R v Mohammed - [2018] QCA 289

[2018] QCA 289

COURT OF APPEAL

GOTTERSON JA
McMURDO JA
DOUGLAS J

CA No 105 of 2018
DC No 2572 of 2017

THE QUEEN

MOHAMMED, Mujahid Applicant

BRISBANE

WEDNESDAY, 24 OCTOBER 2018

JUDGMENT

McMURDO JA: The applicant pleaded guilty to three offences of rape and one of stealing committed against the same complainant, a 15 year old girl, on 7 December 2016. He was sentenced to concurrent terms of five years, six and a half years and seven years for the rape offences, and one of three months for the stealing offence. A parole eligibility date was set at 5 April 2020, which was two years from the date of the sentence. A total of 79 days was declared as pre-sentence custody.

He applies for leave to appeal against the sentences for the rape offences upon the ground that the sentencing judge erred in his consideration of the principle of totality, because no allowance was made for a consequence of the commission of these offences being that the applicant had to serve another 10 months and eight days as the balance of previous sentences.

The applicant was born on 1 January 1995, so that he was aged 21 at the time of these offences and 23 at the time of the sentence. He had a criminal history, which the judge described as somewhat complicated but which is helpfully summarised in the submissions for the respondent, from which I now quote:

“He was sentenced to partially suspended sentences of 18 months and 9 months imprisonment in Brisbane District Court in December of 2013 and placed on probation for a period of 3 years. He had served 237 days in pre-sentence custody [at that point].
[He] received a wholly suspended sentence of 6 weeks in November 2014 before being required to serve two months of an effective 8 ½ month sentence imposed in June 2016 after which he was released on parole.
That was comprised of a 6 month sentence, a 1 month sentence and the activated 6 week suspended sentence. The last two were required to be served cumulatively as they related to breaches of bail. As a result of those convictions the sentences imposed in December of 2013 were the subject of breach proceedings in August of 2016. The suspended sentences were activated in full, and the applicant was resentenced on the matters for which he had been placed on probation.
[He] was required to serve 310 days and 33 days respectively which remained on the activated suspended sentences and 12 months and 6 months respectively on the matters for which he was resentenced. All of those sentences were to be served concurrently, and he was given immediate parole. They were running concurrently with the sentences imposed in June 2016, for which he had been released upon parole 4 weeks earlier.
The offences for which the applicant was before the Court occurred approximately 3 ½ months later [that is, the offences the subject of this application]. He was arrested…

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 Mohammed

Details

AGLC: R v Mohammed [2018] QCA 289
Case: [2018] QCA 289
Decision Date: 24 OCTOBER 2018

CaseChat Overview and Summary

The case of R v Mohammed is an appeal against sentence brought by the applicant, Mujahid Mohammed, who had been convicted of three counts of rape and one of stealing. The applicant's appeal concerns the sentence imposed by the sentencing judge, specifically the judge's consideration of the principle of totality. The applicant had already been serving a sentence for previous offences, which the judge acknowledged but did not fully consider in imposing the new sentences. The Court of Appeal found that the sentencing judge erred in not appropriately accounting for the principle of totality, leading to an excessive sentence.

The legal issue before the Court was whether the sentencing judge erred in not fully considering the principle of totality when imposing the sentence for the current offences. The principle of totality requires that the total period of imprisonment should adequately and fairly represent the total criminality involved in all the offences. The Court noted that the sentencing judge acknowledged the period of 10 months and eight days the applicant had to serve for previous offences but did not fully account for this when imposing the new sentences. The Court held that the judge's failure to appropriately consider the principle of totality led to an excessive sentence.

The Court of Appeal found that the sentencing judge did not adequately consider the principle of totality when imposing the sentence. The Court noted that the applicant had to serve another 10 months and eight days for previous offences, making the total period of imprisonment he would serve more than three years before being eligible for parole, and about eight years if not paroled. The Court held that the judge's error led to a sentence that was excessive. The Court granted leave to appeal, allowed the appeal, and varied the sentences accordingly.

The orders of the Court were as follows: grant leave to appeal, allow the appeal, vary the sentence on count 3 by substituting a term of five and a-half years imprisonment for the term of six and a-half years which was imposed, and vary the sentence on count 4 by substituting a term of six years and two months imprisonment for the term of seven years which was imposed.

Orders