Majid v R [2016] NSWCCA 289

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Majid v R [2016] NSWCCA 289 Hearing dates: 19 October 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Before: Payne JA at [1] Price J at [2] Davies J at [3] Decision: (1) Appeal upheld.

(2) Quash the sentence for Count 1 imposed in the District Court on 18 December 2008.

(3) Quash the sentence for Count 2 imposed by the Court of Criminal Appeal on 11 June 2010.

(4) In lieu, sentence the Appellant as follows:

(a) On Count 1 a non-parole period of seven years commencing 13 April 2008 and expiring 12 April 2015 with an additional term of four years six months expiring 12 October 2019;

(b) On Count 2 a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018 with an additional term of four years six months expiring 12 October 2022.

(c) The earliest date on which the Appellant will eligible for parole will be 12 April 2018.

(5) Dismiss the appeal as it concerns Count 3. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – two counts of aggravated sexual intercourse without consent and one count of detain for advantage – appellant sentenced pre-Muldrock – earlier appeal largely unsuccessful – part 7 application – matter referred to Court of Criminal Appeal – whether sentences affected by Muldrock error – whether sentences manifestly excessive – Crown concedes Muldrock error – need to re-sentence – whether lesser sentence warranted – objective seriousness – progress towards rehabilitation – appellant with untreated mental issues including Post Traumatic Stress Disorder from childhood – accumulation and concurrency – one sentence expired – whether expired sentence relevant for accumulation and concurrency of other offences – special circumstances – appeal allowed in part Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: 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 Davis v R [2015] NSWCCA 90 Des Rosiers v R [2016] NSWCCA 196 Hitchcock v R [2016] NSWCCA 226 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R [2016] NSWCCA 255 Louizos v R [2014] NSWCCA 242 Majid v R [2010] NSWCCA 121 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 YY v R [2016] NSWCCA 124 Category: Principal judgment Parties: Darush Majid (Appellant) Crown (Respondent) Representation: Counsel: D Kell SC and M Pulsford (Crown) G Bashir SC and J Roy (Appellant)