Citation: Majid v R [2010] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 11 June 2010
Judge(s): Simpson J, Johnson J, McCallum J
Background
The applicant, a restaurant manager then aged 25, was convicted by a jury of two counts of aggravated sexual intercourse without consent and one count of detaining a person for advantage. The victim was a 15-year-old employee at the same restaurant. Both sexual assaults took place in a car park at Auburn, in December 2006 and January 2007 respectively, after the applicant had offered or arranged to drive the victim home from work.
At trial, the applicant denied the sexual assaults, claiming the victim had been flirtatious and that the December incident involved consensual kissing only. He also claimed the victim had telephoned him to arrange the January lift. The jury rejected this account entirely.
The applicant was sentenced in the District Court in December 2008 to a total effective sentence of 14 years and six months, with an effective non-parole period of 10 years and six months. He sought leave to appeal against those sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge had failed to comply with section 44 of the Crimes (Sentencing Procedure) Act 1999 in fixing the balance of term for the second count
- Whether insufficient weight had been given to the applicant's post-traumatic stress disorder (PTSD) as a mitigating factor
- Whether insufficient weight had been given to a late expression of remorse
- Whether insufficient weight had been given to the hardship of the applicant serving his sentence in protective custody
- Whether the overall sentences were manifestly excessive
Decision
The Court identified a single error in the sentences as imposed. Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires that, in setting a non-parole period, the balance of term must generally be at least one-third of the non-parole period. For the second count, the sentencing judge had fixed a non-parole period of 10 years with a balance of term of four years. The balance of term should have been no less than three years and four months (being one-third of 10 years). The four-year balance was not legally impermissible in itself, but the sentencing judge had not explicitly found special circumstances to depart from the standard ratio, and the Court adjusted the balance of term to three years and four months to correct this.
On the applicant's PTSD, the Court found the sentencing judge had properly taken this into account. The applicant had a documented traumatic childhood as a refugee from Afghanistan, but he had also lived in Australia for 13 years by the time of the offences and was in gainful employment. There was no error in how the sentencing judge weighed this factor.
The applicant's expression of remorse was described as late and qualified, having emerged only after conviction and after pre-sentence reports were prepared. The Court accepted the sentencing judge's assessment that this limited expression warranted limited weight. Similarly, the Court found that while protective custody conditions are a relevant sentencing factor, the weight attributed to them fell within the sentencing judge's discretion and disclosed no error.
On manifest excess, the Court noted that both offences had been assessed as at or above the mid-range of objective seriousness, attracting the standard non-parole period provisions. The sentences reflected that assessment, and it had not been demonstrated that they were unreasonable or plainly unjust.
Orders Made
- Leave to appeal against sentence granted
- Sentence on the second count quashed and replaced with a non-parole period of 10 years commencing 13 October 2008 and expiring 12 October 2018, with a balance of term of three years and four months commencing 13 October 2018 and expiring 12 February 2022
- Appeal dismissed with respect to sentences on Counts 1 and 3
- Earliest date of eligibility for release on parole remains 12 October 2018
Key Takeaways
- Under section 44 of the Crimes (Sentencing Procedure) Act 1999, the balance of term must be at least one-third of the non-parole period unless the sentencing judge explicitly finds special circumstances; a failure to observe this ratio, even where the resulting balance of term exceeded the statutory minimum, constitutes a legal error requiring correction on appeal.
- A late and qualified expression of remorse, emerging only after conviction and in the context of pre-sentence processes, warrants limited mitigating weight; the Court of Criminal Appeal confirmed no error arose from treating it that way.
- Post-traumatic stress disorder arising from a traumatic childhood background remained a relevant subjective factor, but its weight appropriately diminished where the offender had lived in Australia for many years and was integrated into employment and community life.
- Serving a sentence in protective custody is a recognised hardship capable of bearing on sentence, though the significance assigned to it falls within the sentencing court's discretion.
- In dismissing four of the five grounds of appeal, the Court confirmed that sentences at or above the mid-range of objective seriousness for aggravated sexual intercourse without consent will attract the standard non-parole period framework, and that the overall length of the sentences here was not unreasonable or plainly unjust.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 86(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:
- Itaoui v R [2005] NSWCCA 415; 158 A Crim R 233
- Hejazi v R [2009] NSWCA 282
- Stephens v R [2009] NSWCCA 240
- R v Baker [2000] NSWCCA 85
- Ryan v R [2009] NSWCCA 183
- Cao v R [2010] NSWCCA 109
- R v Stafrare (1977) 96 A Crim R 452
- R v Winchester (1992) 58 A Crim R 345
- R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
- Clinton v R [2009] NSWCCA 276
- R v Jarrold [2010] NSWCCA 69
- Markarian v The Queen [2005] HCA 25; 228 CLR 357