Naqvi v The Queen - [2017] ACTCA 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Naqvi v The Queen
Citation:	[2017] ACTCA 52
Hearing Date:	7 November 2017
DecisionDate:	10 November 2017
Before:	Mossop and Jagot JJ, and Robinson AJ
Decision:	Appeal dismissed. The sentences are confirmed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – unlawful confinement of another person – sexual intercourse without consent – recklessly inflicting actual bodily harm – whether sentence was manifestly excessive – serious sexual and other assaults committed during confinement the subject of separate charges – length of sentence for unlawful confinement – relationship between sentence for unlawful confinement and sentences for sexual and other assaults committed during course of confinement – sentence not manifestly excessive – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), ss 23, 34, 54(1)
Cases Cited:	Dalton v The Queen [2015] ACTCA 48 R v Naqvi [2016] ACTSC 345 R v Williams [2016] ACTSC 389 Singh v The Queen [2015] ACTCA 65
Parties:	Syed Qasim Naqvi (Appellant) The Queen (Respondent)
Representation:	Counsel K Archer (Appellant) M Jones (Respondent)
Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 58 of 2016
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 8 November 2016 Case Title: R v Naqvi Citation: [2016] ACTSC 345

THE COURT:

Introduction

The appellant pleaded guilty to four counts of sexual intercourse without consent (Crimes Act 1900 (ACT), s 54(1)). Each count was a rolled-up count covering a number of sexual assaults. He also pleaded to one count of unlawful confinement (Crimes Act, s 34) and one count of recklessly inflicting actual bodily harm (Crimes Act, s 23). Those offences occurred when the appellant confined the complainant for eight days during which he sexually assaulted her, made threats to seriously harm her and forced her to carve his initials into her arm.

On 9 November 2016 Burns J sentenced the appellant to 13 years and eight months imprisonment. A non-parole period of eight years and two months was set. The sentence was backdated to commence on 8 April 2015, the date of the appellant’s arrest: see R v Naqvi [2016] ACTSC 345.

The appellant’s ground of appeal asserts that the sentences were manifestly excessive and that the overall sentence was manifestly excessive. In his written and oral submissions, the appellant identified his specific challenge to the sentence for count 1 on the indictment, the charge of unlawful confinement, as being the reason that the overall sentence was manifestly excessive. There were two distinct aspects to this challenge: the length of that sentence and the degree of cumulation between the sentence on that count and the sentence on count 3.

The sentences imposed are summarised in the following table:

Count

Sentence

Dates

Accumulation

Count 1: Unlawful confinement

4 years, 8 months

8 April 2015 –
7 December 2019

-

Count 3: Sexual intercourse without consent

7 years, 10 months

8 February 2016 –

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 Naqvi v The Queen

Details

AGLC: Naqvi v The Queen [2017] ACTCA 52
Case: [2017] ACTCA 52
Decision Date: 10 November 2017

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Naqvi, following his conviction for unlawful confinement of another person. The appeal was heard by Mossop and Jagot JJ, and Robinson AJ.

The primary legal issue before the Court was whether the sentence imposed for the unlawful confinement was manifestly excessive, particularly in light of the serious sexual and other assaults committed by the appellant during the period of confinement, which were the subject of separate charges. The Court was required to consider the relationship between the sentence for the unlawful confinement and the sentences for the associated assaults.

The Court reasoned that the sentence for unlawful confinement was not manifestly excessive. It considered the gravity of the offence of unlawful confinement itself, and how it related to the other offences committed during that confinement. The Court determined that the sentencing judge had properly taken into account all relevant factors, including the seriousness of the assaults, when imposing the sentence for unlawful confinement.

The appeal was dismissed, and the sentences imposed were confirmed.

Orders

Orders of the court

Appeal dismissed. The sentences are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Count	Sentence	Dates	Accumulation
Count 1: Unlawful confinement	4 years, 8 months	8 April 2015 – 7 December 2019	-
Count 3: Sexual intercourse without consent	7 years, 10 months	8 February 2016 –