R v Banda - [2021] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Banda [2021] QCA 171

PARTIES:

R
v
BANDA, Sathish
(applicant)

FILE NO/S:

CA No 63 of 2021
DC No 2309 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 19 March 2021 (Everson DCJ)

DELIVERED ON:

Date of Orders: 13 August 2021
Date of Publication of Reasons: 20 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2021

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDERS:

Orders delivered: 13 August 2021

1.   Grant application for leave to appeal against sentence.

2.   Allow the appeal.

3.   Vary the sentence on Count 1 to one of 12 months’ imprisonment, suspended after 6 months for a period of 2 years.

4.   Vary sentence on Count 2 to one of 18 months’ imprisonment, suspended after 6 months for a period of 2 years.

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 and one count of sexual assault – where the applicant had been drinking as a result of distressing personal circumstance – where the applicant had entered the complainant’s apartment by mistake – where the intent necessary for the burglary offence was formed almost simultaneously with the sexual offending – where the applicant was a non-citizen and potentially faced deportation under the Migration Act 1958 (Cth) – where the applicant was sentenced to three years’ imprisonment for the burglary and two years’ imprisonment for the sexual offending, to be served concurrently and suspended for three years after serving 12 months

R v Gesler[2016] QCA 311, considered

COUNSEL:

N S Sharma (sol) for the applicant
R A Swanwick for the respondent

SOLICITORS:

Sharma Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment given by McMurdo JA.
McMURDO JA: On 15 February 2021, the applicant pleaded guilty of an offence of burglary and an offence of committing a sexual assault, committed in the same incident in January 2020. On 19 March 2021 he was sentenced in the District Court to a term of imprisonment of three years for the burglary offence and two years for the sexual assault offence, to be served concurrently, and suspended for three years after serving 12 months. He applied for leave to appeal against his sentences on the grounds that they were manifestly excessive. At the conclusion of the hearing in this Court on 13 August 2021, the Court granted leave to appeal, allowed the appeal and reduced the sentences to concurrent terms of one year for the burglary and 18 months for the sexual assault, each to be suspended after six months for an operational period of two years. The following are the reasons why I joined in those orders being made.
The facts of the offences were set out in an…

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 Banda

Details

AGLC: R v Banda [2021] QCA 171
Case: [2021] QCA 171
Decision Date: 20 August 2021

CaseChat Overview and Summary

The applicant, Banda, appealed against his sentence following a guilty plea to one count of burglary and one count of sexual assault. The case was heard in the Court of Appeal, where the primary concern was the severity of the sentence imposed on the applicant. Banda's actions, which included entering the complainant's apartment by mistake while under the influence of alcohol due to distressing personal circumstances, and his potential deportation under the Migration Act 1958 (Cth), were central to the appeal. The legal issues that the court needed to address were whether the original sentence was manifestly excessive or inadequate and if there were grounds for interfering with the sentence.

The court considered various factors in its decision. It recognised that while the applicant's actions were unlawful, his distress and lack of intent to commit the offences played a significant role in his conduct. The court also noted the potential deportation consequences for Banda, which added to the severity of the sentence. The appeal court concluded that the original sentence was manifestly excessive, particularly given the applicant's remorse, lack of criminal history, and the mitigating circumstances surrounding the offences. Therefore, the court granted the application for leave to appeal against sentence and allowed the appeal, modifying the sentences accordingly.

In light of the court's findings, the sentence for the burglary was varied to 12 months' imprisonment, suspended after six months for a period of two years. For the sexual assault, the sentence was altered to 18 months' imprisonment, also suspended after six months for a period of two years. These orders reflect the court's consideration of the mitigating factors and the need for a sentence that was not excessively harsh. The appeal was successful in reducing the severity of the imposed penalties.

Orders

Orders of the court

Orders delivered: 13 August 2021

1. Grant application for leave to appeal against sentence.

2. Allow the appeal.

3. Vary the sentence on Count 1 to one of 12 months’ imprisonment, suspended after 6 months for a period of 2 years.

4. Vary sentence on Count 2 to one of 18 months’ imprisonment, suspended after 6 months for a period of 2 years.

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 Banda [2021] QCA 171
PARTIES:	R v BANDA, Sathish (applicant)
FILE NO/S:	CA No 63 of 2021 DC No 2309 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 19 March 2021 (Everson DCJ)
DELIVERED ON:	Date of Orders: 13 August 2021 Date of Publication of Reasons: 20 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2021
JUDGES:	Fraser and McMurdo and Mullins JJA
ORDERS:	Orders delivered: 13 August 2021 1. Grant application for leave to appeal against sentence. 2. Allow the appeal. 3. Vary the sentence on Count 1 to one of 12 months’ imprisonment, suspended after 6 months for a period of 2 years. 4. Vary sentence on Count 2 to one of 18 months’ imprisonment, suspended after 6 months for a period of 2 years.
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 and one count of sexual assault – where the applicant had been drinking as a result of distressing personal circumstance – where the applicant had entered the complainant’s apartment by mistake – where the intent necessary for the burglary offence was formed almost simultaneously with the sexual offending – where the applicant was a non-citizen and potentially faced deportation under the Migration Act 1958 (Cth) – where the applicant was sentenced to three years’ imprisonment for the burglary and two years’ imprisonment for the sexual offending, to be served concurrently and suspended for three years after serving 12 months R v Gesler[2016] QCA 311, considered
COUNSEL:	N S Sharma (sol) for the applicant R A Swanwick for the respondent
SOLICITORS:	Sharma Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent