R v Bahcehan - [2019] QCA 278

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bahcehan [2019] QCA 278

PARTIES:

R
v
BAHCEHAN, Kan
(applicant)

FILE NO/S:

CA No 46 of 2019
DC No 281 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh – Date of Sentence: 20 February 2019 (Chowdhury DCJ)

DELIVERED ON:

3 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2019

JUDGES:

Morrison JA and Mullins AJA and Henry J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty of eleven indictable offences and seven summary offences and sentenced for those offences – where the indictable offences committed by the applicant included: the dangerous operation of a vehicle; wounding; attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed; common assault; assault occasioning bodily harm while armed and possessing a dangerous drug – where the applicant was on parole pursuant to an existing sentence at the time of the offending – where the applicant sought leave to challenge the sentences imposed upon him on the ground that they were manifestly excessive – where the applicant submitted that there was a failure to take into account the totality principle, both in respect of the head sentence and in setting the parole eligibility date – whether there was a failure to take the totality principle into account – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 4, s 160C, s 160F

R v Herbert[2013] QCA 62, cited

COUNSEL:

A Loode for the applicant
C Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 10 August 2016 the applicant, then a disqualified driver, drove a car with false licence plates around Beenleigh. His journey lasted for more than 17 minutes which might not seem long, but in the course of it he: drove on the wrong side of the road; forced other cars to take evasive action; collided with two other cars; continued to drive when one wheel had lost its tyre and was resting on the metal rim; drove well in excess of the speed limit past a primary school; ran red lights, narrowly missing other cars; drove onto the wrong side of the road to overtake cars and trucks; stayed on the wrong side of the road while he approached a hill; nearly collided with a third car and was finally confronted by another driver when he got out of the car.
Once he got out the applicant ran away, pursued by the other driver. He was apprehended by that driver, in the course of which the applicant stabbed the driver with a knife, once on the right thumb and then in the left chest. The…

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 Bahcehan

Details

AGLC: R v Bahcehan [2019] QCA 278
Case: [2019] QCA 278
Decision Date: 3 December 2019

CaseChat Overview and Summary

The case of R v Bahcehan involved the appellant who was convicted of eleven indictable offences and seven summary offences. The appellant was sentenced to terms of imprisonment and fines, in addition to being placed on parole. The appellant sought leave to appeal against his sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to properly consider the totality principle, both in respect of the head sentence and in setting the parole eligibility date. The appeal was heard by the court which had to determine whether the appellant's submissions had merit and whether the sentence imposed was indeed manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate, and whether there was a failure to properly consider the totality principle. The appellant argued that the sentencing judge had not taken into account the totality principle in two respects: first, in respect of the head sentence, and second, in setting the parole eligibility date. The court needed to examine the totality principle, which requires that the overall punishment should not be disproportionate to the overall culpability of the offender. Additionally, the court had to consider whether the sentence imposed was manifestly excessive, which would warrant interference by the appellate court.

The court found that the appellant's submissions did not establish that the sentence imposed was manifestly excessive. The court considered the totality principle and noted that the sentencing judge had taken into account the totality of the appellant's offending, his criminal history, and his circumstances. The court found that the sentence imposed was proportionate to the appellant's overall culpability. The court also found that the parole eligibility date was appropriately set, taking into account the totality principle. Consequently, the court refused the appellant's application for leave to appeal against his sentence.

The court's decision in R v Bahcehan emphasises the importance of the totality principle in sentencing, and the need for the sentencing judge to consider the overall culpability of the offender. The court found that the sentencing judge had properly considered the totality principle in this case, and that the sentence imposed was proportionate to the appellant's offending. The court refused the appellant's application for leave to appeal against his sentence, and the appeal was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bahcehan [2019] QCA 278
PARTIES:	R v BAHCEHAN, Kan (applicant)
FILE NO/S:	CA No 46 of 2019 DC No 281 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh – Date of Sentence: 20 February 2019 (Chowdhury DCJ)
DELIVERED ON:	3 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2019
JUDGES:	Morrison JA and Mullins AJA and Henry J
ORDER:	Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty of eleven indictable offences and seven summary offences and sentenced for those offences – where the indictable offences committed by the applicant included: the dangerous operation of a vehicle; wounding; attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed; common assault; assault occasioning bodily harm while armed and possessing a dangerous drug – where the applicant was on parole pursuant to an existing sentence at the time of the offending – where the applicant sought leave to challenge the sentences imposed upon him on the ground that they were manifestly excessive – where the applicant submitted that there was a failure to take into account the totality principle, both in respect of the head sentence and in setting the parole eligibility date – whether there was a failure to take the totality principle into account – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 4, s 160C, s 160F R v Herbert[2013] QCA 62, cited
COUNSEL:	A Loode for the applicant C Cook for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent