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Court of Criminal Appeal 9 December 2016

Majid v R

[2016] NSWCCA 289

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE APPELLANT SENTENCED PRE MULDROCK EARLIER APPEAL LARGELY UNSUCCESSFUL

Citation: Majid v R [2016] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 9 December 2016
Judges: Payne JA, Price J, Davies J

Background

The appellant was convicted in the District Court of two counts of aggravated sexual intercourse without consent and one count of detaining a person for advantage. The offences involved a 15-year-old victim whom the appellant, then aged 25 and working as a shift manager at a fast food outlet, first assaulted in December 2006 and then detained and assaulted again in January 2007. The sentencing judge imposed sentences in December 2008, resulting in an overall non-parole period of ten years and six months.

A first appeal to the Court of Criminal Appeal in 2010 succeeded only on a narrow technical ground concerning compliance with s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs the ratio between a non-parole period and the balance of term. All other grounds, including manifest excess, were rejected.

Following the High Court's decision in Muldrock v The Queen (2011), the appellant applied under Part 7 of the Crimes (Appeal and Review) Act 2001 for a further inquiry into his sentence. After an initial refusal and the subsequent Court of Appeal decision in Buttrose, a second Part 7 application was referred by the Supreme Court to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

  • Whether the sentences on counts 1 and 2 were affected by Muldrock error (that is, error arising from treating the standard non-parole period as a sentencing benchmark or starting point rather than as a guide)
  • Whether the sentences were manifestly excessive
  • Whether the Court of Criminal Appeal erred in the earlier appeal by failing to re-sentence in accordance with s 6(3) of the Criminal Appeal Act 1912, as later clarified by the High Court in Kentwell v The Queen (2014)
  • Whether an expired sentence remained relevant to questions of accumulation and totality when re-sentencing on the remaining counts
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and balance of term

Decision

The Crown conceded Muldrock error in relation to counts 1 and 2, and the court accepted that concession. That error, combined with the Kentwell principles regarding the obligation to re-sentence under s 6(3) of the Criminal Appeal Act 1912, required the court to approach the matter afresh rather than simply correcting a discrete error.

On the question of objective seriousness, Davies J found the offending was serious. The offences were separate incidents against a young victim, and the appellant exploited a position of relative authority. However, the court also took into account the appellant's progress towards rehabilitation and his untreated mental health issues, including Post Traumatic Stress Disorder arising from childhood experiences, as mitigating factors.

Although the sentence for count 3 had expired by the time of the appeal, Davies J held it remained relevant to the assessment of appropriate accumulation and totality for the other counts. The court found the original accumulation between counts 1 and 2 was inadequate given the distinctly separate nature of each offence. The revised sentences were structured to make each individual sentence slightly shorter while increasing the accumulation between them, better reflecting that the appellant was being punished for two entirely separate acts of offending.

Davies J found special circumstances existed, primarily because the appellant had not yet completed the CUBIT (sex offender treatment) program and had untreated mental health issues, warranting a modest extension of the balance of term beyond the statutory ratio to facilitate rehabilitation. The overall sentence length was not reduced, but the non-parole period was slightly adjusted to reflect the special circumstances finding.

Orders Made

  • Appeal upheld
  • Sentence for count 1 (imposed by the District Court) quashed; replaced with a non-parole period of seven years commencing 13 April 2008 and expiring 12 April 2015, with an additional term of four years and six months expiring 12 October 2019
  • Sentence for count 2 (as imposed by the Court of Criminal Appeal in 2010) quashed; replaced with a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018, with an additional term of four years and six months expiring 12 October 2022
  • Earliest parole eligibility date: 12 April 2018
  • Appeal dismissed in relation to count 3

Key Takeaways

  • The Court of Criminal Appeal confirmed that where Muldrock error is established and Kentwell applies, the court must exercise the full re-sentencing power under s 6(3) of the Criminal Appeal Act 1912 rather than making only the minimum correction necessary.
  • A sentence that has already expired by the time of a re-sentencing hearing does not simply disappear from the analysis; it retains relevance to the proper assessment of accumulation and totality across related offences.
  • Insufficient accumulation between sentences for distinctly separate offences can itself constitute a sentencing error, even where the overall sentence length is not reduced on re-sentence.
  • Untreated mental health conditions, including PTSD, combined with incomplete participation in a relevant rehabilitation program, can support a finding of special circumstances justifying an extension of the balance of term beyond the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • Under the Part 7 referral process, the Court of Criminal Appeal deals with a referred case as if it were a fresh appeal against sentence, with the CCA's own earlier decision treated as the sentence under appeal where it replaced the original.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 44
- Criminal Appeal Act 1912 (NSW), particularly s 5 and s 6(3)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Majid v R [2010] NSWCCA 121
- Application by Darush Majid pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2014] NSWSC 709
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562
- Louizos v R [2014] NSWCCA 242
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
- Davis v R [2015] NSWCCA 90
- Des Rosiers v R [2016] NSWCCA 196
- Hitchcock v R [2016] NSWCCA 226
- Lehn v R [2016] NSWCCA 255
- YY v R [2016] NSWCCA 124