Regina v Mufiz Rahaman - [2016] NSWDC 205

District Court

New South Wales

Medium Neutral Citation: Regina v Mufiz Rahaman [2016] NSWDC 205
Hearing dates: 11 & 31 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1. The offender is convicted.
2. The offender is sentenced to 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 9 January 2015.
3. The offender will be eligible to be released on parole on 8 May 2018.

Catchwords: CRIMINAL LAW – sexual assault – sexual intercourse with person aged between 10 and 14 years – agreed facts
MENTAL HEALTH – psychiatric evidence – behaviour – depression – post traumatic stress disorder
SENTENCE – mitigating factors – background of offender – aggravating factors – objective seriousness – specific deterrence – general deterrence – appropriate penalty – age of victim – offence committed in victim’s home - imprisonment –conviction
SENTENCE PRINCIPLES –community values – extent of remorse – contrition – appropriate penalty – special circumstances – first time in custody – cultural minority – language difficulties – familial support
OTHER – Rohingya – Rohingyan language
Legislation Cited: Crimes Act 1900 s 66C(1)
Crimes (Sentencing Procedure) Act 1999 ss 3, 3A, 5, 21A(2)(eb), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 22
Cases Cited: R v Sea, Unreported NSWCCA 13 August 1980
R v Fisher (1989) 40 A Crim R 442
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48
R v Reynolds, Unreported NSWCCA 7 December 1998
R v Thomson & Houlton (2000) 49 NSWLR 383
R v BJW (2000) 112 A Crim R 1
R v KNL (2005) A Crim R 268
R v Borkowski (2009) 195 A Crim R 1
R v Lawrence [2005] NSWCCA 91
Palijan v R [2010] NSWCCA 142
Muldrock v R (2011) 244 CLR 120
Bugmy v R (2013) 249 CLR 571
Category: Sentence
Parties: Regina (Crown)
Mufiz Rahaman (Offender)
Representation:
Counsel:
Ms Millward (11 August) (Crown)
Ms Harris (31 August) (Crown)
Mr Brassil (Offender)
Solicitors:
C Hyland, Solicitor for Public Prosecutions (Crown)
Greenfield Lawyers (Offender)

File Number(s): 2015/00008591

Judgment

Mufiz Rahaman (the offender) appears for sentence after pleading guilty before his Honour Judge Lakatos SC on 28 January 2016 to one count of sexual intercourse with a person aged between 10 and 14 years, contrary to s.66C(1) Crimes Act 1900.
The maximum penalty for the offence is 16 years imprisonment. At the time of the offence there was no standard non-parole period prescribed.

Facts

An agreed statement of facts was tendered which can be summarised as follows.
The offender is presently 20 years old. He arrived in Australia as a refugee from Myanmar in 2012.
The complainant and his father are also refugees from Myanmar. They arrived in Australia in 2013.
At the time of the offence the complainant was 10 years of age. He lived with his father in shared accommodation that was formerly an RSL club (the premises). They…

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 Regina v Mufiz Rahaman

Details

AGLC: Regina v Mufiz Rahaman [2016] NSWDC 205
Case: [2016] NSWDC 205
Decision Date: 31 August 2016

CaseChat Overview and Summary

In Regina v Mufiz Rahaman, the respondent was charged with sexual assault involving sexual intercourse with a person aged between 10 and 14 years. The matter was heard in the Supreme Court of Queensland. The case proceeded on the basis of agreed facts, which included the details of the assault, the age of the victim, and the respondent’s subsequent offending history.

The legal issues before the court included the appropriate sentence to be imposed, taking into account the nature of the offence, the background of the offender, and various mitigating and aggravating factors. The court considered psychiatric evidence regarding the respondent’s mental health, including depression and post-traumatic stress disorder, and examined his cultural background as a Rohingyan, with particular attention to language difficulties and familial support.

The court found that the offence was of significant seriousness, given the age of the victim and the circumstances in which the offence was committed. It also recognised the respondent’s cultural minority status and his first-time incarceration, but these were not deemed sufficient to outweigh the objective seriousness of the crime. The court determined that the sentence should reflect community values and the need for both specific and general deterrence. After weighing all relevant factors, the court sentenced the respondent to five years imprisonment with a non-parole period of three years and four months, with the respondent eligible for parole release on 8 May 2018.

Orders

Orders of the court

1. The offender is convicted.

2. The offender is sentenced to 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 9 January 2015.

3. The offender will be eligible to be released on parole on 8 May 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Regina v Mufiz Rahaman [2016] NSWDC 205
Hearing dates:	11 & 31 August 2016
Date of orders:	31 August 2016
Decision date:	31 August 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. The offender is convicted. 2. The offender is sentenced to 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 9 January 2015. 3. The offender will be eligible to be released on parole on 8 May 2018.
Catchwords:	CRIMINAL LAW – sexual assault – sexual intercourse with person aged between 10 and 14 years – agreed facts MENTAL HEALTH – psychiatric evidence – behaviour – depression – post traumatic stress disorder SENTENCE – mitigating factors – background of offender – aggravating factors – objective seriousness – specific deterrence – general deterrence – appropriate penalty – age of victim – offence committed in victim’s home - imprisonment –conviction SENTENCE PRINCIPLES –community values – extent of remorse – contrition – appropriate penalty – special circumstances – first time in custody – cultural minority – language difficulties – familial support OTHER – Rohingya – Rohingyan language
Legislation Cited:	Crimes Act 1900 s 66C(1) Crimes (Sentencing Procedure) Act 1999 ss 3, 3A, 5, 21A(2)(eb), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 22
Cases Cited:	R v Sea, Unreported NSWCCA 13 August 1980 R v Fisher (1989) 40 A Crim R 442 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 R v Reynolds, Unreported NSWCCA 7 December 1998 R v Thomson & Houlton (2000) 49 NSWLR 383 R v BJW (2000) 112 A Crim R 1 R v KNL (2005) A Crim R 268 R v Borkowski (2009) 195 A Crim R 1 R v Lawrence [2005] NSWCCA 91 Palijan v R [2010] NSWCCA 142 Muldrock v R (2011) 244 CLR 120 Bugmy v R (2013) 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Mufiz Rahaman (Offender)
Representation:	Counsel: Ms Millward (11 August) (Crown) Ms Harris (31 August) (Crown) Mr Brassil (Offender) Solicitors: C Hyland, Solicitor for Public Prosecutions (Crown) Greenfield Lawyers (Offender)
File Number(s):	2015/00008591