 18 at 20; [4], 29; [71] and 38; [120].…
Balthazaar v The Queen
[2012] ACTCA 26 Para 1

…a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime.” See also Balthazaar v The Queen [2012] ACTCA 26 at [55]-[58].…
Ashdown v The Queen
[2011] VSCA 408 Para 1

…us and serious response. The Courts have always regarded the use of knives as seriously aggravating an offence. See, for example, Ashdown v The Queen [2011] VSCA 408 at [20]; R v Jajou (2009) 196 A Crim R 370 at 386; [72]. The education of Mr Islam and his prospects of reform led her Honour to impose a lenient non…
R v Islam
[2011] ACTSC 32 Para 1

…In her Honour’s decision, R v Islam [2011] ACTSC 32 at [3], her Honour noted that “[m]uch of the evidence in the Crown case was not disputed.”…
R v Thorn
[2010] ACTCA 10 Para 33

…See also R v Thorn [2010] ACTCA 10 (at [33]). 33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the partic…
Hawkins v Hawkins
[2009] ACTSC 148

…32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be ac…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
R v Cassidy
[2008] ACTSC 13 Para 1

…red to two authorities which it said showed matters of principle that were relevant. Reference was made to R v Mitchell and Gallagher and R v Cassidy [2008] ACTSC 13.…
Rama v The Queen
[2006] ACTCA 25 Para 1

…d when a court of criminal appeal has received a conspectus of comparable sentences, identifying relevant characteristics, as in Rama v The Queen [2006] ACTCA 25.…
Markarian v The Queen
[2005] HCA 25 Para 1

…the offence, namely fifteen years imprisonment was the starting point. Such may be accepted. As the High Court has observed in Markarian v The Queen (2005) 228 CLR 357 at 372; [31]:…
Wong v The Queen
[2001] HCA 64 Para 1

…single result which takes due account of all the relevant factors, namely to arrive at an “instinctive synthesis” as set out in Wong v The Queen (2001) 207 CLR 584 at 611; [75].…
Inge v The Queen
[1999] HCA 55 Para 1

…The relationship between the two periods has, however, been the subject of judicial comment. In Inge v The Queen (1999) 199 CLR 295 at 302; [6]-[9], Gleeson CJ, Gaudron, Hayne and Callinan JJ commented on the discretion in fixing a non-parole period as follows:…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…The Crown further referred to the caution of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, in relation to the second principle referred to by the Court, as follows:…
Power v The Queen
[1974] HCA 26 Para 1

…f the non-parole and parole periods of imprisonment have been authoritatively stated by Barwick CJ, Menzies Stephen and Mason JJ in Power v The Queen (1974) 131 CLR 623 at 627-8 as follows:…
House v R
[1936] HCA 40 Para 1

…quate or excessive. The Court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King (1936) 55 CLR 499 at 504-5, or where there is such manifest inadequacy or excess in the sentence as to indicate error.…
Lowe v R
[1984] HCA 46

…e relationship, or an appropriate proportionality, between a head sentence and a minimum term or non-parole period. For example, in Lowe v The Queen [(1984) 154 CLR 606)] Gibbs CJ said [ Lowe (1984) 154 CLR 606 at 610]:…
House v The King
63 WN 176 Para 1

…he sentence inadequate or excessive. The Court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King (1936) 55 CLR 499 at 504-5, or where there is such manifest inadequacy or excess in the sentence as to indicate error.…

Legislation cited in this decision · 4

Crimes (Sentencing) Act 2005 (ACT)
33 2 mentions
Supreme Court Act 1933 (ACT)
68B 2 mentions (from Para 1)
Victims of Crime (Financial Assistance) Act 1983 (ACT)
54 2 mentions (from Para 1)
Parole of Prisoners Act 1966 (NSW)
1 mention