Nausad HUSSAIN v R, Faeem ALI v R [2010] NSWCCA 184

Nausad HUSSAIN v R, Faeem ALI v R [2010] NSWCCA 184

The Court held that the sentencing judge made no appealable error. The judge was not required to make express findings about levels of objective seriousness for Hussain's offences because no standard non-parole period applied, and the finding that the offences were objectively serious was open. It could be inferred that the judge considered and rejected alternatives to full time custody. Fareena Hussain's forgiveness was not a matter that could properly reduce sentence. The mitigating factors were referred to and taken into account, and the sentences were within the sentencing discretion. For Ali, the sentence was well below the 5 year standard non-parole period and was justified by the...

Jurisdiction
Australia
Judgment Date
19 August 2010
Procedural Posture
Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
In each appeal against sentence, leave to appeal was granted but the appeal was dismissed.
Legal Topics
['assault' 'aggravated Entering a Dwelling House' 'taking a Person Without Consent With Intent to Obtain an Advantage' 'aggravated Breaking and Entering' 'standard Non Parole Period' 'alternatives to Full Time Custody' 'victim Forgiveness' 'mitigating Factors' 'manifest Excess']
['criminal Law' 'sentencing' 'criminal Procedure'] ['assault' 'aggravated Entering a Dwelling House' 'taking a Person Without Consent With Intent to Obtain an Advantage' 'aggravated Breaking and Entering' 'standard Non Parole Period' 'alternatives to Full Time Custody' 'victim Forgiveness' 'mitigating Factors' 'manifest Excess']

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Procedural Posture

Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing Hussain's offences as falling within the mid range of objective seriousness." 'Whether the sentencing judge failed to properly consider alternatives to full time custody for Hussain and Ali.' "Whether the sentencing judge erred by failing to give weight to Fareena Hussain's expressions of forgiveness." 'Whether the sentencing judge failed to give sufficient weight to mitigating factors for Hussain and Ali.' 'Whether the sentences imposed on Hussain and Ali were manifestly excessive.' 'Whether offending against a close relative is of lesser criminality than offending against a stranger.']

Ratio Decidendi

The Court held that the sentencing judge made no appealable error. The judge was not required to make express findings about levels of objective seriousness for Hussain's offences because no standard non-parole period applied, and the finding that the offences were objectively serious was open. It could be inferred that the judge considered and rejected alternatives to full time custody. Fareena Hussain's forgiveness was not a matter that could properly reduce sentence. The mitigating factors were referred to and taken into account, and the sentences were within the sentencing discretion. For Ali, the sentence was well below the 5 year standard non-parole period and was justified by the...

Court Disposition

In each appeal against sentence, leave to appeal was granted but the appeal was dismissed.

Orders

  • ['Leave to appeal against sentence granted to Nausad Hussain.' "Nausad Hussain's appeal against sentence dismissed." 'Leave to appeal against sentence granted to Faeem Ali.' "Faeem Ali's appeal against sentence dismissed."]