R v Basawa - [2001] QCA 222

[2001] QCA 222

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 81 of 2001

THE QUEEN

NEIL ISHWAR BASAWA Appellant

BRISBANE

..DATE 05/06/2001

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to one count of armed robbery in the District Court at Southport on 20 March 2001. He was sentenced to three years imprisonment suspended after 12 months with an operational period of three years. A declaration was made as to the 130 days already spent in pre-sentence custody. The applicant claims that the sentence was manifestly excessive and that the primary Judge erred in not taking into account the rehabilitative factors in this case.

Whilst the offence of armed robbery is extremely serious this was one of the less serious examples of that type of offence. The female complainant was walking with another female and a two month old child in a stroller through the car park of a service station at Burleigh Heads at 7.50 p.m. She was carrying a six-pack of beer. The applicant approached her and asked her for a beer. The complainant politely refused his request and walked on. The applicant then approached the complainant from behind, produced a pocket knife which he held at waist level with the blade extended and demanded a beer. Understandably the complainant then gave him a bottle of beer. The applicant then left. The complainant contacted police who located the applicant shortly afterwards in a nearby garden bed with a half consumed bottle of beer and a pocket knife with a nine centimetre retractable blade.

The applicant told police he merely showed the complainant the hilt of the knife without pulling it out of his pocket but his counsel said he took the knife out of his pocket and held it at his side. It is not entirely clear whether or not the blade was extended. The learned sentencing Judge merely noted in his sentencing remarks, "You were in possession of a knife which you showed to the complainant" and it seems he was sentenced on that basis. In any case there is no suggestion that the applicant lunged at or threatened the victim with the knife beyond showing it to her.

Shortly before the offence he smoked some hashish and felt he was suffering a schizophrenic episode which he believed would be calmed by drinking beer.

The applicant was 23 at the time of the offence and 24 at sentence. He had a significant criminal history for drug- related offences, traffic offences and minor property offences for which he received initially community based orders including some involving drug testing and psychiatric, medical and psychological treatment. Before long his persistent offending resulted in short periods of imprisonment. Most significantly in September 1999 he was convicted in Victoria of the offence of robbery and sentenced to two months imprisonment suspended for 12 months, a sentence which suggests it too must have been a less serious example of that offence.

The applicant committed some further relatively minor offences…

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 Basawa

Details

AGLC: R v Basawa [2001] QCA 222
Case: [2001] QCA 222
Decision Date: 05/06/2001

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal against sentence in the case of the Queen versus Neil Ishwar Basawa. Basawa pleaded guilty to armed robbery in the District Court at Southport and was sentenced to three years imprisonment suspended after 12 months, with an operational period of three years. Basawa sought to appeal the sentence on the grounds that it was manifestly excessive and that the primary judge failed to take into account rehabilitative factors. The appeal was allowed and the sentence was substituted with a six-month imprisonment term followed by three years probation.

The legal issues the court had to decide included whether the sentence was manifestly excessive and whether the primary judge failed to take into account rehabilitative factors. The court considered the seriousness of the offence and the applicant's criminal history, including his drug-related offences, traffic offences, and minor property offences. The court also considered the mitigating factors in the applicant's favour, including the circumstances of the offence, his plea of guilty, cooperation with the authorities, and his youth.

The court found that the sentence was manifestly excessive and did not provide sufficient recognition to the important factor of rehabilitation. The court held that in the unique circumstances of this case, it would have been appropriate for the primary judge to impose either an Intensive Correction Order or a period of six months imprisonment followed by three years probation. The court substituted the sentence with six months imprisonment and three years probation on specific terms and conditions, including refraining from alcohol and illegal drugs, submitting to random drug testing, and attending a community health service regularly.

Orders