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Majid v R

Majid v R

Case [2010] NSWCCA 121 11 June 2010

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Majid v R [2010] NSWCCA 121

HEARING DATE(S): 31 May 2010

JUDGMENT DATE:
11 June 2010

JUDGMENT OF: Simpson J at 1; Johnson J at 2; McCallum J at 71

DECISION: 1. Leave to appeal against sentence granted.
2. Sentence of imprisonment on the second count quashed and, in its place, the Applicant is sentenced to a non-parole period of 10 years commencing on 13 October 2008 and expiring on 12 October 2018 with a balance of term of three years and four months commencing on 13 October 2018 and expiring on 12 February 2022.
3. Appeal dismissed with respect to sentences imposed on Counts 1 and 3.
4. The earliest date upon which the Applicant will be eligible for release on parole remains 12 October 2018.

CATCHWORDS: CRIMINAL LAW - sentence following trial - aggravated sexual intercourse without consent (two counts) and detain for advantage - sexual assaults committed by restaurant manager against 15-year old employee - non-compliance with s.44 Crimes (Sentencing Procedure) Act 1999 concerning one count - claim that insufficient weight given to offender’s post-traumatic stress disorder, late expression of remorse and protective custody - whether sentences manifestly excessive - sentence varied to comply with s.44 - otherwise no error established and appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Itaoui v R [1005] NSWCCA 415; 158 A Crim R 233
Hejazi v R [2009] NSWCA 282
Stephens v R [2009] NSWCCA 240
R v Baker [2000] NSWCCA 85
Ryan v R [2009] NSWCCA 183
Cao v R [2010] NSWCCA 109
R v Stafrare (1977) 96 A Crim R 452
R v Winchester (1992) 58 A Crim R 345
R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
Clinton v R [2009] NSWCCA 276
R v Jarrold [2010] NSWCCA 69
Markarian v The Queen [2005] HCA 25; 228 CLR 357

PARTIES: Darush Majid (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/11853

COUNSEL: Mr W Dawe QC; Mr A Shearer (Applicant)
Ms J Dwyer (Respondent)

SOLICITORS: City Legal Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0236

LOWER COURT JUDICIAL OFFICER: His Honour Judge Puckeridge QC

LOWER COURT DATE OF DECISION: 18 December 2008

2007/11853

SIMPSON J
JOHNSON J
McCALLUM J
11 June 2010

DARUSH MAJID v R

Judgment

1 SIMPSON J: I agree with Johnson J.

2 JOHNSON J: The Applicant, Darush Majid, seeks leave to appeal with respect to sentences passed by his Honour Judge Puckeridge QC in the Sydney District Court on 18 December 2008.

3 The Applicant had been convicted by a jury of a number of offences, leading to the imposition of the following sentences:

(a) Count 1 - aggravated sexual intercourse without consent under s.61J(1) Crimes Act 1900 , punishable by a maximum penalty of 20 years’ imprisonment (with a standard non-parole period of 10…

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 Majid v R

Details

AGLC: Majid v R [2010] NSWCCA 121
Case: [2010] NSWCCA 121
Decision Date: 11 June 2010

CaseChat Overview and Summary

The case of Majid v R involved a restaurant manager who was found guilty of two counts of aggravated sexual intercourse without consent and one count of detaining for advantage against a 15-year-old employee. The respondent appealed against his sentences, arguing that the trial judge had failed to give sufficient weight to certain mitigating factors, and that the sentences were manifestly excessive. The mitigating factors included the offender's post-traumatic stress disorder, late expression of remorse, and the need for protective custody. The appeal was heard by the Court of Criminal Appeal, which had to determine whether the trial judge's sentencing was flawed.

The court considered the legal issues concerning the appropriate weight to be given to mitigating factors and the principle of proportionality in sentencing. The primary legal issue was whether the trial judge had erred in not adequately considering the mitigating factors presented. The court also had to assess whether the sentences imposed were manifestly excessive, taking into account the gravity of the crimes committed.

The Court of Criminal Appeal found that the trial judge had not erred in the overall approach to sentencing. However, the court identified a non-compliance with section 44 of the Crimes (Sentencing Procedure) Act 1999 concerning one of the counts. The court emphasised the importance of adhering to legislative requirements in sentencing. Despite the mitigating factors, the court held that the sentences were not manifestly excessive and that the trial judge had appropriately balanced the aggravating and mitigating factors. Consequently, the appeal was dismissed, but the sentences were varied to comply with the statutory requirements.

The final orders of the court were that the appeal was dismissed, but the sentences were varied to ensure compliance with section 44 of the Crimes (Sentencing Procedure) Act 1999. The court did not find any other errors in the sentencing process and upheld the original sentences in all other respects.

Orders