Hasan v The Queen

Case [2010] VSCA 352


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 574

MOHAMED HASAN
v
THE QUEEN

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JUDGES MAXWELL P, REDLICH and HARPER JJA
WHERE HELD MELBOURNE
DATE OF HEARING 20 July 2010
DATE OF JUDGMENT 17 December 2010
MEDIUM NEUTRAL CITATION [2010] VSCA 352                  First Revision 20 August 2012
JUDGMENT APPEALED FROM R v Hasan (Unreported, County Court of Victoria, Judge Morrish, 3 April  2009)

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CRIMINAL LAW – Sentence – One count of rape – Summary offence of failing to answer bail – Sentenced to six years’ imprisonment for rape and six months’ imprisonment for failure to answer bail – Total effective sentence of six years and three months – Non-parole period of four years –Victim asleep – Penile, unprotected rape – DNA match obtained – Offender fled jurisdiction for two years – No prior convictions – Offender intoxicated – Plea of guilty – Whether intoxication a mitigating factor – Whether offending ‘out of character’ – Whether rape sentence manifestly excessive – Consideration of applicable sentencing range – Rape sentence set aside as manifestly excessive – Offender resentenced – Need for review of sentencing practices for rape.  

CRIMINAL LAW – Appeal – Sentence – Sentencing principles – Relevance of intoxication of offender – Review of authorities – Intoxication not ordinarily a mitigating factor – Limited scope of ‘out of character’ exception.

CRIMINAL LAW – Appeal – Sentence – Current sentencing practice – Use of comparable cases and sentencing statistics – Consistency in sentencing – Identification of appropriate sentencing range – Role of instinctive synthesis – Sentencing discretion – Hili v The Queen [2010] HCA 45 and Hudson v The Queen [2010] VSCA 332 followed.

APPEARANCES: Counsel Solicitors
For the Appellant Mr D A Dann

Victoria Legal Aid

For the Crown Mr T Gyorffy Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
HARPER JA:

  1. The appellant pleaded guilty to one count of rape and was sentenced to six years’ imprisonment.  He was also sentenced to six months’ imprisonment for the summary offence of failing to answer bail.  Three months of that sentence was directed to be served cumulatively on the sentence for rape.  The sentences imposed can be summarised as follows:

Count Offence Maximum Sentence Cumulation
1 Rape 25y 6y BASE
Summary offence Failure to answer bail 12m 6m 3m
TES:    6y 3m  6AAA    TES:   8y 4m
NPP:   4y  NPP:   5y 6m
  1. He now appeals against the sentence, on a number of grounds.  For reasons which follow, we would uphold the ground of manifest excess, but reject the other grounds.  As will appear, the ground of manifest excess succeeds because  the sentence imposed was beyond the range of sentences that was reasonably open to the sentencing judge, given current sentencing practices.

The circumstances of the offending

  1. One evening in December 2005, the victim (‘MK’) was out drinking and dancing with her friends.  In the early hours of the morning, she made the acquaintance of a male (‘CJ’) and, in due course, she and one of her…

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Hasan v The Queen [2010] VSCA 352
Case
[2010] VSCA 352
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CaseChat Overview and Summary

The defendant in Hasan v The Queen appealed against the sentence imposed by the trial judge. The defendant was convicted of one count of rape and one summary offence of failing to answer bail. The trial judge sentenced the defendant to six years’ imprisonment for the rape and six months’ imprisonment for the bail offence, to run concurrently, resulting in a total effective sentence of six years and three months, with a non-parole period of four years. The legal issues in this appeal centred on whether the sentence for the rape was manifestly excessive and whether the trial judge had given adequate consideration to relevant sentencing principles and authorities.

The court found that the trial judge had not adequately considered the applicable sentencing range and had failed to give appropriate weight to the principles and authorities concerning intoxication as a mitigating factor and the concept of offending being 'out of character'. The court concluded that intoxication was not ordinarily a mitigating factor and that the 'out of character' exception had limited scope. The court followed the decisions in Hili v The Queen [2010] HCA 45 and Hudson v The Queen [2010] VSCA 332, which emphasised the importance of considering comparable cases and sentencing statistics to ensure consistency in sentencing. The court also highlighted the role of instinctive synthesis in exercising sentencing discretion.

The appeal was allowed, and the sentence for the rape was set aside as manifestly excessive. The defendant was resentenced to five years’ imprisonment for the rape, to run concurrently with the six months for the bail offence, resulting in a total effective sentence of five years and a non-parole period of three years and four months. The court also noted the need for a review of sentencing practices for rape to ensure that appropriate consideration is given to relevant principles and authorities.

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