Rahman v The King - [2023] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rahman v R [2023] NSWCCA 148
Hearing dates: 24 March 2023
Decision date: 23 June 2023
Before: Adamson JA at [1];
Button J at [9];
McNaughton J at [95].
Decision:
1) Leave to appeal against sentence granted.
2) Appeal against sentence dismissed.

Catchwords:
CRIME – appeal – appeal against sentence – multiple kidnapping charges – specially aggravated – where first victim suffered grievous bodily harm – shattered skull, laceration of the scalp and brain hernia after being struck in the head with a pistol – where not proven beyond reasonable doubt that applicant was aware that his co-offender would be armed or use the weapon during the kidnapping – complaint that sentencing judge took the degree of injury inflicted on the victim into account when assessing objective seriousness of the offending – grounds of appeal in direct contrast to concessions made at first instance discouraged – actual harm done to a victim able to be reflected as part of objective seriousness even if not found to be an aggravating feature against a particular offender
– leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 86(3), 93T(1A)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(g)
Surveillance Devices Act 2007 (NSW) s 9(1)(b)

Cases Cited:
Bell v R [2019] NSWCCA 251
Director of Public Prosecutions v Arvanitidis [2008] VSCA 189
Josefski v R [2010] NSWCCA 4; (2010) 217 A Crim R 183
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Wickham [2004] NSWCCA 193
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Alex Rahman (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Woods (Applicant)
J Styles (Respondent)
Solicitors:
Khan Law & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/78538
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 December 2021

Before:

Yehia SC DCJ

File Number(s):

2020/78538

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 December 2021, Mr Alex Rahman (the applicant) was sentenced in the District Court for two counts of kidnapping contrary to s 86(3) of the Crimes Act 1900 (NSW). Both offences were specially aggravated on the basis that they were each committed in company, and resulted in the victims suffering actual bodily harm. The applicant pleaded guilty to both charges, and accepted guilt of two further offences taken into account on a Form 1. After applications of discounts for the utilitarian value of pleas of guilty, indicative sentences were provided. An aggregate term of 10 years 6 months, with a non-parole period of 6 years 9 months was imposed.

The facts central to the appeal were as follows. The applicant and a male co-offender, an employee at the applicant’s concrete pumping business, entered into a joint criminal…

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 The King

Details

AGLC: Rahman v The King [2023] NSWCCA 148
Case: [2023] NSWCCA 148
Decision Date: 23 June 2023

CaseChat Overview and Summary

In the case of Rahman v The King, the appellant, Rahman, was convicted of multiple counts of kidnapping, which were found to be specially aggravated. The dispute centred around the sentencing of Rahman, with the primary issue being the weight given to the severity of the injuries inflicted on the victim during the appeal. The victim had suffered grievous bodily harm, including a shattered skull, scalp laceration, and brain hernia, as a result of being struck with a pistol. The appellant challenged the sentence on the basis that the sentencing judge had improperly considered the actual harm done to the victim when assessing the objective seriousness of the offences, despite it not being proven that the appellant was aware that his co-offender would be armed or use a weapon during the kidnapping.

The court was tasked with determining whether the sentencing judge erred in taking into account the extent of the victim's injuries in assessing the objective seriousness of the offences. The appellant argued that the actual harm to the victim could not be factored into the objective seriousness if it was not an aggravating feature against a particular offender. The court examined the concessions made by the appellant at the first instance, which were in direct contrast to the grounds of appeal, and whether this undermined the appeal process. The court also needed to clarify the extent to which the actual harm caused to a victim could be reflected in the assessment of the objective seriousness of the offences.

The court held that the appellant's concessions at first instance did not discourage the consideration of the appeal. It was determined that the actual harm done to a victim could indeed be reflected as part of the objective seriousness of the offences, even if it was not found to be an aggravating feature against a particular offender. The appeal was dismissed, and leave to appeal was granted. The court confirmed that the sentencing judge's consideration of the severity of the injuries in assessing the objective seriousness of the offences was not erroneous. The appellant's appeal against the sentence was ultimately unsuccessful.

Orders