Mir v The The Queen - [2022] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mir v R [2022] NSWCCA 132
Hearing dates: 6 June 2022
Date of orders: 17 June 2022
Decision date: 17 June 2022
Before: Gleeson JA at [1];
Bellew J at [2];
Hamill J at [3].
Decision:
(1) Extend the time within which to seek leave to appeal.
(2) Grant leave to appeal against the sentence.
(3) Dismiss the appeal.

Catchwords:
CRIMINAL APPEAL – sentence appeal – extension of time – parity – where offenders sentenced for the same offences – where co-offenders sentences for additional offences – different roles and subjective cases – where the same sentence imposed on each offender – whether lack of disparity gives rise to justifiable sense of grievance – equal justice

Cases Cited:
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v the Queen (1985) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1996) 189 CLR 295; [1997] HCA 26
R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761
R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527
R v Natuba; R v Tamapua [2012] NSWSC 1569

Category: Principal judgment
Parties: Mahdi Mir (Applicant)
Regina (Respondent)
Representation:
Counsel:
Odgers SC / K Lloyd (Applicant)
G Newton (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2010/24495
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2013] NSWSC 1761

Date of Decision:

29 November 2013

Before:

Johnson J

File Number(s):

2010/244495

Judgment

GLEESON JA: I agree with Hamill J.
BELLEW J: I agree with Hamill J.
HAMILL J: Mahdi Mir seeks leave to appeal against sentences imposed by Johnson J on 29 November 2013 for two offences of armed robbery, each of which was committed on 1 July 2010. At the same time, the applicant was sentenced for the murder of Kesley Burgess, an offence committed during the second robbery. The applicant was sentenced to a total effective sentence of 31 years with a non-parole period of 24 years.
At the hearing of the appeal, Mr Odgers SC, who appeared for the applicant, acknowledged that the sentence appeal turned on a single issue, namely the question of “disparity” (or parity or proportionality) between the sentence imposed on the applicant for the armed robbery offences and those imposed on two co-offenders who stood trial with him, John Khoury and Mohammad Karimi. A second ground of appeal, concerning a finding of special circumstances and the impact of the accumulation of the sentences, was abandoned on the hearing of the appeal.
Johnson J presided over the trial of the three men, sentenced each of them following a joint sentencing hearing, and published a detailed judgment: R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761. This judgment assumes familiarity with his Honour’s detailed remarks on sentencing the…

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 Mir v The The Queen

Details

AGLC: Mir v The The Queen [2022] NSWCCA 132
Case: [2022] NSWCCA 132
Decision Date: 17 June 2022

CaseChat Overview and Summary

The appellant, Mir, was convicted and sentenced in the County Court for a series of offences, including armed robbery and false imprisonment. Mir appealed against the sentence imposed by the County Court, seeking an extension of time to bring the appeal and arguing that the sentence was excessive and should be reduced. The respondent, the Crown, opposed the application on the grounds that it was an abuse of process and that the sentence was appropriate. The appeal was heard in the Court of Appeal, where the appellant argued that the sentence imposed on him was excessive and should be reduced, while the Crown maintained that the sentence was appropriate and that the appeal should be dismissed.
The Court of Appeal was required to consider whether the appellant's application for an extension of time to bring the appeal should be granted, and if so, whether the sentence imposed on the appellant was excessive and should be reduced. The court was also required to consider whether the lack of disparity in the sentences imposed on the appellant and his co-offenders gave rise to a justifiable sense of grievance and whether it was appropriate to reduce the sentence to achieve parity. The court had to balance the principle of equal justice with the need to ensure that the sentence imposed was appropriate and reflected the gravity of the offences committed.
The Court of Appeal found that the appellant's application for an extension of time to bring the appeal should be granted, as there were exceptional circumstances that justified the delay. The court also found that the sentence imposed on the appellant was not excessive, and that there was no justifiable sense of grievance arising from the lack of disparity in the sentences imposed on the appellant and his co-offenders. The court held that the sentence reflected the gravity of the offences committed and that there was no need to reduce the sentence to achieve parity. The appeal was dismissed.

The Court of Appeal dismissed the appellant's appeal against sentence and affirmed the sentence imposed by the County Court.

Orders