R v. Ahmadyar - [2007] QCA 342

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ahmadyar [2007] QCA 342

PARTIES:

R
v
AHMADYAR, Osman
(applicant)

FILE NO/S:

CA No 93 of 2007
DC No 3029 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

16 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2007

JUDGES:

McMurdo P, Dutney J and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal is granted
2. The appeal is allowed
3. The sentence imposed at first instance is varied and
     instead the applicant is sentenced to a period of six
     months imprisonment on each count with no
     suspension of the sentence
4. It is declared that a period of 1,341 days from
     13 January 2003 to 14 September 2006 is
     imprisonment already served under the sentence

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the appellant pleaded guilty to three counts of indecent assault – where previous to the trial the appellant was declared temporarily unfit to stand trial by the Mental Health Court and was held in custody on remand for over three and a half years – where the appellant was sentenced to six months imprisonment on each count suspended forthwith with a 12 month operational period – where the pre-sentence custody period was not declared as time served – whether there should be a declaration for time already served under the sentence – whether the sentence of 6 months imprisonment fully suspended for 12 months without a declaration for time served was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A(4)

R v Al Aiach [2006] QCA 157; CA No 93 of 2006, 12 May 2006, followed

COUNSEL:

A W Moynihan SC for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Osman Ahmadyar pleaded guilty on 10 April this year to three counts of indecent assault. These counts were contained in a 10-count indictment including two counts of common assault, seven counts of sexual assault and one count of rape. He was in custody on remand for all
10 offences for a period of over three and a half years from 13 January 2003 to 14 September 2006. The delay in finalising the case against him was because he was declared by the Mental Health Court to be temporarily unfit to stand trial after he suffered a major mental breakdown when he was charged and imprisoned without bail. After receiving extensive treatment, including involuntary electroconvulsive therapy, he gradually recovered sufficiently to stand trial on the rape offence. He was tried and acquitted of that offence in March this year. When he pleaded…

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 R v. Ahmadyar

Details

AGLC: R v Ahmadyar [2007] QCA 342
Case: [2007] QCA 342
Decision Date: 16 October 2007

CaseChat Overview and Summary

The appellant in this case pleaded guilty to three counts of indecent assault. He had previously been declared temporarily unfit to stand trial by the Mental Health Court and was held in custody on remand for over three and a half years. The appellant was sentenced to six months imprisonment on each count, suspended forthwith with a 12-month operational period. However, the pre-sentence custody period was not declared as time served. The appellant applied for leave to appeal against the sentence, arguing that the sentence of six months imprisonment fully suspended for 12 months without a declaration for time served was manifestly excessive.

The legal issues in this case were whether the sentence of six months imprisonment fully suspended for 12 months without a declaration for time served was manifestly excessive and whether there should be a declaration for time already served under the sentence. The court had to consider the principles of sentencing and the appropriate punishment for the crimes committed. The court also had to consider the appellant's pre-sentence custody period and whether it should be declared as time served under the sentence.

The court found that the sentence of six months imprisonment fully suspended for 12 months without a declaration for time served was manifestly excessive. The court noted that the appellant had been in custody on remand for over three and a half years, which was a significant period of time. The court found that the sentence did not adequately reflect the time the appellant had already served and that there should be a declaration for time already served under the sentence. The court also found that the sentence of six months imprisonment fully suspended for 12 months without a declaration for time served was not appropriate for the crimes committed. The court varied the sentence to a period of six months imprisonment on each count with no suspension of the sentence and declared that a period of 1,341 days from 13 January 2003 to 14 September 2006 was imprisonment already served under the sentence.

Orders

Orders of the court

1. Application for leave to appeal is granted

2. The appeal is allowed

3. The sentence imposed at first instance is varied and

instead the applicant is sentenced to a period of six

months imprisonment on each count with no

suspension of the sentence

4. It is declared that a period of 1,341 days from

13 January 2003 to 14 September 2006 is

imprisonment already served under the sentence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ahmadyar [2007] QCA 342
PARTIES:	R v AHMADYAR, Osman (applicant)
FILE NO/S:	CA No 93 of 2007 DC No 3029 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	16 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2007
JUDGES:	McMurdo P, Dutney J and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal is granted 2. The appeal is allowed 3. The sentence imposed at first instance is varied and instead the applicant is sentenced to a period of six months imprisonment on each count with no suspension of the sentence 4. It is declared that a period of 1,341 days from 13 January 2003 to 14 September 2006 is imprisonment already served under the sentence
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the appellant pleaded guilty to three counts of indecent assault – where previous to the trial the appellant was declared temporarily unfit to stand trial by the Mental Health Court and was held in custody on remand for over three and a half years – where the appellant was sentenced to six months imprisonment on each count suspended forthwith with a 12 month operational period – where the pre-sentence custody period was not declared as time served – whether there should be a declaration for time already served under the sentence – whether the sentence of 6 months imprisonment fully suspended for 12 months without a declaration for time served was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(4) R v Al Aiach [2006] QCA 157; CA No 93 of 2006, 12 May 2006, followed
COUNSEL:	A W Moynihan SC for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent