R v K - [2003] NSWCCA 401

CITATION: Regina v Baquayee [2003] NSWCCA 401

HEARING DATE(S): 12/12/03

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Sully J at 1; Barr J at 2; Newman AJ at 3

DECISION: 1. Appeal upheld; 2. Sentences imposed by His Honour Judge Coorey on the 17th of March 2003 quashed; 3. In relation to Count 2 of the indictment, namely the crime of malicious wounding with intent to do grievous bodily harm involving Ahmed Marnosh Zikria, in lieu substitute a head sentence of 8 years commencing on the 5th of June 2002 and expiring on the 4th of June 2010 with a non-parole period of 4 years and 9 months commencing on the 5th of June 2002 and expiring on the 4th of March 2007; 4. In the case of the crime of malicious wounding with intent to do grievous bodily harm involving Mustafa Zikria, in lieu substitute a head sentence of 10 years commencing on the 5th of June 2002 and expiring on the 4th of June 2012 with a non-parole period of 6 years commencing on the 5th of June 2002 and expiring on the 4th of June 2008.

CATCHWORDS: Criminal Law - Crown Appeal - maliciously wound with intent to do grievous bodily harm - manifestly inadequate sentence - totality - double jeopardy.

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Crimes Act 1900
Crimes (Sentencing Procedure) Act

CASES CITED: Pearce (1998) 194 CLR 610
R v Loh 127 A Crim R 577
House (1936) 55 CLR 409
Dinsdale (2000) 202 CLR 321
Wong (2001) 76 ALJR 79

PARTIES :
Regina
Mohammed Tamin Baquayee

FILE NUMBER(S): CCA 60155/2003

COUNSEL: Crown:
P. Miller
Baquayee:
H. Dhanji

SOLICITORS: Crown:
A. Bhat
Baquayee:
J. Witmer

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1200

LOWER COURT
JUDICIAL OFFICER : Coorey J

60155/2003
SULLY J
BARR J
NEWMAN AJ

19 DECEMBER 2003

Regina v Mohammed Tamin Baquayee

Judgment

1 SULLY J: I agree with Newman AJ.

2 BARR J: I agree with Newman AJ.

3 NEWMAN AJ: This is an appeal brought by the Director of Public Prosecutions pursuant to section 5(d) of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent by His Honour Coorey DCJ in the Districts Courts at Campbelltown on the 17th of March 2003.

4 The respondent had been indicted on 2 charges of wound with intent to murder pursuant to section 27 of the Crimes Act 1900 and 2 alternative charges of maliciously wound with intent to do grievous bodily harm brought pursuant to section 33 of the Crimes Act 1900. The respondent having pleaded not-guilty to all counts on the indictment, a trial proceeded. In the event the jury found the respondent not-guilty of the 2 counts of wound with intent to murder but guilty of the two alternative counts of maliciously wound with intent to do grievous bodily harm.

5 At the trial the respondent not only denied that he had committed the acts which were relied upon by the Crown in support…

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 K

Details

AGLC: R v K [2003] NSWCCA 401
Case: [2003] NSWCCA 401
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the case of R v K, the respondent was convicted for causing grievous bodily harm with intent in circumstances amounting to malicious wounding. The Court of Appeal was called upon to review the sentence imposed by the lower court, which was deemed insufficient by the Crown. The appeal centred on the issue of whether the sentence was manifestly inadequate, and if the totality principle could be applied to review it. Additionally, the court considered the implications of double jeopardy in light of the appeal.

The primary legal issues were whether the sentence imposed by the lower court was manifestly inadequate and whether the totality principle could be applied in this context. The Crown argued that the sentence did not reflect the severity of the crime and that the totality principle should be invoked to ensure that the respondent received an appropriate sentence. The respondent, however, maintained that the sentence was adequate and that the appeal should be dismissed.

The Court of Appeal held that the sentence was indeed manifestly inadequate. The severity of the crime, coupled with the intent behind it, necessitated a more significant punishment. The court applied the totality principle, which allows for the review of sentences to ensure they are commensurate with the crime's gravity. The court emphasised that the totality principle is not limited to consecutive sentences but can be applied to a single sentence as well. The court also acknowledged the principle of double jeopardy but found that it did not bar the appeal in this instance as the focus was on the sentence's adequacy rather than re-litigating the facts of the case.

The Court of Appeal quashed the original sentence and ordered a re-sentencing hearing. The court directed that the new sentence should adequately reflect the gravity of the offence and the principles of justice, deterrence, and rehabilitation. The respondent was to be re-sentenced by a different judge to ensure impartiality and fairness.

Orders