AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 19 August 2010

Nausad HUSSAIN v R, Faeem ALI v R

[2010] NSWCCA 184

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
LEGISLATION CITED: CRIMES ACT 1900

Citation: Nausad Hussain v R; Faeem Ali v R [2010] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 19 August 2010
Judges: McClellan CJ at CL, James J, Davies J

Background

Two applicants, a husband and his brother-in-law, pleaded guilty in the District Court to a series of offences arising from a violent confrontation in September 2008. The husband had discovered his wife was in a relationship with her cousin. After an argument in which the wife stated she intended to leave the marriage, the husband and brother-in-law drove to the house where she had taken refuge.

The brother-in-law forced his way through a window into the dwelling. The husband followed, struck the cousin with a stick, and then dragged his wife from the house against her will, pushing her into his vehicle. A tense incident followed involving threats with a knife. The wife ultimately escaped at a tollgate, with members of the public coming to her aid. The husband was later stopped at the airport attempting to flee to New Zealand.

District Court Judge Keleman sentenced the husband to a total of 2 years and 8 months imprisonment and the brother-in-law to 20 months imprisonment. Both men applied to the Court of Criminal Appeal for leave to appeal their sentences.

  • Whether the sentencing judge erred in finding that the husband's offences fell above the mid-range of objective seriousness
  • Whether the sentencing judge erred by treating a lack of remorse as an aggravating factor under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the standard non-parole period provisions applied correctly to the brother-in-law's offence under s 112(2) of the Crimes Act 1900
  • Whether the sentences imposed on both applicants were manifestly excessive
  • Whether the fact that the victims were relatives of the offenders reduced the objective seriousness of the offences

Decision

James J (with whom McClellan CJ at CL agreed) rejected all grounds of appeal advanced by both applicants. On the issue of objective seriousness, the Court found no error in the sentencing judge's assessment. The conduct involved a coordinated forced entry into a dwelling, a physical assault, and the abduction of the wife against her clearly expressed will, with a weapon present throughout. These features justified the sentencing judge's characterisation.

On the remorse issue, the Court found the sentencing judge had not impermissibly treated absence of remorse as an aggravating factor. The sentencing judge had simply declined to apply remorse as a mitigating factor, which was open given the applicants' attitudes at the time of arrest. The husband had told police he was entitled to take his wife because she was his wife; the brother-in-law stated his sister had brought shame on the family. Neither reflected genuine contrition.

Regarding the brother-in-law's sentence under s 112(2), the Court was satisfied the sentencing judge properly engaged with the standard non-parole period provisions and was entitled to depart downward given the low objective seriousness, the plea of guilty, and favourable subjective circumstances. The slight difference between the sentences imposed on the two applicants for their respective dwelling-entry offences was justified because it was the brother-in-law who physically broke into the house.

Davies J added a separate observation directed at a submission put on behalf of both applicants: that offences committed against relatives are of a lesser criminal character than those committed against strangers. His Honour firmly rejected that proposition. A relative, and particularly a wife, may in fact be in a more vulnerable position with respect to an offender. The attitudes expressed by both applicants at arrest illustrated why such a submission was not only legally wrong, but also inconsistent with Australian values.

Orders Made

  • Leave to appeal granted for each applicant
  • Each appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal firmly rejected the proposition that offences committed against relatives are of lesser objective seriousness than those committed against strangers. A spouse or family member may be more, not less, vulnerable to an offender's conduct.
  • Declining to apply remorse as a mitigating factor does not constitute treating the absence of remorse as an aggravating factor. The distinction matters under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999.
  • Where a standard non-parole period applies under s 112(2) of the Crimes Act 1900 (aggravated break-and-enter committing a serious indictable offence, standard non-parole period of 5 years), a sentencing court may depart downward where objective seriousness falls toward the lower end and other mitigating factors are present.
  • In dismissing both appeals, the Court confirmed that coordinated, premeditated conduct involving forced entry, physical assault, and abduction of a family member against her clearly expressed will justifies a finding of higher objective seriousness, even where the offender frames the conduct as a family matter.
  • No heavier sentence was required for the husband's dwelling-entry offence compared with the brother-in-law's, but a modest difference was open because it was the brother-in-law who carried out the actual forced entry into the premises.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 86(1), 111(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A Part 4, ss 5, 21A(3), 21A(3)(c), 44(2)

Cases Cited:
- R v A [2004] NSWCCA 292
- R v Zamagias [2002] NSWCCA 17
- R v Palu (2002) 134 A Crim R 174
- Majid v R [2010] NSWCCA 121
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170