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IN THE SUPREME COURT OF THE )

) No. ACTCA 32 of 2013

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 46 of 2009

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MIZANUL ISLAM Appellant

AND:

THE QUEEN Respondent

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. In May 2012 a jury found Mizanul Islam guilty of one charge of aggravated robbery. In July 2012 he was sentenced to five years imprisonment from 4 October 2010 to 3 October 2015, with a non-parole period of three years and nine months commencing on 4 October 2010 and ending on 3 July 2014. He has appealed against the sentence, in particular the length of the non-parole period. An appeal against conviction was not pressed at the appeal hearing.

Grounds of appeal

2. The grounds of appeal against sentence were as follows:

(a) the sentence imposed did not give appropriate credit to the time spent in custody in relation to the offence (during the hearing this was agreed to total 987 days);

(b) the exercise of the discretion to backdate the sentence was not exercised appropriately or was exercised having regard to an irrelevant issue;

(c) there was an inappropriate relationship between the length of the head sentence and the effective non-parole period; and

(d) the sentence in respect of the non-parole period was manifestly excessive.

3. These grounds depend substantially on the structure of the sentence appealed against and its relationship with previous sentences and other periods of custody imposed on Mr Islam.

Chronology

4. The respondent provided a helpful chronology of events, to which other events have been added to produce the following chronology: Date Event Time in custody

21 August 2005

Mr Islam arrested for aggravated robbery of service station (the first robbery), committed that day, and bail refused.

2 June 2006

Mr Islam sentenced by Gray J to 4 years imprisonment, non-parole period of 18 months from 22 August 2005 to 21 February 2007.

21 February 2007

Mr Islam released on parole (leaving 30 months to be served on parole).

Mr Islam taken into immigration detention, and bridging visa cancelled

18 months

23 November 2007

Minister exercised discretion to grant bridging visa.

27 November 2007

Mr Islam released from Villawood Detention Centre, having spent 9 months and 6 days in immigration detention.

9 months, 6 days

1 May 2008

Mr Islam commits aggravated robbery of Domino’s Pizza, Mawson (the current robbery).

16 May 2008

Mr Islam arrested for the current robbery, and bail refused.

6 June 2008

Mr Islam granted bail, having spent 21 days in custody.

21 days

18 September 2008

Mr Islam breaches bail and is remanded in custody.

20 August 2009

Parole period for first robbery expires.

24 July 2010

Mr Islam granted bail, having spent 21 months and 5 days in custody.

674 days

18 January 2011

Mr Islam taken into immigration detention.

26 August 2011

Mr Islam released, having spent 7 months and 8 days in immigration detention.

220 days

15 May 2012

Mr Islam found guilty by a jury of the current robbery, and remanded in custody.

5 July 2012

Mr Islam’s sentencing proceedings for the current robbery commence.

17 July 2012

Sentence Administration Board cancels Mr Islam’s parole on sentence for the first robbery, ordering him to serve remaining 30 months in custody from 17 July 2012 until 16 January 2015.

26 July 2012

Mr Islam sentenced to 5 years imprisonment for the current robbery, backdated to 4 October 2010 with a non-parole period of 3 years and 9 months from 4 October 2010 to 3 July 2014.

72 days

Immigration matters

5. Mr Islam was born in Bangladesh in 1986 and is now 27. He has lived in Australia on and off since he was four years old, having come here with his father who held positions in the Bangladesh High Commission in Canberra. However, his immigration status is apparently still uncertain, and, as shown in the chronology, he has spent extended periods in immigration detention following the commission of each aggravated robbery.

6. There seems to be no dispute that the periods in immigration detention have been linked directly or indirectly to Mr Islam’s offending behaviour, although counsel for the respondent notes that the first period of immigration detention responded to Mr Islam’s lack of a visa rather than directly to the commission of the first robbery. In relation to that robbery, however, it seems that that offence (and possibly also Mr Islam’s criminal history before that) was relevant to the refusal of a business visa applied for after the robbery, and to the significant delay before Mr Islam was eventually granted a bridging visa which permitted his release from the first period of immigration detention in November 2007.

7. Further, the Crown conceded before the sentencing judge that the period of seven months and eight days in immigration detention while Mr Islam was awaiting trial for the current aggravated robbery should be accounted for in determining the backdating of his sentence.

