Musa v The The King - [2022] NSWCCA 221

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Musa v R [2022] NSWCCA 221
Hearing dates: 9 September 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Before: Kirk JA at [1]
Harrison J at [2]
Wright J at [25]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – aggravated breaking and entering in company and committing a serious indictable offence in circumstances of special aggravation – whether sentencing judge erred in failing to find applicant’s lack of significant record of previous convictions as a mitigating factor

Legislation Cited:
Crimes Act 1900 (NSW), s 112(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:
Meis v R [2022] NSWCCA 118
R v Price [2005] NSWCCA 285
Saunders v R [2022] NSWCCA 174
Taylor v R [2018] NSWCCA 255

Category: Principal judgment
Parties: Yasir Musa (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Lange (Applicant)
D Scully (Respondent)
Solicitors:
Oxford Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/211329
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 April 2021

Before:

Culver DCJ

File Number(s):

2019/00211329

Headnote

[This headnote is not to be read as part of the judgment]

The appellant, Yasir Musa, pleaded guilty in the Local Court to aggravated breaking and entering in company and committing a serious indictable offence, namely armed robbery with wounding, in circumstances of special aggravation, being intentionally inflicting grievous bodily harm contrary to s 112(3) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is one of imprisonment for 25 years with a standard non-parole period of 7 years.

Following his committal to the District Court for sentence, her Honour Culver DCJ sentenced Mr Musa to an aggregate sentence of imprisonment for 15 years with a non-parole period of 10 years. Her Honour indicated that the sentences she would have imposed if an aggregate sentence had not been imposed were imprisonment for 11 years and 3 months with a non-parole period of 7 years and 6 months for each offence.

Mr Musa’s record of previous convictions consisted of only one dishonesty offence from August 2016 and some traffic matters.

Mr Musa sought leave to appeal against the aggregate sentence imposed on him.

The principal issue before this Court was:

whether the sentencing judge erred in failing to find Mr Musa’s lack of significant record of previous convictions as a mitigating factor.

Held by the Court, granting leave to appeal and dismissing the appeal:

Per Harrison J (Kirk JA and Wright J agreeing):

The sentencing judge’s reference in terms to Mr Musa’s “limited criminal history” should be understood as a reference to the absence of “any significant record of previous convictions”. Her Honour’s comparison between Mr Musa’s “limited criminal history” and “a fully clear criminal history” serves to indicate that her Honour considered that Mr Musa should be afforded some leniency,…

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 Musa v The The King

Details

AGLC: Musa v The The King [2022] NSWCCA 221
Case: [2022] NSWCCA 221
Decision Date: 14 October 2022

CaseChat Overview and Summary

The appellant, Musa, was convicted of aggravated breaking and entering in company and committing a serious indictable offence in circumstances of special aggravation. Musa appealed against his sentence, arguing that the sentencing judge erred by not considering his lack of a significant record of previous convictions as a mitigating factor. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge correctly identified and weighed the mitigating and aggravating factors in determining the sentence, and whether the failure to consider the appellant’s lack of significant prior convictions as a mitigating factor constituted a significant error in the sentencing process. The central issue was whether the sentencing judge’s omission of this mitigating factor was so significant that it rendered the sentence unjust and required correction on appeal.

The court considered the principles of sentencing in criminal cases, emphasising the importance of a balanced approach in weighing aggravating and mitigating factors. The court noted that while the sentencing judge had considered several factors, the absence of a significant prior criminal record was a relevant mitigating factor that should have been taken into account. The omission of this factor was deemed to have the potential to affect the overall fairness and proportionality of the sentence. The court found that the failure to consider this mitigating factor was a significant error that impacted the sentence’s integrity.

The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration. The court ordered that the sentencing judge should reassess the sentence with the inclusion of the mitigating factor of the appellant’s lack of significant prior convictions. This reassessment aimed to ensure a just and balanced sentence reflective of all relevant considerations.

Orders