AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 23 June 2023

Rahman v R

[2023] NSWCCA 148

Assault & violencePublic order & justice offences
CRIME APPEAL APPEAL AGAINST SENTENCE MULTIPLE KIDNAPPING CHARGES SPECIALLY AGGRAVATED LEAVE TO APPEAL GRANTED

Citation: Rahman v R [2023] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 23 June 2023
Judge(s): Adamson JA at [1]; Button J at [9]; McNaughton J at [95]

Background

The applicant was sentenced in the District Court on two counts of specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW). Both offences involved abducting victims in company, resulting in actual bodily harm. The applicant pleaded guilty and received an aggregate sentence of 10 years and 6 months, with a non-parole period of 6 years and 9 months.

The first kidnapping was particularly serious. A co-offender struck the victim on the head with a pistol, causing grievous bodily harm, including a shattered skull, scalp laceration, and brain hernia. Both co-offenders continued to assault the victim, transported him unconscious to a semi-rural property, and issued a $4 million ransom demand. The victim was left overnight in a shed and later found by passers-by.

The sentencing judge accepted that the applicant had not known the co-offender would carry a firearm and had not foreseen the severity of the resulting injuries. Accordingly, the judge declined to treat the injuries as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, the judge did take the degree of violence inflicted into account when assessing the overall objective seriousness of the offending.

  • Whether the sentencing judge erred by taking into account the degree of violence inflicted by co-offenders when assessing the objective seriousness of count one, given the applicant had not foreseen that violence.
  • Whether an applicant can, on appeal, withdraw a concession made at first instance that victim injuries were relevant to objective seriousness.
  • Whether actual harm suffered by a victim can properly inform objective seriousness even where that harm was not intended or reasonably foreseen by the offender, and where it was not treated as a statutory aggravating factor.

Decision

The Court granted leave to appeal but dismissed the appeal, with all three judges agreeing on the outcome.

A central obstacle to the appeal was a concession made at first instance. The applicant's trial counsel had conceded, both orally and in writing, that the victim's injuries were relevant to objective seriousness. On appeal, different counsel sought to resile from that concession on the basis it reflected a misunderstanding of sentencing law. The Court declined to permit that. Applying Zreika v R [2012] NSWCCA 44, the Court reaffirmed that leave to appeal is not an opportunity to retreat from considered concessions made below, unless there has been a serious injustice and the concession was plainly wrong. No such circumstances existed here.

The Court also rejected the substantive argument. The sentencing judge had not treated the injuries as an aggravating factor against the applicant: she explicitly found s 21A(2)(g) was not enlivened. Rather, she treated the objective reality of what occurred during the offence as relevant to its overall gravity. The Court held that NSW sentencing law does not require a judge to disregard what actually happened to a victim simply because those consequences were unintended or unforeseen by a particular offender. The injuries formed part of the objective reality of the offending.

The applicant's reliance on Josefski v R [2010] NSWCCA 4 was rejected. Button J found that decision concerned harm that was not an element of the offence charged, in contrast to the present case where the degree of actual bodily harm was a matter going to the gravity of an element of count one. If anything, Button J noted, Josefski tended against the applicant's position.

Adamson JA added that the concession made at first instance was not merely defensible but, in her Honour's view, correct and indeed inescapable. McNaughton J agreed with both sets of reasons.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Applications for leave to appeal that directly contradict concessions made at first instance will not readily be entertained by the Court of Criminal Appeal, except where there has been a serious injustice and the concession was plainly wrong. Zreika v R [2012] NSWCCA 44 continues to govern this principle.

  • A sentencing judge may take actual harm suffered by a victim into account as part of the objective seriousness of an offence, even where that harm was neither intended nor reasonably foreseen by the offender, and even where it has not been treated as a statutory aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • There is a distinction, confirmed here, between using unforeseen consequences as an aggravating feature against a particular offender (not permissible where foreseeability is not established) and acknowledging those consequences as part of the objective reality of the offending (permissible as part of an objective seriousness assessment).

  • Josefski v R [2010] NSWCCA 4 applies in the context of harm that is not an element of the offence charged; it does not prevent a court from considering the degree of harm constituting an element of the offence when assessing objective gravity.

  • Changing legal representation between first instance and appeal does not, of itself, provide a basis for withdrawing concessions previously made and accepted by the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Surveillance Devices Act 2007 (NSW), s 9(1)(b)
- Crimes Act 1900 (NSW), s 93T(1A)

Cases
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Bell v R [2019] NSWCCA 251
- Josefski v R [2010] NSWCCA 4; (2010) 217 A Crim R 183
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Wickham [2004] NSWCCA 193
- Director of Public Prosecutions v Arvanitidis [2008] VSCA 189