Majid v The Queen (No. 2)

[2016] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Majid v R (No. 2) [2016] NSWCCA 311
Hearing dates:	On the papers
Date of orders:	16 December 2016
Decision date:	16 December 2016
Before:	Payne JA at [1] Price J at [1] Davies J at [1]
Decision:	Amend the sentence for count 2 imposed on 9 December 2016 to read:  On Count 2 a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018 with an additional term of three years and ten months expiring 12 February 2022.
Catchwords:	CRIMINAL LAW – sentence – error in fixing balance of term – sentence adjusted under rule 50C
Legislation Cited:	Criminal Appeal Rules 1952 (NSW)
Cases Cited:	Majid v R [2010] NSWCCA 121 Majid v R [2016] NSWCCA 289
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	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 December 2008 Before: Puckeridge DCJ File Number(s): 2007/11853

Judgment OF THE COURT

1. The Court gave judgment on 9 December 2016 upholding the appeal and resentencing the Appellant: Majid v R [2016] NSWCCA 289. The new sentence was as follows:

(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.

2. The Appellant had initially been sentenced in respect of Count 2 to a non-parole period of ten years commencing 13 October 2008 and expiring 12 October 2018 with an additional term of four years expiring 12 October 2022. On appeal to this Court in 2010 the Appellant was resentenced on Count 2 to a non-parole period of ten years but with the balance of term reduced to three years and four months so that the sentence expired 12 February 2022: Majid v R [2010] NSWCCA 121.

3. The Appellant now makes application under r 50C Criminal Appeal Rules 1952 (NSW) asserting that the sentence imposed for Count 2 on 9 December 2016 was a slip and did not reflect this Court’s intention as expressed in the judgment.

4. The Court made clear at [72] and [73] that it was intended to adjust the balance of the term because of a finding of special circumstances. However, the Court was constrained by the overall sentence and, in that way, did not intend to increase the sentence. Further, the sentences were adjusted to better reflect the accumulation that was appropriate for the separate offending constituted by Counts 1 and 2.

5. When the Court came to resentence it erroneously resentenced on the basis that the existing balance of term expired on 12 October 2022 when, by reason of the Court of Criminal Appeal’s adjustment to the sentence in 2010, the balance of term expired on 12 February 2022.

6. Accordingly, the sentence imposed on 9 December 2016 in respect of Count 2 is amended and the Appellant is sentenced as follows:

On Count 2 a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018 with an additional term of three years and ten months expiring 12 February 2022.

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Decision last updated: 16 December 2016