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Majid v The Queen

Majid v The Queen

Case [2016] NSWCCA 289 9 December 2016

Appeal

Limitation Periods

Sentencing

Untreated Mental Issues

Post Traumatic Stress Disorder

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Majid v R [2016] NSWCCA 289
Hearing dates: 19 October 2016
Date of orders: 09 December 2016
Decision date: 09 December 2016
Before: Payne JA at [1]
Price J at [2]
Davies J at [3]
Decision:
(1)   Appeal upheld.

(2)   Quash the sentence for Count 1 imposed in the District Court on 18 December 2008.

(3)   Quash the sentence for Count 2 imposed by the Court of Criminal Appeal on 11 June 2010.

(4)   In lieu, sentence the Appellant as follows:

(a)   On Count 1 a non-parole period of seven years commencing 13 April 2008 and expiring 12 April 2015 with an additional term of four years six months expiring 12 October 2019;

(b)   On Count 2 a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018 with an additional term of four years six months expiring 12 October 2022.

(c)   The earliest date on which the Appellant will eligible for parole will be 12 April 2018.
(5)   Dismiss the appeal as it concerns Count 3.
Catchwords: CRIMINAL LAW – appeal – appeal against sentence – two counts of aggravated sexual intercourse without consent and one count of detain for advantage – appellant sentenced pre-Muldrock – earlier appeal largely unsuccessful – part 7 application – matter referred to Court of Criminal Appeal – whether sentences affected by Muldrock error – whether sentences manifestly excessive – Crown concedes Muldrock error – need to re-sentence – whether lesser sentence warranted – objective seriousness – progress towards rehabilitation – appellant with untreated mental issues including Post Traumatic Stress Disorder from childhood – accumulation and concurrency – one sentence expired – whether expired sentence relevant for accumulation and concurrency of other offences – special circumstances – appeal allowed in part
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Application by Darush Majid pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 709
Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562
Davis v R [2015] NSWCCA 90
Des Rosiers v R [2016] NSWCCA 196
Hitchcock v R [2016] NSWCCA 226
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R [2016] NSWCCA 255
Louizos v R [2014] NSWCCA 242
Majid v R [2010] NSWCCA 121
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
YY v R [2016] NSWCCA 124
Category: Principal judgment
Parties: Darush Majid (Appellant)
Crown (Respondent)
Representation:
Counsel:
D Kell SC and M Pulsford (Crown)
G Bashir SC and J Roy (Appellant)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/135562
Decision under appeal

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 The Queen

Details

AGLC: Majid v The Queen [2016] NSWCCA 289
Case: [2016] NSWCCA 289
Decision Date: 09 December 2016

CaseChat Overview and Summary

The case of Majid v The Queen involved the appellant who was convicted on two counts of aggravated sexual intercourse without consent and one count of detain for advantage. The appeal centred on the sentence imposed by the trial judge prior to the decision in Muldrock v The Queen, which altered the approach to sentencing for aggravated sexual offences. The appellant’s earlier appeal was largely unsuccessful, but a part 7 application was made, leading to the matter being referred to the Court of Criminal Appeal. The central legal issues were whether the sentences were affected by the Muldrock error and if they were manifestly excessive.

The Court of Criminal Appeal found that the Crown conceded there was a Muldrock error in the original sentencing, necessitating a re-sentencing. The court examined whether a lesser sentence was warranted, considering the objective seriousness of the offences and the appellant's progress towards rehabilitation. The appellant had untreated mental health issues, including Post Traumatic Stress Disorder stemming from childhood experiences, which were relevant to the assessment of the appropriate sentence. The court also considered the impact of the accumulation and concurrency of the sentences, and whether an expired sentence could be relevant for the purposes of accumulating and concurrent sentencing of the other offences. Special circumstances, including the appellant's mental health, were taken into account. The court concluded that the appeal was allowed in part, leading to a re-sentencing by the Supreme Court.

Orders