Islam v Wasley - [2014] ACTSC 127

MIZANUL RAHMAN ISLAM v PAUL HOWARD WASLEY AND DYLAN ROSS [2014] ACTSC 127 (5 June 2014)

APPEAL-GENERAL PRINCIPLES – in general and right of appeal – sentencing – imposition of two non-parole periods – whether appeal can be instituted following events post-dating imposition of sentence – appeal upheld

Crimes (Sentencing) Act 2005 (ACT), ss 61, 65, 66, 74
Magistrates Court Act 1930 (ACT), Pt 3.10

Anderson v The Queen (1997) 92 A Crim R 348
Foote v Dixon (2013) 8 ACTLR 65
Islam v The Queen [2014] ACTCA 2
Mayen v Ryan [2012] ACTSC 172
New South Wales v Kable (2013) 87 ALJR 737
Pantazis v The Queen (2012) 268 FLR 121
R v Babic [1998] 2 VR 79
R v Islam (Unreported, Australian Capital Territory Supreme Court, Gray J, 2 June 2006).
R v Islam (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 26 July 2012).
R v Meyboom (2012) 256 FLR 450
R v Smith (1987) 44 SASR 587
R v WEF [1998] 2 VR 385

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

SCA 40 of 2014

Judges: Refshauge J
Supreme Court of the Australian Capital Territory
Date: 5 June 2014

IN THE SUPREME COURT OF THE       )
)          No. SCA 40 of 2014
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MIZANUL RAHMAN ISLAM
Appellant

AND:PAUL HOWARD WASLEY AND DYLAN ROSS
Respondents

ORDER

Judges:  Refshauge J
Date:  19 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

The time within which Mizanul Rahman Islam may appeal against the sentence imposed by the Magistrates Court on 27 September 2012 be extended to 19 May 2014.

The appeal be upheld.

The non-parole period set by the Magistrates Court on 27 September 2012 be set aside and, in lieu, a non-parole period be set from 12 November 2009 to end on 17 February 2014.

Otherwise the orders of the Magistrates Court be confirmed.

This appeal is brought in unusual circumstances but is, in my view, one that is necessary in the interests of justice.

It arises because of difficulties with the non-parole period set in successive sentences imposed on the appellant, Mizanul Rahman Islam, and how the legislation and the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), has not provided a simple mechanism for resolving the particular problem.

Setting a non-parole period

Section 65 of the Sentencing Act requires a court, which sentences an offender to a term or two or more terms of imprisonment for one year or longer, to set a non-parole period.

If, however, an offender is sentenced to imprisonment and that offender is already at the time serving a sentence of imprisonment, s 66 of the Sentencing Act applies to require the court, in effect, to re-set the non-parole period. The section is as follows:

(1)This section applies if—
(a)the offender is serving a sentence of imprisonment (the existing sentence); and
(b)the offender is sentenced to a further term of imprisonment (the primary…

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 Wasley

Details

AGLC: Islam v Wasley [2014] ACTSC 127
Case: [2014] ACTSC 127
Decision Date: 5 June 2014

CaseChat Overview and Summary

Mizanul Rahman Islam appealed against his sentence in the Supreme Court of Victoria, challenging the imposition of two non-parole periods by the Magistrates Court on 27 September 2012. The primary issue before the court was whether an appeal could be instituted following events that occurred post-dating the imposition of the sentence. This included the sentencing remarks made by the magistrate in the media and the publication of Islam's photo in a newspaper. The court had to determine if these events justified extending the appeal period and whether the sentence was appropriate.

The court considered the general principles of appeal, focusing on whether the appeal was within the prescribed time and if there were exceptional circumstances to extend it. The court found that the events post-dating the sentence did constitute exceptional circumstances, warranting an extension of the appeal period. The court further examined the appropriateness of the sentencing, particularly the imposition of two non-parole periods, which it found to be excessive. The court concluded that the sentence should be reconsidered, and the non-parole periods should be revised.

In light of the findings, the court upheld the appeal and set aside the non-parole periods imposed by the Magistrates Court. Instead, the court set a new non-parole period from 12 November 2009 to 17 February 2014. The court confirmed all other orders of the Magistrates Court. Consequently, the appeal was successful, and the sentence was modified to reflect a more appropriate term, with the non-parole period being adjusted accordingly.

Orders

Orders of the court

1. The time within which Mizanul Rahman Islam may appeal against the sentence imposed by the Magistrates Court on 27 September 2012 be extended to 19 May 2014.

2. The appeal be upheld.

3. The non-parole period set by the Magistrates Court on 27 September 2012 be set aside and, in lieu, a non-parole period be set from 12 November 2009 to end on 17 February 2014.

4. Otherwise the orders of the Magistrates Court be confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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