Majid v R [2016] NSWCCA 289

Majid v R [2016] NSWCCA 289

The Court found that the sentencing judge erred by affording determinative significance to the standard non-parole period and employing a two-stage approach contrary to Muldrock. The error was not corrected in the first appeal, necessitating the Court to resentence the Appellant in accordance with the proper principles. The re-exercise of sentencing discretion took account of the seriousness, aggravating features, and the Appellant’s subjective circumstances, found special circumstances warrant a slight adjustment to the non-parole period, and ordered accumulation between Counts 1 and 2 to better reflect the separate offences.

Jurisdiction
Australia
Judgment Date
09 December 2016
Procedural Posture
Criminal Appeal / Court of Criminal Appeal—appeal Against Sentence and Re Sentencing
Outcome
Appeal upheld in part; appellant re-sentenced on Counts 1 and 2; appeal in respect of Count 3 dismissed.
Legal Topics
['appeal Against Sentence' 'aggravated Sexual Intercourse Without Consent' 'detain for Advantage' 'application of Standard Non Parole Period' 'muldrock Error' 'resentencing' 'manifestly Excessive Sentence' 'totality' 'special Circumstances']
['criminal Law'] ['appeal Against Sentence' 'aggravated Sexual Intercourse Without Consent' 'detain for Advantage' 'application of Standard Non Parole Period' 'muldrock Error' 'resentencing' 'manifestly Excessive Sentence' 'totality' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal—appeal Against Sentence and Re Sentencing

Legal Issues

  1. 1 ['Whether the original sentences were imposed contrary to the principles set out in Muldrock v The Queen (2011) 244 CLR 120' 'Whether the sentences imposed were manifestly excessive' 'Whether the Court of Criminal Appeal erred by failing to re-sentence the Appellant in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) per Kentwell v The Queen (2014) 252 CLR 601']

Ratio Decidendi

The Court found that the sentencing judge erred by affording determinative significance to the standard non-parole period and employing a two-stage approach contrary to Muldrock. The error was not corrected in the first appeal, necessitating the Court to resentence the Appellant in accordance with the proper principles. The re-exercise of sentencing discretion took account of the seriousness, aggravating features, and the Appellant’s subjective circumstances, found special circumstances warrant a slight adjustment to the non-parole period, and ordered accumulation between Counts 1 and 2 to better reflect the separate offences.

Court Disposition

Appeal upheld in part; appellant re-sentenced on Counts 1 and 2; appeal in respect of Count 3 dismissed.

Orders

  • ['Appeal upheld.' 'Quash the sentence for Count 1 imposed in the District Court on 18 December 2008.' 'Quash the sentence for Count 2 imposed by the Court of Criminal Appeal on 11 June 2010.' 'In lieu, sentence the Appellant as follows: On Count 1, a non-parole period of seven years commencing 13 April 2008 and...