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Rahman v R

Rahman v R

Case [2020] NSWCCA 13 14 February 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rahman v R [2020] NSWCCA 13
Hearing dates: 5 February 2020
Date of orders: 14 February 2020
Decision date: 14 February 2020
Before: Macfarlan JA at [1];
Adamson J at [2];
Beech-Jones J at [3]
Decision:
(1) Leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – appeal - appeal against sentence – offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in referring to sexual act constituting sexual intercourse “in this country” – whether sentencing judge erred in approach to specific deterrence – whether sentence imposed was manifestly excessive – consideration of sentences imposed for comparable offences – leave granted – appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Afghan-Baig v R [2018] NSWCCA 15
Ali v R [2010] NSWCCA 35
Ali v R [2014] NSWCCA 45
Aslan v R [2014] NSWCCA 114
Bullock v R [2016] NSWCCA 131
DPP v Dowd [2018] NSWCCA 102
DPP v Newitt [2019] VCC 2030
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40;
Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378
McGrory v R [2018] NSWCCA 226
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39,
Nand v R [2014] NSWCCA 293
Naveed v R [2019] NSWCCA 149
NM v R [2012] NSWCCA 215
Norman v R [2012] NSWCCA 230
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Gerard Cortese [2013] NSWCCA 148
R v Rahman [2019] NSWDC 173
R v Randall [2018] QSC 100
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Tisalandis [1982] 2 NSWLR 430
Rajendran v R [2014] NSWCCA 113
Stewart v R [2012] NSWCCA 183
The Queen v Allan [2019] VSC 18
Vaisu v R [2017] NSWCCA 71
Wan v R [2019] NSWCCA 86
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Maksudur Rahman (Applicant)
Regina (Respondent)
Representation:
Counsel:
K Averre (Applicant)
M Kumar (Respondent)
Solicitors:
Powerhouse Law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/29027
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 173

Date of Decision:

6 February 2019

Before:

Colefax SC DCJ

File Number(s):

2018/29027

Judgment

MACFARLAN JA: I agree with Beech-Jones J.
ADAMSON J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a custodial sentence imposed by his Honour Judge Colefax SC in the District Court on 6 February 2019 for an offence of having sexual intercourse with another person without their consent contrary to s 61I of the Crimes Act 1900. At the time of sentencing, another offence under s 61I was included…

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 Rahman v R

Details

AGLC: Rahman v The Queen [2020] NSWCCA 13
Case: [2020] NSWCCA 13
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of Rahman v R involved an appellant who was convicted of the offence of having sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the judge had erred in referring to the sexual act as "in this country" and that there was an incorrect approach to specific deterrence. The appellant further contended that the sentence was manifestly excessive when compared to sentences imposed for similar offences. The appeal was heard by the court, which granted leave to appeal and ultimately dismissed the appeal.

The central legal issues before the court were whether the sentencing judge had erred in their reference to the sexual act as "in this country" and whether there was an incorrect approach to specific deterrence. Additionally, the court considered whether the sentence imposed was manifestly excessive, taking into account sentences imposed for comparable offences.

In its reasoning, the court found that the sentencing judge's reference to the sexual act as "in this country" did not constitute an error, as it was a reasonable interpretation of the context of the offence. The court also found that there was no incorrect approach to specific deterrence, as the sentencing judge had appropriately considered the appellant's circumstances and the need to deter the appellant and others from committing similar offences. Furthermore, the court held that the sentence imposed was not manifestly excessive, as it was proportionate to the gravity of the offence and consistent with sentences imposed for comparable offences. As a result, the appeal was dismissed.

Orders