8. On the appeal, counsel for Mr Islam submitted that, for the purposes of totality, his Honour in sentencing for the current robbery should have taken into account the nine months and six days spent in immigration detention in 2007 after Mr Islam was released on parole in respect of the first robbery.

9. The effect of ss 139 and 160 of the Crimes (Sentence Administration) Act 2005 (ACT) is that the Sentence Administration Board (SAB) had no power to treat Mr Islam’s time in immigration detention after he was released on parole as time served on the sentence for the first robbery. The respondent said that, because the SAB could not have taken that period into account in the orders it made following the cancellation of Mr Islam’s parole, the submission that the sentencing judge should have taken into it into account should be rejected. Relevant matters in the sentencing hearing

10. In his sentencing remarks, his Honour summed up the current robbery as follows: The offence committed by the offender was a fairly typical armed robbery offence. It was committed late at night. It was committed with the use of a weapon, namely a knife, which is a weapon easily obtained and capable of causing injury and death. It was committed upon vulnerable victims, one a juvenile at age 15 years, cleaning a fast food outlet. Although the knife was shown to [the victims], it was not used upon either of them. Neither [victim] was injured. Only a relatively small amount of money, an amount between $300 and $600, was taken.

11. His Honour described Mr Islam in general terms as follows: The offender is a fairly typical robber. He was a young man, aged only 21 years 11 months. He is poorly educated. He is unemployed. He had abused both alcohol and prohibited drugs. He mixed with the “wrong crowd”. He has a criminal record, including an offence of assault with intent to rob and an offence of aggravated robbery. He used a knife, which seems to be the weapon of choice of robbers, because a knife is a weapon easily obtained and easily concealed.

12. Although no issue is taken with the head sentence imposed by his Honour, it is appropriate given the challenge to the non-parole period to mention some further details about Mr Islam’s background.

13. First, it is relevant that the current robbery was committed less than six months after Mr Islam was released from his first period of immigration detention, and while he was on conditional liberty, being still subject to parole obligations in respect of the first robbery.

14. His Honour also noted that: The offender was raised in a caring and supportive environment by his parents who were strict disciplinarians with strong Muslim cultural and religious values. Notwithstanding that when he was aged about 16 years he rebelled against his parents’ authority, he lived in the family home until his marriage on 18 March 2012. ... The offender has not held any employment since leaving school during 2004, as the visa that has been granted to him prohibited him from holding employment.

15. The Pre-Sentence Report before his Honour said that Mr Islam had married his partner of eight years in March 2012 and they were expecting their first child in September 2012, and that the relationship appeared to be a positive one; the report contained the following assessment of Mr Islam: Despite being brought up in a stable, supportive family environment, Mr Islam reports having struggled during his adolescence with the contrast between the traditional Bangladeshi cultural expectations of his family and his mainstream Australian values. This appears to have contributed to his association with antisocial peers from adolescence, which in turn saw him become involved in illicit drug use and crime. Mr Islam has spent much of the past five years in custody, he reports having addressed his illicit drug use issues in the interim of his own volition, rather than through the assistance of professional interventions. It is also noted that his compliance with obligations in custody and in the community have [sic] been considered satisfactory in recent years. Mr Islam is assessed as a low to moderate risk of reoffending. His relationships with his wife and family are considered stabilising influences, as is his apparent abstinence from use of illicit drugs. Nevertheless, his having been charged with recent driving offences gives rise to concerns. His Honour’s approach to sentencing

16. The sentencing judge had a complex task before him in sentencing for the current robbery. He was required to determine what periods already served in some form of custody should be taken into account by backdating the sentence. He was required to determine what concurrency and accumulation were required between the sentence for the first robbery and that for the current robbery. He was required to consider the totality principle more generally. He was required to address all these considerations in the context that the SAB had ordered Mr Islam to serve the outstanding portion of the sentence for the first robbery, and had specified the dates during which the remaining portion of that sentence would run.

17. In working out the sentence to be imposed, his Honour did two unusual things, as indicated in the following extract from his sentencing remarks: As to how much of the non-parole [sic] period of two years six months which the offender must serve for the offence of aggravated robbery committed on 21 August 2005, I consider that that period is one year, so that the date for backdating of the date for commencement of the sentence for the subject offence of aggravated robbery by 1016 days is 15 July 2013. I calculate that the date backdated by 1016 days from 15 July 2013 is 4 October 2010.

