R v Basacar - [2006] QCA 352

SUPREME COURT OF QUEENSLAND

CITATION:

R v Basacar [2006] QCA 352

PARTIES:

R
v
BASACAR, Fahri
(applicant)

FILE NO/S:

CA No 76 of 2006
DC No 3000 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2006

JUDGES:

Jerrard and Holmes JJA and Mullins J
Separate reasons for judgment of each member of the Court, Holmes JA and Mullins J agreeing as to the order made, Jerrard JA dissenting

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – applicant was convicted after a trial of two counts of rape and was sentenced to eight years’ imprisonment – applicant was also convicted of entering premises with an intent to commit an indictable offence – stealth rape – applicant appealed against sentence imposed in respect of the rape counts and contended that a sentence of six to eight years’ imprisonment was more appropriate – no violence – no prior convictions – no remorse – whether the sentencing discretion miscarried

R v Press [1997] QCA 7; CA No 489 of 1996, 14 February 1997, considered
R v Q [2003] QCA 421; CA No 78 of 2003, 26 September 2003, considered
R v Raymond [1994] QCA 441; CA No 299 of 1994, 12 September 1994, considered
R v SAS [2005] QCA 442; CA No 217 of 2005, 2 December 2005, cited
R v Stirling [1996] QCA 342; CA No 205 of 1996, 17 September 1996, cited
R v Williams [2002] QCA 211; CA No 361 of 2001, 21 June 2002, considered

COUNSEL:

A J Glynn SC for the applicant
R G Martin SC for the respondent

SOLICITORS:

H Drakos & Company for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: In this application I have read the reasons for judgment of Mullins J, with whom Holmes JA agrees. I consider that the eight year head sentence was high, since the applicant did not use any weapon nor threaten physical injury to the victim. The sentence accordingly appears a severe one when contrasted with those described in R v SAS [2005] QCA 442.[1] It appears high when compared to that imposed in R v Stirling [1996] QCA 342.[2] I consider the sentence therefore exceeds what was proper, and would have allowed the application, and substituted instead a sentence of seven years imprisonment.
[1]CA No 217 of 2005, 2 December 2005.
[2]CA No 205 of 1996, 17 September 1996.

HOLMES JA: I have read the reasons for judgment of Mullins J and gratefully adopt her Honour’s setting out of the background facts. I agree with her Honour that, as a general proposition, sentences for…

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 Basacar

Details

AGLC: R v Basacar [2006] QCA 352
Case: [2006] QCA 352
Decision Date: 15 September 2006

CaseChat Overview and Summary

In the case of R v Basacar, the applicant, who had been convicted of two counts of rape and one count of entering premises with intent to commit an indictable offence, appealed against the sentence imposed by the lower court. The applicant was sentenced to eight years’ imprisonment, and the appeal specifically targeted the sentence imposed for the rape counts. The applicant argued that a sentence of six to eight years’ imprisonment was more appropriate, considering factors such as the absence of violence, the lack of prior convictions, and the absence of remorse.

The legal issues before the court involved whether the sentencing discretion had miscarried. The applicant contended that the sentence imposed was excessive and that a lesser sentence would be more appropriate given the circumstances of the case. The court was required to determine whether the sentence was manifestly inadequate or excessive and whether there was a miscarriage of the sentencing discretion.

The court found that the sentence imposed was within the range of appropriate sentences for the offences committed. It noted that the applicant had committed serious offences involving sexual violence, which warranted a significant term of imprisonment. The court also highlighted the absence of remorse and the lack of any mitigating factors. In light of these considerations, the court concluded that there was no miscarriage of the sentencing discretion and that the sentence imposed was appropriate. Consequently, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Basacar [2006] QCA 352
PARTIES:	R v BASACAR, Fahri (applicant)
FILE NO/S:	CA No 76 of 2006 DC No 3000 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2006
JUDGES:	Jerrard and Holmes JJA and Mullins J Separate reasons for judgment of each member of the Court, Holmes JA and Mullins J agreeing as to the order made, Jerrard JA dissenting
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – SEXUAL OFFENCES – applicant was convicted after a trial of two counts of rape and was sentenced to eight years’ imprisonment – applicant was also convicted of entering premises with an intent to commit an indictable offence – stealth rape – applicant appealed against sentence imposed in respect of the rape counts and contended that a sentence of six to eight years’ imprisonment was more appropriate – no violence – no prior convictions – no remorse – whether the sentencing discretion miscarried R v Press [1997] QCA 7; CA No 489 of 1996, 14 February 1997, considered R v Q [2003] QCA 421; CA No 78 of 2003, 26 September 2003, considered R v Raymond [1994] QCA 441; CA No 299 of 1994, 12 September 1994, considered R v SAS [2005] QCA 442; CA No 217 of 2005, 2 December 2005, cited R v Stirling [1996] QCA 342; CA No 205 of 1996, 17 September 1996, cited R v Williams [2002] QCA 211; CA No 361 of 2001, 21 June 2002, considered
COUNSEL:	A J Glynn SC for the applicant R G Martin SC for the respondent
SOLICITORS:	H Drakos & Company for the applicant Director of Public Prosecutions (Queensland) for the respondent