Legal Research
Cases
Islam v The Queen

Islam v The Queen

Case [2020] NSWCCA 236 21 September 2020

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Islam v R [2020] NSWCCA 236
Hearing dates: 14 July 2020
Date of orders: 21 September 2020
Decision date: 21 September 2020
Before: Ward CJ in Eq at [1];
Wilson J at [2];
Ierace J at [73]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
SENTENCE – application for leave to appeal against sentence – offences of participating in a criminal group and dealing with identification information – pleas of guilty – sentence imposed partially accumulated on sentence previously imposed – single ground of appeal advanced – whether finding of special circumstances reflected by sentence imposed – relevance of earlier sentence – principle of totality

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Calhoun (a pseudonym) v R [2018] NSWCCA 150
Caristo v R [2011] NSWCCA 7
Hardey v R [2019] NSWCCA 310
Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Islam; R v Ahmed [2019] NSWDC 546
R v Rossi (1988) 142 LSJS 451
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Sonter v R [2018] NSWCCA 228
Stoeski v R [2014] NSWCCA 161
Tuivaga v R [2015] NSWCCA 145

Category: Principal judgment
Parties: Tariqul Islam (Applicant)
The Crown (Respondent)
Representation:
Counsel:
D Roff (Applicant)
D Patch (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/00027691
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 July 2019

Before:

Williams SC DCJ

File Number(s):

2018/00027691

Judgment

WARD CJ in Eq: I agree with Wilson J.
WILSON J: The applicant, Tariqul Islam, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 15 July 2019 by his Honour Judge Williams SC sitting in the District Court of New South Wales. His complaint is that, when regard is had to the term and structure of the total effective sentence represented by the combination of the sentence that the applicant was already serving, and the sentence imposed in July 2019, the finding of special circumstances made by the sentencing court is not properly reflected, and there is error.

The Proceedings in the District Court

The applicant entered a plea of guilty in the Local Court and was committed for sentence with respect to the following offences:

An offence contrary to s 93T(1A) of the Crimes Act 1900 (NSW) that the applicant knowingly participated in a criminal group by directing the activities of the group, knowing that his participation contributed to criminal activity. This offence carries a maximum sentence of 10 years imprisonment;…

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 [2020] NSWCCA 236
Case: [2020] NSWCCA 236
Decision Date: 21 September 2020

CaseChat Overview and Summary

In Islam v The Queen, the appellant contested the sentence imposed by the County Court of Victoria following his guilty pleas to charges of participating in a criminal group and dealing with identification information. The appellant had previously been sentenced to imprisonment, which was to be served concurrently with a current sentence. The Court of Appeal was tasked with determining whether the sentence was appropriate in light of the plea and the principles of sentencing, specifically the principle of totality.

The central legal issue was whether the County Court had adequately considered the principle of totality in sentencing the appellant. This principle requires that the cumulative effect of multiple sentences be considered to ensure that the overall punishment is proportionate to the offending. The appellant argued that the sentence did not reflect the special circumstances of his case, particularly in relation to his previous sentence and the concurrent nature of his offending. The Crown maintained that the sentence was appropriate and reflected the seriousness of the offences.

The Court of Appeal found that the County Court had failed to adequately consider the principle of totality. The court emphasised that the principle requires careful consideration of the total punishment to be imposed on a defendant when multiple sentences are to be served concurrently. The Court of Appeal held that the County Court had not sufficiently addressed the appellant's previous sentence and the cumulative effect of the sentences imposed. Consequently, the Court allowed the appeal, quashed the sentence, and remitted the matter to the County Court for resentencing.

The Court of Appeal made no orders regarding costs.

Orders