Islam v The Queen

[2006] ACTCA 21

MIZAN ISLAM v THE QUEEN [2006] ACTCA 21 (17 November 2006)

CRIMINAL LAW – Sentence – appeal against severity – whether otherwise appropriate sentence should be modified to avoid risk of deportation.

Criminal Code 2002, s 310
Migration Act 1958 (Cth), s 501
Crimes (Sentencing) Act 2005, s 33

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577
Te v Minister for Immigration and Multicultural and Ethnic Affairs (1999) 88 FCR 264
Seyfarth v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 105
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v Mao: Ex Parte Attorney-General of Queensland [2006] QCA 99
R v Berlinsky [2005] SASC 316
Re Patterson; Ex parte Taylor [2001] HCA 51 (2001) 207 CLR 391

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

No. ACTCA 27-2006
No. SC 266 of 2005

Judges:         Higgins CJ, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:            17 November 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 27-2006
  )          No. SC 266 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN: MIZAN ISLAM

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  17 November 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 27-2006
  )          No. SC 266 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

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

BETWEEN:MIZAN ISLAM

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  17 November 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against sentence.

1. The appellant pleaded guilty before a judge of this Court to one count of aggravated robbery, contrary to s 310 of the Criminal Code 2002.  The maximum penalty for this offence is 25 years imprisonment.

1. He was convicted and sentenced to four years imprisonment with a non-parole period of 18 months.  The head sentence and the non-parole period were to date from 22 August 2005 when he was taken into custody.

1. In committing that offence, the appellant also breached a recognizance to be of good behaviour.

1. On 1 July 2005 the appellant had been convicted of intentionally inflicting actual bodily harm.  He was sentenced in the Magistrates Court to 12 months imprisonment which was suspended upon him entering into a recognizance for two years under supervision to address his drug, alcohol and anger management issues.

1. Because that recognizance had been breached, the sentencing judge ordered him to serve the period of 12 months imprisonment but directed that the sentence also be served from 22 August 2005.

1. Shortly after midnight on 21 August 2005, the appellant was in the company of David Alexander who was driving…