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R v Bastan

R v Bastan

Case [2009] VSCA 157 26 June 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 502 of 2008
	v
HALIT BASTAN
	DIRECTOR OF PUBLIC PROSECUTIONS	No 521 of 2008
v
HALIT BASTAN

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JUDGES:	MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2009
DATE OF JUDGMENT:	26 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 157
JUDGMENT APPEALED FROM:	R v Bastan (Unreported, County Court of Victoria, Judge White, 20 December 2007)

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CRIMINAL LAW – Appeal – Conviction – Evidence of intervention order obtained by complainant – Threats to kill complainant – Whether relevant and admissible – Evidence of relationship between the parties – Whether propensity warning required – Verdict not unsafe or unsatisfactory.

CRIMINAL LAW – Sentencing – Crown appeal – Rape – Sentence of four years’ imprisonment with a minimum term of two years and three months manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Respondent/Appellant	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant/Respondent	Mr L C Carter with Ms G Morgan	Robert Stary & Assocs

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Buchanan JA and of Weinberg JA. For the reasons which their Honours give, I too would refuse the application for leave to appeal against conviction. For the reasons given by Buchanan JA, the Director’s appeal against sentence should be allowed and the applicant re-sentenced as his Honour proposes.

BUCHANAN JA:

After a trial in the County Court, the applicant was convicted on one count of rape and was sentenced to be imprisoned for a term of four years with a minimum term of two years and three months. He seeks leave to appeal against his conviction. The Director of Public Prosecutions has appealed against the sentence.

The principal witness in the trial was the complainant.

The complainant gave evidence that she married the applicant in Turkey on 30 April 2000. The complainant’s parents were Turkish. The complainant grew up in Australia. The marriage was arranged by the applicant’s aunt and the complainant’s parents. The complainant travelled to Turkey to meet the applicant two months before the wedding. Seven months after the wedding, the complainant returned to Australia. She was then pregnant. The applicant remained in Turkey until appropriate visa arrangements had been made and came to Australia six months after the birth of the couple’s son.

The complainant said that there were arguments and the applicant became aggressive. Six months after the applicant’s arrival in Australia, in about November or December 2002, the couple separated when the complainant went to a women’s refuge. They were divorced in 2004.

The complainant obtained an intervention order against the applicant after their separation. Proceedings in the Family Court resulted in the complainant having custody of the child and the applicant being granted rights of access. The

complainant and the applicant rarely spoke to each other as any conversation would result in argument. They did, however, send text messages to each other…

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 Bastan

Details

AGLC: R v Bastan [2009] VSCA 157
Case: [2009] VSCA 157
Decision Date: 26 June 2009

CaseChat Overview and Summary

The case of R v Bastan involved an appeal against a conviction and a subsequent appeal by the Crown against the sentence. The appellant, Bastan, was convicted of various offences, including rape and threats to kill. The appeal focused on the admissibility of certain evidence and the adequacy of the sentence imposed. The High Court of Australia was the court that heard the appeal.

The primary legal issues before the court were whether evidence of an intervention order obtained by the complainant was relevant and admissible, and whether a propensity warning was required regarding the evidence of the relationship between the parties. Additionally, the Crown appealed the sentence imposed on Bastan, arguing that it was manifestly inadequate. The court had to determine the relevance and admissibility of the evidence in question, as well as the proportionality of the sentence.

The High Court found that the evidence of the intervention order and the relationship between the parties was relevant and properly admitted. The court held that the evidence did not require a propensity warning, as it was directly related to the charges and did not suggest a predisposition to commit the offences. Regarding the sentence, the court agreed with the Crown that the original sentence of four years’ imprisonment with a minimum term of two years and three months was manifestly inadequate. The court emphasised the gravity of the offences and the need for a sentence that reflected the seriousness of the crimes committed.

In conclusion, the High Court upheld the conviction but allowed the Crown’s appeal in respect of the sentence. The court ordered that a new sentencing hearing be conducted to determine an appropriate sentence that reflected the severity of the offences.

Orders