18. Counsel for Mr Islam submitted that the effect of this approach “was to displace the approach of His Honour Justice Gray as to the structure of his sentence in respect of the relativities between head sentence and non-parole period.” At the appeal hearing counsel submitted, in response to a comment from Refshauge J to the effect that the sentencing judge couldn’t “resentence Mr Islam for the offence for which Gray J had sentenced him”, that: He can’t, but he did, and he said that quite explicitly that that’s what he was trying to do.

19. Although the sentencing judge’s comment might have suggested an attempt to re-sentence Mr Islam for the first robbery, it seems to us most likely that all his Honour was doing was indicating his thinking about concurrency and accumulation as between the sentence for the first robbery by Gray J and the sentence his Honour was imposing.

20. However, the second part of his Honour’s reasoning is much harder to explain. To say that “the date for backdating of the date for commencement of the sentence for the subject offence of aggravated robbery by 1016 days is 15 July 2013 [being a date almost a year into the future]” does not seem to make any sense. By post-dating the date from which backdating is to be calculated, his Honour has effectively deprived Mr Islam of the benefit of almost a year of the period which he had already spent in some form of custody attributable to the commission of the current robbery. The effect of the sentencing approach

21. The effect of the sentence imposed by his Honour for the current robbery is that the total time to be served for the two aggravated robberies is six and a half years (made up of the 18 months non-parole period originally served from mid-2005 until early 2007, and the five years for the current robbery, specified to run from October 2010 until October 2015; the remaining period of the first sentence that the SAB directed Mr Islam to serve is entirely concurrent with the new sentence imposed by his Honour, starting several days before Mr Islam was sentenced to a substantially backdated sentence for the current robbery and ending roughly eight months before the end of that sentence).

22. However, in imposing that sentence, his Honour has, as noted, failed to give Mr Islam the benefit of roughly 11 months in pre-sentence custody (including immigration detention) that was agreed to be attributable to the commission of the current robbery. This occurred because, although his Honour gave credit for roughly 22 months of pre-sentence custody (662 days) in his backdating, Mr Islam had in fact spent a total of nearly 33 months in pre-sentence custody (987 days), including just over seven months in immigration detention.

23. It is possible that his Honour in fact intended a total sentence of seven and a half years, with the effective concurrency between the two sentences amounting to 18 months. This is the end result of his Honour, in sentencing for the current robbery, not accounting for roughly 11 months of the pre-sentence custody attributable entirely to that robbery. However, if that is what His Honour intended, he should have made that explicit, and explained the limited concurrency being provided. It may be that, once the SAB had specified the dates for the remainder of the first robbery sentence to be served, such a result could only have been achieved by ignoring some of Mr Islam’s pre-sentence custody, but if so, this should have been made explicit and explained.

24. The total parole period available in the six and a half years that his Honour in fact imposed was 15 months. That is, the effect of his Honour’s sentence was to impose a non-parole period of five years and three months, equivalent to nearly 81% of the total term.

25. As noted at [22] above, his Honour gave no reason for ignoring the roughly seven months in immigration detention, or even the other four months of Mr Islam’s time in pre-sentence criminal justice custody, in his backdating, and focused instead on how much of the re-imposed sentence for the first robbery ought to be served in full-time custody. Nor did he explain why such a substantial non-parole period was required, especially for a person who, despite having a poor criminal record behind him, was still a young man with genuine prospects of rehabilitation, a view indicated not just by his family members but also by the Pre-Sentence Report author, who noted his self-directed abstinence from illicit drugs, his satisfactory compliance with supervision conditions while on bail, and his compliant behaviour while in custody, and assessed Mr Islam as at “low to moderate” risk of re-offending and as having the capacity to complete a good behaviour order. Consideration

26. While disregarding periods of pre-sentence custody and setting a high non-parole period were both within his Honour’s sentencing discretion, each of them in our view required an explanation, and we are satisfied that the failure to provide any such explanation, and indeed the failure to identify that these approaches were being taken, indicated sentencing errors (see WO (a child) v Western Australia (2005) 153 A Crim R 352 at 354; [7]; R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 394‑5; [42]-[44]), perhaps best categorised as failures to have regard to relevant considerations. Furthermore, in the absence of any explanation from his Honour, we can find nothing in either the circumstances of Mr Islam’s offences or his personal circumstances that would justify those approaches to the sentencing. We are accordingly of the view that another sentence is justified. In those circumstances, we consider that it would be open to the Court to re-sentence Mr Islam. Resentencing

27. As noted, the basic effect of his Honour’s sentencing approach was to require a total term of six and a half years imprisonment to be served by Mr Islam. That is, the sentence imposed by his Honour, being five years imprisonment for the current robbery, was to be accumulated on the original sentence of four years so as to add two and a half years to the total sentence. Subject to a complication arising from the decision of the SAB which is mentioned at [29] below, we do not see any reason to depart from that approach.

28. Of that six and a half year sentence, 18 months had already been served in respect of the first robbery, leaving five years (equal to the new sentence) to be served. As noted, we can see no reason why that sentence should not be backdated to take account of all pre-sentence custody attributable to the current robbery that was served by Mr Islam before he was sentenced for that later offence. Applying the backdating period of 987 days, the sentence imposed on 26 July 2012 should have been backdated to 12 November 2009.

29. The effect of that backdating would be that Mr Islam’s five-year sentence would expire on 11 November 2014, and he would then be subject only to the remainder of the cancelled parole period of the first sentence, which will expire roughly two months later on 15 January 2015. That in turn would mean that Mr Islam’s total sentence for the two robberies would in fact amount to roughly six years and eight months (18 months served in 2005 to 2007 and the period from 12 November 2009 until 15 January 2015, which is just over five years and two months).

30. In the current circumstances (that is, where a sentence is imposed on an offender who is already serving a sentence of imprisonment), s 66 of the Crimes (Sentencing) Act 2005 (ACT) requires that a new non-parole period be set for a term equal to the total of the terms of the existing sentence and the primary sentence. Even a non-parole period of roughly 80% of that total term would amount to 5 years and four months, which (having regard to the fact that 18 months of that period was served in 2005 to 2007 and the remainder of it would have commenced running on 23 November 2009) would have expired on 22 September 2013. Our inclination would have been to set a somewhat lower non-parole period, in the order of 70% of the total term (four years and six months). On the basis that Mr Islam has already served several months more than even an 80% non-parole period would have required, and that the parole process will probably take at least another month, we would have considered it appropriate to suspend his sentence with immediate effect. However, suspending the sentence for the current robbery would leave him still serving the sentence for the first robbery, although probably with an immediate entitlement to apply for parole (the exact effect of the Crimes (Sentencing) Act in such circumstances is not clear). In that situation, he is better off with a new non-parole period being set, in accordance with the Crimes (Sentencing) Act, for the total sentence, and so we will set a non-parole period for the total sentence expiring today (noting that the effect of this is that Mr Islam has already served, by our calculations, five years, nine months and five days of the total effective sentence of six years, eight months and three days). Sentencing judge’s powers in relation to first period spent in immigration detention

31. In these circumstances, there is no need to pursue the question of the first period spent in immigration detention and whether it should have been taken into account for totality purposes. However, we should say that we are not convinced by the respondent’s argument that since that period could not have been taken into account by the SAB in cancelling Mr Islam’s parole, it could not be taken into account, in recognition of the totality principle, in determining for instance the concurrency and accumulation as between the two sentences. The SAB does not exercise a sentencing discretion, and does not concern itself with matters such as totality. The fact that the SAB could not take account of a particular matter in cancelling an offender’s parole has in our view no necessary implication for the exercise of the sentencing discretion conferred on a judicial officer. Orders

32. The orders are that: (a) the appeal is upheld; (b) Mr Islam is resentenced, for the aggravated robbery committed on 1 May 2008, to five years imprisonment backdated to 12 November 2009 and therefore finishing on 11 November 2014; and (c) a non-parole period finishing on 17 February 2014 is set for the head sentence of six years, eight months and three days currently being served and expiring on 15 January 2015.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:

Counsel for the appellant: Mr K Archer

Solicitor for the appellant: Paul Edmonds & Associates

Counsel for the respondent: Ms M Jones

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 29 October 2013

Date of judgment: 17 February 2014

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