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:
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
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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hasan v The Queen [2010] VSCA 352
Case
[2010] VSCA 352
Decision Date
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.