R v Al Majedi - [2024] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v Al Majedi [2024] QCA 27

PARTIES:

R
v
AL MAJEDI, Zahra
(applicant)

FILE NO/S:

CA No 181 of 2023
DC No 213 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 8 September 2023 (Gardiner DCJ)

DELIVERED ON:

8 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2024

JUDGES:

Morrison and Dalton JJA and Fraser AJA

ORDERS:

1.   The application for leave to appeal against sentence is allowed.

2.   The sentence is set aside.

3.   The applicant be discharged without a conviction upon her giving recognisance that she will be of good behaviour for six months, during which time the security bond already given should remain in place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s father stored tobacco in the unit in which the applicant lived – where the applicant pleaded guilty to possessing tobacco in circumstances where it was reasonable to suspect that excise duty had not been paid (s 308-10 Taxation Administration Act 1953 (Cth)) – where the unpaid excise was close to $1 million – where the applicant was sentenced to two months imprisonment and released immediately upon giving a recognisance in the sum of $500, and to be of good behaviour for a period of 12 months – where a conviction was recorded – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant is studying nursing and recording a conviction could pose difficulties to her registration as a nurse and thus, prospects of obtaining steady employment – where the applicant had a life marked by trauma, adversity and abuse – where the applicant was subject to paternal control – whether the two-stage test under s 19B(1) of the Crimes Act 1914 (Cth) was satisfied – where the sentencing judge considered a s 19B bond, but did not appear to consider whether a sentence of probation, without a conviction being recorded, would be sufficient punishment – where s 17A(1) of the Crimes Act 1914 (Cth) requires a court to be satisfied that all other available sentences are inappropriate before imposing a sentence of imprisonment – whether the applicant’s case involved exceptional circumstances

Crimes Act 1914 (Cth), s 17A(1), s 19B(1), s 20(1)(a), s 20AB
Taxation Administration Act 1953 (Cth), s 308-10

Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332, cited
Matta v ACCC [2000] FCA 729, cited
R v Zhang (2017) 256 A Crim R 113; [2017] SASCFC 5, distinguished

COUNSEL:

A S McDougall for the applicant
S J Bain for the respondent

SOLICITORS:

Salt Legal for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

MORRISON JA: I agree with Fraser AJA.
DALTON JA: This is…

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 Al Majedi

Details

AGLC: R v Al Majedi [2024] QCA 27
Case: [2024] QCA 27
Decision Date: 8 March 2024

CaseChat Overview and Summary

In the matter of R v Al Majedi, the applicant sought leave to appeal against her sentence, contending that it was manifestly excessive. The case arose from the applicant's guilty plea to possessing tobacco under circumstances that suggested excise duty had not been paid, with the unpaid duty amounting to nearly $1 million. The applicant was sentenced to two months' imprisonment, immediately released on a recognisance of $500, and ordered to be of good behaviour for 12 months, with a conviction recorded.

The primary legal issue was whether the sentence was manifestly excessive, considering the two-stage test under section 19B(1) of the Crimes Act 1914 (Cth). The applicant argued that her prospects of obtaining steady employment, particularly in nursing, could be adversely affected by a recorded conviction. Additionally, the applicant submitted that her history of trauma, adversity, and abuse, coupled with paternal control, constituted exceptional circumstances warranting a lesser sentence. The court considered whether the sentencing judge adequately explored alternatives such as a sentence of probation without a conviction, as required by section 17A(1) of the Crimes Act 1914 (Cth).

The court found that the sentence was indeed manifestly excessive, noting that the sentencing judge did not adequately consider the potential impact of a conviction on the applicant's future employment and did not explore the appropriateness of a sentence of probation without a conviction. The court concluded that the applicant's circumstances warranted a more lenient sentence. Accordingly, the application for leave to appeal against the sentence was allowed, the original sentence was set aside, and the applicant was discharged without a conviction, on the condition of giving a recognisance to be of good behaviour for six months.

Orders

Orders of the court

1. The application for leave to appeal against sentence is allowed.

2. The sentence is set aside.

3. The applicant be discharged without a conviction upon her giving recognisance that she will be of good behaviour for six months, during which time the security bond already given should remain in place.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Al Majedi [2024] QCA 27
PARTIES:	R v AL MAJEDI, Zahra (applicant)
FILE NO/S:	CA No 181 of 2023 DC No 213 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 8 September 2023 (Gardiner DCJ)
DELIVERED ON:	8 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2024
JUDGES:	Morrison and Dalton JJA and Fraser AJA
ORDERS:	1. The application for leave to appeal against sentence is allowed. 2. The sentence is set aside. 3. The applicant be discharged without a conviction upon her giving recognisance that she will be of good behaviour for six months, during which time the security bond already given should remain in place.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant’s father stored tobacco in the unit in which the applicant lived – where the applicant pleaded guilty to possessing tobacco in circumstances where it was reasonable to suspect that excise duty had not been paid (s 308-10 Taxation Administration Act 1953 (Cth)) – where the unpaid excise was close to $1 million – where the applicant was sentenced to two months imprisonment and released immediately upon giving a recognisance in the sum of $500, and to be of good behaviour for a period of 12 months – where a conviction was recorded – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant is studying nursing and recording a conviction could pose difficulties to her registration as a nurse and thus, prospects of obtaining steady employment – where the applicant had a life marked by trauma, adversity and abuse – where the applicant was subject to paternal control – whether the two-stage test under s 19B(1) of the Crimes Act 1914 (Cth) was satisfied – where the sentencing judge considered a s 19B bond, but did not appear to consider whether a sentence of probation, without a conviction being recorded, would be sufficient punishment – where s 17A(1) of the Crimes Act 1914 (Cth) requires a court to be satisfied that all other available sentences are inappropriate before imposing a sentence of imprisonment – whether the applicant’s case involved exceptional circumstances Crimes Act 1914 (Cth), s 17A(1), s 19B(1), s 20(1)(a), s 20AB Taxation Administration Act 1953 (Cth), s 308-10 Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332, cited Matta v ACCC [2000] FCA 729, cited R v Zhang (2017) 256 A Crim R 113; [2017] SASCFC 5, distinguished
COUNSEL:	A S McDougall for the applicant S J Bain for the respondent
SOLICITORS:	Salt Legal for the applicant Director of Public Prosecutions (Commonwealth) for the respondent