R v Badaa - [2022] QCA 12

SUPREME COURT OF QUEENSLAND

CITATION:

R v Badaa [2022] QCA 12

PARTIES:

R
v
BADAA, Yunus
(applicant)

FILE NO/S:

CA No 192 of 2020
SC No 271 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 September 2020 (Boddice J)

DELIVERED ON:

11 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2021

JUDGES:

Sofronoff P and McMurdo JA and Mazza AJA.

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of burglary, one count of extortion with a circumstance of aggravation, two counts of common assault, one count of malicious act with intent, one count of burglary in the night in company, and one count of assault occasioning bodily harm while armed in company – where the applicant was sentenced to concurrent terms of imprisonment of eight years and six months’ imprisonment – where the applicant had a limited but serious criminal history – where the applicant had fragile mental health – where the applicant had a dysfunctional background – where the learned trial judge applied the global approach to sentencing – where the learned trial judge declined to set a parole eligibility date – whether declining to set a parole eligibility date made the sentence manifestly excessive

Corrective Services Act 2006 (Qld), s 184(2)

Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited
R v Bowditch [2014] QCA 157, cited
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, followed
R v Kruezi (2020) 6 QR 119; [2020] QCA 222, followed

COUNSEL:

L K Crowley QC for the applicant
C W Wallis for the respondent

SOLICITORS:

Dib & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Mazza AJA.
McMURDO JA: I agree with Mazza AJA.
MAZZA AJA: The applicant, Yunus Badaa, seeks leave to appeal against sentence.
The applicant was convicted on his pleas of guilty of one count of burglary (count 1), one count of extortion with a circumstance of aggravation (count 2), two counts of common assault (counts 3 and 4), one count of malicious act with intent (count 6),[1] one count of burglary in the night in company (count 7), and one count of assault occasioning bodily harm while armed in company (count 8). Counts 1 to 4 were committed on 4 December 2017 by the applicant alone. Counts 6 to 8 were committed by the applicant with a co-accused, Qazin Kruezi on 5 December 2017.
[1]Count 6 was pleaded in the indictment as an alternative offence to count 5, which was a charge of attempted murder. The plea of guilty to count 6 was accepted in full…

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 R v Badaa

Details

AGLC: R v Badaa [2022] QCA 12
Case: [2022] QCA 12
Decision Date: 11 February 2022

CaseChat Overview and Summary

The applicant, who had previously pleaded guilty to a range of offences, sought leave to appeal against the sentence imposed by the trial judge. The applicant was sentenced to concurrent terms of imprisonment of eight years and six months for the offences. The applicant had a limited but serious criminal history and a dysfunctional background, and suffered from fragile mental health. The trial judge applied the global approach to sentencing and did not set a parole eligibility date. The applicant argued that the failure to set a parole eligibility date made the sentence manifestly excessive.

The court had to determine whether the trial judge's decision not to set a parole eligibility date rendered the sentence manifestly excessive. The court noted that the trial judge had considered the mitigating factors and the applicant's overall criminality in deciding not to set a parole eligibility date. The court held that it was within the proper exercise of the trial judge's sentencing discretion not to set a parole eligibility date, and that the applicant would be eligible for release on parole after serving four years and three months of the sentence imposed. The court held that the failure to set a parole eligibility date did not make the sentence manifestly excessive.

The court refused the applicant's application for leave to appeal against the sentence. The court held that the ground of appeal had not been made out, as the failure to set a parole eligibility date did not render the sentence manifestly excessive. The court noted that the trial judge had considered all relevant factors in deciding not to set a parole eligibility date, and that the applicant would be eligible for release on parole after serving a significant portion of the sentence imposed.

