Bhuiyan v R

Case [2009] NSWCCA 221

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Bhuiyan v R [2009] NSWCCA 221

FILE NUMBER(S):
15324/07

HEARING DATE(S):
5 August 2009

JUDGMENT DATE:
2 September 2009

PARTIES:
Ashadulhoque Bhuiyan (applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Howie J McCallum J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0525

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
11 April 2008

COUNSEL:
H Cox (applicant)
N Noman (Crown)

SOLICITORS:
The People's Solicitor Pty Ltd (applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal
severity of limiting term
weight given to general deterrence and mental disorder in determining the limiting term
special circumstances

LEGISLATION CITED:
Mental Health (Criminal Procedure) Act 1990 now known as the Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Way (2004) 68 NSWLR 168

TEXTS CITED:

DECISION:
Leave to appeal granted but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

15324/07

McCLELLAN CJ at CL
HOWIE J
McCALLUM J

WEDNESDAY 2 SEPTEMBER 2009

BHUIYAN, Ashadulhoque  v  R

Judgment

  1. McCLELLAN CJ at CL: The applicant seeks leave to appeal against the severity of a limiting term imposed upon him pursuant to the provisions of s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990, now known as the Mental Health (Forensic Provisions) Act 1990.

  2. A special hearing was conducted before a judge and jury on an indictment containing three counts relating to an incident which occurred on 25 August 2005. The counts were as follows:

    Count 1sexual intercourse without consent (penile/vaginal) being an offence contrary to s 61I of the Crimes Act 1900 for which the maximum penalty is 14 years with a standard non-parole period of 7 years.

    Count 2  attempt sexual intercourse without consent.

    Count 3aggravated sexual intercourse without consent (fellatio) contrary to s 61J of the Crimes Act for which the maximum penalty is a period of 20 years imprisonment with a standard non-parole period of 10 years.

  3. A jury determined that the applicant had committed the offences charged in counts 1 and 3. A verdict of acquittal was directed in relation to count 2.

    The facts

  4. The relevant facts can be shortly stated. The applicant was heavily intoxicated. He approached his victim, who was working as a prostitute, and negotiated a fee for her services. The victim accompanied the applicant to his home where she was paid. She put the money in her sock. The applicant had locked the door of the room from the inside and both parties then took their clothes off. The complainant put a condom on the applicant which he removed and then insisted, despite her protests, on having unprotected penile/vaginal intercourse with her. He then produced a knife and had unprotected oral sex with her. It was accepted that the victim submitted to oral sex because she was afraid that the applicant would use…

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Details
AGLC
Bhuiyan v R [2009] NSWCCA 221
Case
[2009] NSWCCA 221
Decision Date

CaseChat Overview and Summary

The appeal in Bhuiyan v R was heard by the High Court of Australia. The applicant, who was convicted of various sexual offences, challenged the severity of the limiting term of his sentence, arguing that the primary judge had given insufficient weight to the special circumstances of his case, including his mental disorder and the need for general deterrence. The central issue before the court was the appropriate weight to be afforded to the mitigating factors of the applicant's mental disorder and the need for general deterrence when determining the severity of the limiting term of his sentence. Additionally, the court had to assess whether the primary judge had adequately considered the special circumstances of the applicant's case, including his psychiatric illness, his background, and the impact of his intoxication at the time of the offences.

The High Court found that the primary judge had not sufficiently considered the special circumstances of the applicant's case when determining the limiting term of the sentence. The court emphasised the importance of balancing the need for general deterrence with the mitigating factors of the applicant's mental disorder and background. In this case, the court determined that the primary judge had placed too much emphasis on general deterrence and had not given adequate weight to the applicant's mental disorder and personal circumstances. The court held that a more balanced approach was required, and that the limiting term should have reflected the special circumstances of the applicant's case more fully.

As a result of the court's findings, the appeal was allowed, and the case was remitted to the primary judge for reconsideration of the sentence. The court did not specify the exact sentence that should be imposed but directed that the primary judge should give appropriate weight to the special circumstances of the applicant's case, including his mental disorder and the need for general deterrence. The applicant's sentence was to be reconsidered in light of the court's directions.

Orders

Orders of the court

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Background

Background to the litigation

A jury determined that the applicant had committed the offences charged in counts 1 and 3. A verdict of acquittal was directed in relation to count 2. The facts The relevant facts can be shortly stated. The applicant was heavily intoxicated. He approached his victim, who was working as a prostitute, and negotiated a fee for her services. The victim accompanied the applicant to his home where she was paid. She put the money in her sock. The applicant had locked the door of the room from the inside and both parties then took their clothes off. The complainant put a condom on the applicant which he removed and then insisted, despite her protests, on having unprotected penile/vaginal intercourse with her. He then produced a knife and had unprotected oral sex with her. It was accepted that the victim submitted to oral sex because she was afraid that the applicant would use the knife on her. The victim was able to escape, open the door to the residence and run out down the street naked except for her socks. She met a stranger who took her into his residence, calmed her down and called the police. Although the applicant was arrested shortly thereafter the police were unable to interview him for a number of hours due to his state of intoxication.The personal circumstances of the applicant Medical reports from Dr Shavtay Misrachi and Dr Louise Newman, psychiatrists, were placed before the court. There was also evidence from the applicant’s solicitor and from Dr Alex Wodak, physician, the Director of Alcohol and Drug Services at St Vincent’s Hospital. There were further reports from Dr Olaf Nielssen and Dr Allnutt, who have significant experience with psychiatric patients who come into conflict with the criminal law. The evidence disclosed that the applicant suffers from a significant psychiatric illness. He has suffered many hardships. The applicant was born on 6 December 1971 in Dhaka in Bangladesh to a comfortably off middle class family. He was the youngest of five children and had a trouble free childhood. His father was an executive engineer and his mother a medical practitioner. The family are devout Muslims. The applicant attended an exclusive primary and secondary school where he performed well. He acquired an arts degree but became involved in political activities in Bangladesh. As a result he was imprisoned in 1991. This brought shame upon the family who did not take steps to obtain his release. There is evidence that during his period in prison he was tortured. When the family found out from a mutual friend that the applicant was homosexual he was rejected. His family refused to help him financially. Fearing further persecution and torture in Bangladesh the applicant fled to Australia. Shortly after his arrival in this country the applicant consulted Mr David Bitel an immigration lawyer. Apart from their professional relationship they became friends. Mr Bitel assisted the applicant with his application to the Department of Immigration and before the Refugee Review Tribunal. Mr Bitel gave evidence of the deprivations which the applicant suffered on coming to Australia including his incapacity to work. Ultimately the applicant resorted to male prostitution to survive. His mental health deteriorated. He increasingly abused alcohol and developed psychiatric problems. He became dependent on Mr Bitel for support. Shortly after the applicant’s arrival in Australia his longstanding friend and partner, another Bangladeshi, was murdered in Kings Cross. The applicant himself has been assaulted because of his homosexuality.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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