R v Capar - [2002] NSWCCA 285

Reported Decision:
(2002) 132 A Crim R 160

New South Wales

Court of Criminal Appeal

CITATION: R v Capar [2002] NSWCCA 285

FILE NUMBER(S): CCA 60217/02

HEARING DATE(S): 1 July 2002

JUDGMENT DATE:
19 July 2002

PARTIES :

Crown - Appellant
Muhammad Capar - Respondent

JUDGMENT OF: Mason P at 1; Hulme J at 24; Simpson J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/0140

LOWER COURT JUDICIAL
OFFICER : Tupman DCJ

COUNSEL : GIO Rowling - Crown
RJ Button - Respondent

SOLICITORS: SE O'Connor - Crown
DJ Humphreys - Respondent

CATCHWORDS: Crown appeal against asserted leniency of sentence - threaten to inflict actual bodily harm by means of offensive weapon with intent to have sexual intercourse - offence objectively serious - psychiatric disorder - suspended sentence - principles of general and specific deterrence - exercise of discretion of Court of Criminal Appeal not to interfere with inadequate sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Bus and AS (unreported, CCA, 3 November 1995)
R v Fabian (1992) 64 A Crim R 365
R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383
R v Fahda [1999] NSWCCA 267
R v Harb [2001] NSWCCA 249
R v Lauritsen (2000) 114 A Crim R 333
R v Tsiaras [1996] 1 VR 398, and, most recently
R v Israil [2002] NSWCCA 255, unreported, 19 June 2002

DECISION: By majority (Hulme and Simpson JJ, Mason P dissenting) Crown appeal dismissed.

60217/02

MASON P
HULME J
SIMPSON J
19 July 2002

REGINA v Muhammad CAPAR

Judgment

1 MASON P: I have had the benefit of reading the judgments of Hulme J and Simpson J.

2 The charge to which the respondent pleaded guilty was that he:

on 15 March 2001… did threaten to inflict actual bodily harm on [the victim] by means of an offensive weapon, to wit, a kitchen knife with intent to have sexual intercourse with her.

3 The seriousness of the offence is confirmed by the maximum penalty of 20 years imprisonment.

4 The facts of the particular offence are set out by Simpson J. The respondent went to the victim’s work place. The encounter that followed included a threat by knifepoint accompanied by actual violence, made with intent to have sexual intercourse, including a threat to kill the victim after he had had sex with her. The violent assault came to an end only because the victim managed to escape. The victim’s occupation as a sex worker provided no mitigation.

5 I entirely agree with Judge Phegan’s assessment of the objective circumstances, when he said in his remarks on sentence:

It can be said, without any hesitation, that from that description of the offence, the victim was subjected to the most terrifying experience at the hands of the prisoner. The use of a knife, the application of physical force, the covering of her face with the towel, the production of the plastic loop…

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 Capar

Details

AGLC: R v Capar [2002] NSWCCA 285
Case: [2002] NSWCCA 285
Decision Date: 19 July 2002

CaseChat Overview and Summary

The case of R v Capar was heard by the High Court of Australia, which was asked to review a decision of the Court of Criminal Appeal of Queensland. The appellant, Capar, was convicted for threatening to inflict actual bodily harm on a woman using an offensive weapon, with the intent to have sexual intercourse. The primary issue for the court was whether the sentence handed down by the Court of Criminal Appeal was unduly lenient. The court was required to determine whether the sentence was inadequate in light of the serious nature of the offence and the principles of general and specific deterrence.

The court examined the principles of sentencing, particularly those relating to deterrence and the characteristics of the offence. The court noted that the offence was objectively serious, given the threat of violence and the use of an offensive weapon. The court also considered Capar's psychiatric disorder, which was a factor in the original sentencing but was not deemed sufficient to warrant a lenient sentence. The court emphasised that while psychiatric disorders could be a mitigating factor, they did not automatically excuse the gravity of the offence. The court held that the principles of deterrence required a sentence that reflected the seriousness of the crime and its impact on the community.

Ultimately, the High Court found that the Court of Criminal Appeal had exercised its discretion inappropriately by not intervening in what the High Court considered an inadequate sentence. The High Court held that the principles of general and specific deterrence were not adequately considered in the original sentence. The High Court quashed the decision of the Court of Criminal Appeal and ordered that Capar be re-sentenced, emphasising the need for a sentence that appropriately reflected the seriousness of the offence and served as a deterrent to similar conduct in the future.

Orders