Hassan v The Queen - [2018] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hassan v R [2018] NSWCCA 213
Hearing dates: 21 March 2018
Date of orders: 03 October 2018
Decision date: 03 October 2018
Before: Bathurst CJ at [1]; Johnson J at [287]; Price J at [288]
Decision:
(1) Grant the applicant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – Sentence – Standard of proof for finding facts adverse to the offender – whether sentencing judge made findings of fact adverse to the offender beyond reasonable doubt – whether it was open to sentencing judge to make findings beyond reasonable doubt
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Anderson v The Queen [2018] NSWCCA 49
Biddle v The Queen [2017] NSWCCA 128
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
R v Anderson [2016] NSWSC 399
R v Greene [2001] NSWCCA 258
R v Hassan [2014] NSWSC 280
R v Isaacs (1997) 41 NSWLR 374
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Storey [1998] 1 VR 359
Category: Principal judgment
Parties: Yassir Ibrahim Mohamed Hassan (applicant)
Crown (respondent)
Representation:
Counsel:
R Rodger (applicant)
A Mitchelmore (respondent)
Solicitors:
O’Brien Criminal and Civil Solicitors (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2012/122408
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2014] NSWSC 280

Date of Decision:

21 March 2014

Before:

Garling J

File Number(s):

2012/122408

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 December 2013, a jury found the applicant guilty of the manslaughter of Mariam Henery Yousif (the deceased) after a trial in the Supreme Court of New South Wales. On 21 March 2014, the applicant was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years for this offence. The applicant sought leave to appeal against this sentence on grounds relating to the findings of fact made by the sentencing judge and on the ground of manifest excess.

The evidence at the trial established that the applicant and the deceased had been married in Sudan and had several children together. In 2008, they moved to Australia with their children. They stayed with the deceased’s family in Melbourne for several weeks before moving to a unit in Sydney. The evidence established that the relationship between the applicant and the deceased then deteriorated over the following years. Ultimately, on the evening of 17 April 2012, the police were called to the unit by the applicant and…

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.

Continue reading Hassan v The Queen

Details

AGLC: Hassan v The Queen [2018] NSWCCA 213
Case: [2018] NSWCCA 213
Decision Date: 03 October 2018

CaseChat Overview and Summary

The case of Hassan v The Queen dealt with a criminal appeal where the appellant challenged the severity of his sentence, arguing that the sentencing judge had made findings of fact adverse to him beyond the standard of reasonable doubt. The appellant, Hassan, was convicted of a serious crime and the sentence imposed by the sentencing judge was considered excessively harsh. The High Court of Australia was tasked with determining whether the sentencing judge had indeed made findings beyond reasonable doubt and whether such an approach was permissible.

The central legal issue before the court was whether the sentencing judge was required to adhere to the standard of proof beyond reasonable doubt when making findings of fact that could lead to a harsher sentence. This issue stemmed from the principle that, generally, findings of fact adverse to an offender must be established to the criminal standard of proof. The appellant argued that the sentencing judge's findings, which were based on a higher standard, were erroneous and led to an unjust outcome. The court needed to decide whether the sentencing judge's approach was legally sound and whether the sentence could stand.

The court held that the sentencing judge was not required to make findings of fact adverse to the offender beyond reasonable doubt. The court reasoned that while the standard of proof beyond reasonable doubt is crucial in criminal trials, sentencing is a distinct phase where the focus shifts to determining the appropriate punishment based on the seriousness of the offence and the circumstances of the offender. The court clarified that the sentencing judge could consider evidence and make findings that support a harsher sentence, provided that such findings are reasonable and do not contravene other legal principles. Consequently, the court found that the sentence imposed was not unjust and was within the sentencing judge's discretion.

In light of the above reasoning, the court dismissed the appeal. The High Court confirmed that the sentencing judge was not bound by the standard of proof beyond reasonable doubt when making findings that could influence the severity of the sentence. The sentence imposed on the appellant was upheld, and no further orders were made.

Orders