R v Hasan - [2004] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 216 of 2003

THE QUEEN

NIYAZI HASAN

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 137

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Criminal law - Sentence - Series of arsons committed by 53-year-old man of otherwise good character - Error in sentencing process conceded - Appellant re-sentenced to a term of 7 years, with non-parole period of 3½ years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Ekrem Avjioglu

WINNEKE, P.:

The appellant, Niyazi Hasan, was sentenced in the County Court in July of last year to a term of eight years' imprisonment after pleading guilty to a presentment which alleged five counts of arson and one count of burglary; offences alleged to have occurred over a period of 38 days in May and June 2002. The victim of each offence was a home building company called Domaine Homes. The sentencing judge ordered the appellant to serve a period of four years before becoming eligible for parole.

It is apparent from the material put before the sentencing judge that the case before him had some rather sad and unfortunate aspects to it. They were commented upon by the sentencing judge and were not the subject of any real dispute.

The appellant is a 53-year-old man of Cypriot origin, who, despite conceding two old convictions for minor offences, has led an honest and honourable life. He came with his parents to Australia when he was three years of age and schooled himself through to the stage where he was able to do an electrical apprenticeship. He became a proficient electrical mechanic, responsible for the maintenance and repair of sophisticated equipment at major general hospitals. He married in the 1970s and he and his wife had two children, a boy and a girl, whom they supported and reared through school to adulthood, and each of those children now has tertiary qualifications and current employment. It was in or about 1993 that "the wheels of his life began to fall off". He was retrenched from his employment of some 20 years at a major public hospital, and that, of course, had a profound impact upon him. After being unemployed for a short period of time, he purchased a take-away food business with his wife and the two of them worked long hours in that business at Greenvale. According to references that were provided to the judge, they were not only hard workers but were generous to customers and fellow shopkeepers and they developed for themselves a fine reputation amongst those who knew them. Unfortunately, by the end of 1999 or thereabouts, their custom had fallen away, the rents had risen and the business had become a burden. The long hours and difficulties with the business appear to have caused a strain on the…

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 Hasan

Details

AGLC: R v Hasan [2004] VSCA 137
Case: [2004] VSCA 137
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the matter of R v Hasan, the appellant, a 53-year-old man with a previously unblemished record, was convicted for a series of arson attacks. The crimes were perpetrated over a period of time, causing significant damage and posing a threat to public safety. The case was heard in the Supreme Court of Victoria, which had to determine an appropriate sentence for the appellant, considering his otherwise good character and the concession of an error in the initial sentencing process. The court's task was to balance the severity of the crimes with the appellant's background and the procedural error acknowledged during the appeal.

The primary legal issue before the court was whether the initial sentence, which did not adequately consider the procedural error, was commensurate with the nature and circumstances of the arson offences. The appellant's legal team argued that the initial sentence was excessive and failed to take into account the error in the sentencing process. They also highlighted the appellant's otherwise good character and lack of prior criminal history as mitigating factors. The prosecution, on the other hand, contended that the arsons warranted a significant custodial sentence to deter future offences and to protect the community.

The court found that the initial sentence was indeed affected by the procedural error and, therefore, did not accurately reflect the appropriate punishment for the crimes committed. After re-evaluating the facts and circumstances of the case, the court re-sentenced the appellant to a term of 7 years imprisonment, with a non-parole period of 3½ years. The court took into account the appellant's age, his otherwise good character, and the fact that the arsons were part of a series of offences, while also ensuring that the sentence served to adequately deter and protect the community from similar future crimes.

In light of the above, the court ordered that the appellant be re-sentenced to a term of 7 years imprisonment, with a non-parole period of 3½ years. The appellant's sentence was to commence from the date of his initial conviction, ensuring that he received appropriate credit for the time already spent in custody.

Orders