Hassan v The Queen

Case [2022] SASCA 56

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HASSAN v THE QUEEN

[2022] SASCA 56

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Doyle)

22 June 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT

Appeal against sentence on the grounds of manifest excess and disparity.

The appellant and a co-accused, Ms Ruru, were jointly charged with three offences contrary to the Criminal Law Consolidation Act 1935 (SA): aggravated serious criminal trespass in a place of residence (Count 1); aggravated assault causing harm (Count 2); and theft (Count 3). While Ms Ruru pleaded guilty to all three counts, the appellant proceeded to trial and was convicted by a jury of Counts 2 and 3, but not Count 1, the trial judge having directed the jury to acquit on that count.

In October 2018, at around midnight, the appellant together with three others dressed in dark clothing, armed themselves with a baseball bat and sticks, entered the victim’s bedroom and assaulted him, causing harm in the form of a laceration to his lower right leg, a swollen right calf, a cut lip and bruising. They proceeded to take around $900 in cash, two mobile phones and a bumbag. Relevantly, Ms Ruru was in a relationship with the victim and living with him in his home, but had previously been in a brief relationship with the appellant. They had planned the offending together earlier that day. Ms Ruru left with the appellant, the victim being led to believe that she had been kidnapped.

Ms Ruru was sentenced for all three counts to a single sentence of two years, nine months and three days imprisonment (discounted from a starting point of three years and six months on account of her guilty plea and further reduced for time spent in custody) with non-parole fixed at one year, seven months and 26 days. The sentencing judge refused to suspend her sentence, but ordered that it be served on home detention.

The appellant received a single sentence of three years, seven months and 11 days imprisonment. The sentencing judge identified notional starting points of three years for Count 2 and 18 months for Count 3, before aggregating the sentences to arrive at a head sentence of four years imprisonment (implicitly allowing six months concurrency). The sentencing judge then reduced the sentence for time spent in custody, and fixed a non-parole period of two years and two months. His Honour refused to suspend the sentence or allow that it be served on home detention.

The appellant appeals against his sentence…

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Hassan v The Queen [2022] SASCA 56
Case
[2022] SASCA 56
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence by the appellant, Mr Hassan, who, along with a co-accused, Ms Ruru, had been convicted of assault and theft. The prosecution alleged that on 28 October 2018, the appellant and Ms Ruru, with three others, entered the victim's residence, assaulted him, and stole cash, mobile phones, and a bumbag. The offending was described as the culmination of a plan between Ms Ruru and the appellant to stage a kidnapping of Ms Ruru. The victim sustained injuries including a laceration to his leg, a swollen calf, a cut lip, and bruising. Ms Ruru pleaded guilty to all charges, while the appellant was found guilty of assault and theft after a trial.

The legal issues before the court included whether the sentences imposed were manifestly excessive or inadequate, and whether there was a lack of parity between the sentences of co-offenders. The court was required to consider the circumstances of the offending, including the planning involved, the use of weapons, the degree of violence inflicted upon the victim, and the impact of the offences. Furthermore, the court had to assess the relative culpability of the appellant and Ms Ruru, taking into account their respective roles in the commission of the offences and any mitigating or aggravating factors.

The court reasoned that while Ms Ruru had pleaded guilty and cooperated with authorities, the appellant had proceeded to trial. The judge noted that the appellant had played a significant role in the planning and execution of the assault and theft, arriving at the victim's residence armed and with masked associates. The court considered the appellant's prior criminal history, which included offences of violence, as an aggravating factor. In contrast, Ms Ruru's role, while serious, was viewed as being influenced by her desire to escape an unhealthy relationship. The court ultimately found no error in the sentencing judge's assessment of the offending and the sentences imposed, concluding that they were not manifestly excessive or inadequate and that there was no unjustifiable disparity between the sentences of the co-offenders.

The appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Before addressing these grounds, it is necessary to set out the background relevant to the sentences imposed upon both the appellant and Ms Ruru.Background and circumstances of the offending As mentioned, Ms Ruru and the appellant were jointly charged with three offences, which I shall refer to as the trespass, assault and theft offences, or Counts 1, 2 and 3, respectively. The prosecution case was that on 28 October 2018, the appellant and Ms Ruru entered or remained in the place of residence of the victim as a trespasser, with the intention of committing assault (Count 1). Acting in company with three other people and armed with a baseball bat, the appellant and co-accused assaulted the victim and thereby caused him harm (Count 2). They also took from him $900 in cash, two mobile phones and a bumbag (Count 3). The context in which this offending was alleged to have occurred was that, at the time of the incident, Ms Ruru was in a relationship with the victim and was living with him at his house in Morphett Vale. This was where the offending occurred. Ms Ruru had previously been in a relationship with the appellant and they had a child together. The offending was the culmination of a plan between Ms Ruru and the appellant to stage a kidnapping of Ms Ruru. As a result of the assault, the victim sustained a laceration to his lower right leg, a swollen right calf, a cut lip and bruising. On the morning of the trial, Ms Ruru pleaded guilty to all three counts. The appellant proceeded to trial. At the close of the prosecution case, the trial judge ruled that there was no case to answer in respect of the trespass offence, and directed the jury to acquit on that count. His Honour’s reason for so holding was that the prosecution could not disprove that the appellant had the consent of an occupier of the property, namely Ms Ruru, to enter or remain in the property.[2][2] Whether that was an appropriate way of considering the question of consent is not an issue which it is necessary to decide on this appeal. The trial proceeded on the remaining two counts of assault and theft, and the appellant was jury found the appellant guilty of both. The judge described the factual basis for the sentences to be imposed in the following terms:The offending occurred in the following circumstances. At the time of the alleged offending you, Ms Ruru, had been in a relationship with the victim for about a month or so. The two of you met when you were both in-patients in a residential mental health facility. After both of you were discharged you came to live with the victim at his house in Morphett Vale. You say that relationship was an unhealthy one and marked by domestic violence. You say that you came to feel trapped in your circumstances, fearful of the victim’s controlling behaviour and violence and that things got to a point where you desperately needed to find a way out.You had previously been in a brief relationship with Mr Hassan. That relationship produced a child and, notwithstanding an intervention order preventing him from having contact with you, you facilitated his contact with the child.In the early afternoon on the day of the offending Mr Hassan sent a Facebook message to the victim asking for your mobile phone number, Ms Ruru. Mr Hassan, you had never met the victim but the victim knew that you had a child with Ms Ruru and so he responded by sending you the number of his spare phone to allow you to communicate with her. You, Ms Ruru, then used that phone to speak with Mr Hassan whilst you were in another room and out of range of the victim’s hearing. You used the spare phone to send text messages to Mr Hassan during the course of the day. I will not repeat the content of those messages in these remarks but it is clear that during the course of the evening you sent messages to Mr Hassan to encourage him to give effect to a plan that had clearly been made between you during the course of the day.Mr Ruru, when you and the victim went to bed that night you made sure that the front door of his house was unlocked. You sent texts to Mr Hassan urging him to come quickly and you, Mr Hassan, were at pains to ask what side of the bed Ms Ruru slept on and where the victim placed his phone. Ms Ruru, you reminded Mr Hassan to say when committing the offence ‘Ross wants you Summer. You are coming with us.’What happened when you, Mr Hassan, arrived with your three associates at about midnight is that you burst in through the front door and entered the victim’s bedroom where he lay with your co-accused Ms Ruru. You were all dressed in dark clothing and you, Mr Hassan, were wearing a hockey mask. At least one of you was carrying a baseball bat and at least two others were armed with either baseball bats or sticks. Your associates were also wearing masks.The victim was struck with bats by at least two of you to his leg, head and arm. During the assault one of the assailants held what the victim believed to be a taser to his face and someone threatened to stab him.Whilst all of this was going on, unbeknownst to the victim, you Ms Ruru, were gathering up your things and preparing to leave. One of the males shouted ‘Grab the phones’ and the two of you left in a car with the other three men.The victim sustained a laceration to his lower right leg which bled profusely and required stitches as well as a swollen right calf, a cut lip and bruising.The two of you took from the victim a bumbag which contained his wallet, numerous cards and $900 cash. You also took two mobile phones and his house keys.He believed that you, Ms Ruru, had been abducted, which is what you wanted him to believe to avert suspicion from yourself. He asked his neighbour to call the police.Ultimately police attended your house, Mr Hassan, at around 3 am in the morning just as you were arriving home in a car with another and Ms Ruru. You were both caught red-handed and in your bedroom, Mr Hassan, police located Ms Ruru’s bag with some of her belongings in it including the night garment she had been wearing, the two mobile phones which had been stolen from the victim and numerous identification cards which had been in his wallet. The $900 was not located and presumably had been disposed of by that stage.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would thus reject the appellant’s second ground of appeal.Conclusion For the reasons given, and permission to appeal having already been granted on Ground 1.1, I would grant permission to appeal on Grounds 1.2 and 2, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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