Accordingly, the court refused the applicant's application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

For the reasons that follow, the application for leave to appeal should be refused.The facts The agreed facts[4] may be summarised as follows. At the time of the offending, the applicant was 25 years old.[4]Record Book (RB) 72 - 74. The complainants, MIH, KAL, BRS and ANC all lived together in a house in Kuraby. Both BRS and ANC were 17 years old. The applicant lived on the same street as the complainants. On 3 December 2017, some of the complainants spray painted various symbols and words on a white truck parked outside their house. Some time in the afternoon of 4 December 2017, the applicant, who knew MIH, KAL and ANC, walked into their home and then into MIH's bedroom. He threatened to kill MIH, yelling words to the effect of:I know it was you guys that spray painted the truck. I can't believe you would do this shit. I'm here to collect $2,000 and you're going to give it to me by Wednesday and if you don't I will shoot you in the knee cap. If you ring the police I will shoot you in the head and kill you. (Counts 1 and 2) KAL, BRS and ANC heard the applicant's threat. MIH and the applicant walked into the loungeroom where the applicant picked up a guitar and threatened to 'smack' MIH's head with it. A short time later, the applicant left the house. At around 4.45 pm on 4 December 2017, KAL, BRS and ANC cleaned the graffiti off the side of the truck using petrol and methylated spirits. As they finished, the applicant pulled up in his car and yelled, 'Stop cleaning it, stop cleaning it, you've got to pay the $2,000'. BRS twice asked the applicant if he knew the driver. The applicant's answer was not responsive to the question. The applicant said, 'Say it again and watch what happens'. The applicant then slapped BRS across the side of the face (count 3). ANC yelled out to the applicant, telling him, in effect, that BRS was a minor. A neighbour who witnessed the incident yelled out to the applicant to stop. The applicant then picked up a jerry can of petrol and said to KAL words to the effect of, 'Stop cleaning the car or I will burn you'. The applicant then poured petrol over KAL which covered him and got into his mouth. The applicant pointed a cigarette lighter at KAL (count 4). KAL then moved away from the applicant and went into the house. The following day, some of the complainants saw the truck owner and told him that they had cleaned the truck. The truck owner was a neighbour and did not know either the applicant or Mr Kruezi. At around 8.30 pm, the applicant went to the complainants' house. He called out to MIH and told him that he still owed him $2,000 despite the fact that the truck had been cleaned. MIH told the applicant, in effect, that everything had been sorted out with the owner of the truck who did not know who the applicant was. The applicant became angry and said, 'You better have my money'. MIH told the applicant that he could give him some money but not until he got paid and that it would not be $2,000. The applicant made a phone call and left.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was, in my opinion, well within the proper exercise of his Honour's sentencing discretion not to make a parole eligibility date, with the effect that, by operation of s 184(2) of the Corrective Services Act 2008 (Qld), the applicant is eligible for release on parole after serving four years and three months of the sentence that was imposed. The granting of parole eligibility before the expiry of half of the sentence was not required, having regard to the applicant's overall criminality and paying due regard to the mitigating factors.Conclusion and orders In my opinion the ground of appeal has not been made out. The order I would make is:1.Leave to appeal against sentence refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Badaa [2022] QCA 12
PARTIES:	R v BADAA, Yunus (applicant)
FILE NO/S:	CA No 192 of 2020 SC No 271 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 4 September 2020 (Boddice J)
DELIVERED ON:	11 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2021
JUDGES:	Sofronoff P and McMurdo JA and Mazza AJA.
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of burglary, one count of extortion with a circumstance of aggravation, two counts of common assault, one count of malicious act with intent, one count of burglary in the night in company, and one count of assault occasioning bodily harm while armed in company – where the applicant was sentenced to concurrent terms of imprisonment of eight years and six months’ imprisonment – where the applicant had a limited but serious criminal history – where the applicant had fragile mental health – where the applicant had a dysfunctional background – where the learned trial judge applied the global approach to sentencing – where the learned trial judge declined to set a parole eligibility date – whether declining to set a parole eligibility date made the sentence manifestly excessive Corrective Services Act 2006 (Qld), s 184(2) Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, cited R v Bowditch [2014] QCA 157, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, followed R v Kruezi (2020) 6 QR 119; [2020] QCA 222, followed
COUNSEL:	L K Crowley QC for the applicant C W Wallis for the respondent
SOLICITORS:	Dib & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent