R v Hasnan - [2016] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hasnan [2016] QCA 281

PARTIES:

R
v
HASNAN, Haslinawatti Binti
(applicant)

FILE NO/S:

CA No 165 of 2016
SC No 49 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 May 2016

DELIVERED ON:

4 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2016

JUDGES:

Morrison and Philippides and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application to adduce further evidence is allowed in part.

2. The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, by her own plea of guilty, of one count of importing a commercial quantity of a border controlled drug – where the applicant was sentenced to eight years and six months imprisonment with the non-parole period fixed at five years – where the applicant contended that the non-parole period was excessive – where the applicant’s counsel at sentence had accepted that the sentence was appropriate – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant sought to rely on further evidence of her father’s medical condition, her divorce and family circumstances and her conduct in prison – where the respondent submitted that the further evidence was not substantially different from that presented to the sentencing judge and, even if admitted, did not demonstrate that the sentence was manifestly excessive – whether leave should be granted to adduce the further evidence

Criminal Code (Qld), s 668E(3)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v AAV [2014 QCA 343, cited
R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280, considered
R v Calis[2013] QCA 165, cited
R v Flew[2008] QCA 290, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited
R v Jimson[2009] QCA 183, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Stokes[2016] QCA 157, cited
R v Tout[2012] QCA 296, cited
R v Wu, unreported, Supreme Court of Queensland, Ann Lyons J, SC No 323 of 2014, 2 September 2014, considered

COUNSEL:

The applicant appeared on her own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

MORRISON JA: I have read the draft reasons of Philippides and Philip McMurdo JJA. I agree with each set of reasons, and the orders proposed.
PHILIPPIDES JA: The applicant was convicted on 11 November 2015, by her own plea of guilty,…

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 Hasnan

Details

AGLC: R v Hasnan [2016] QCA 281
Case: [2016] QCA 281
Decision Date: 4 November 2016

CaseChat Overview and Summary

In the matter of R v Hasnan, the applicant appealed against the sentence imposed following her conviction for importing a commercial quantity of a border controlled drug. The applicant had pleaded guilty and was sentenced to eight years and six months imprisonment with a non-parole period of five years. She contended that the non-parole period was excessive. The applicant's counsel at the time of sentencing had accepted the appropriateness of the sentence. The appeal raised two primary issues: firstly, whether the non-parole period was manifestly excessive, and secondly, whether the court should admit further evidence concerning the applicant's father's deteriorating health, her divorce and family circumstances, and her conduct in prison, in order to reconsider the sentence.

The court addressed the first issue by examining whether the sentence was manifestly excessive. The applicant argued that the non-parole period was excessive, but the court considered that the original sentence, while severe, was not so disproportionate to the offence as to warrant interference. The court noted that the applicant's counsel at the time of sentencing had found the sentence appropriate. Additionally, the court found that the matters raised by the applicant did not sufficiently demonstrate that the sentence was manifestly excessive. Regarding the second issue, the court determined that the further evidence, while partially new, did not significantly differ from what was already presented to the sentencing judge. The court concluded that even if the additional evidence were considered, it would not demonstrate that the sentence was manifestly excessive.

The court denied the application for leave to appeal against the sentence. However, the court allowed the application to adduce further evidence in part, permitting the applicant to present certain aspects of her father's medical condition and her conduct in prison. The court made no further orders regarding the sentence.

Orders

Orders of the court

1. The application to adduce further evidence is allowed in part.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant also sought to add a second ground of appeal that her sentence should be reconsidered due to certain matters in mitigation not being known to the learned sentencing judge. It is convenient to deal with that matter first.Ground 2 – reconsideration of the sentence due to further material The respondent did not object to the applicant being given leave to amend her notice of appeal to add ground 2. The applicant also required leave to adduce further evidence as to the second ground. The second ground, as outlined in the applicant’s outline, relied on three matters by way of further evidence:·Firstly, “at the time of sentencing the Judge did not know that the applicant’s father is terminal from severe heart condition”;·Secondly, that the applicant’s ex-husband had “been able to use the fact that the applicant [was] in prison to obtain a divorce, to his advantage” and had “absconded with their youngest daughter of 15 year [of age] to another country”; and·Thirdly, the applicant “has been a model prisoner”, and her time in prison has been rendered more difficult than for other prisoners due to language and cultural barriers and her separation from family. The applicant gave some further evidence orally as to these matters at the hearing before this court. She said her father’s condition had worsened. The actual divorce appears to have been finalised after the sentencing. The further evidence relied upon by the applicant appears to have raised a combination of matters, some of which had occurred since the sentencing. It is clear that evidence concerning each of the three matters raised was before the sentencing judge, even if not precisely in the same terms. It was apparent from the psychologist’s report that the applicant’s father had “a cardiac history and [had] had a pacemaker fitted.” While the applicant’s evidence was that his condition had worsened, that was not inconsistent with the picture presented at sentence. As to the second matter raised, the psychologist’s report went into some detail in relation to the applicant’s personal circumstances, including a first marriage that ended in divorce. The unhappy state of the applicant’s second marriage was also recorded, along with the fact that the husband had effectively deserted her and lived in Singapore. It seems that the divorce from the applicant’s second husband occurred after the sentencing hearing but, in any event, it does not significantly add to the evidence before the sentencing judge as to the applicant’s personal circumstances. As to the position of the applicant’s parents and their ability to care for the applicant’s daughters, the report noted that although the writer had not asked specifically, he inferred that “her parents would be unable to keep up mortgage repayments [on the applicant’s house] and care for her daughters”. The report also recorded that the applicant was separated from her family and missed her children. It also outlined that she had used her time in prison very effectively, through improving her English, learning sewing skills and working as a workshop leader.

CITATION:	R v Hasnan [2016] QCA 281
PARTIES:	R v HASNAN, Haslinawatti Binti (applicant)
FILE NO/S:	CA No 165 of 2016 SC No 49 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 20 May 2016
DELIVERED ON:	4 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2016
JUDGES:	Morrison and Philippides and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application to adduce further evidence is allowed in part. 2. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, by her own plea of guilty, of one count of importing a commercial quantity of a border controlled drug – where the applicant was sentenced to eight years and six months imprisonment with the non-parole period fixed at five years – where the applicant contended that the non-parole period was excessive – where the applicant’s counsel at sentence had accepted that the sentence was appropriate – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE – where the applicant sought to rely on further evidence of her father’s medical condition, her divorce and family circumstances and her conduct in prison – where the respondent submitted that the further evidence was not substantially different from that presented to the sentencing judge and, even if admitted, did not demonstrate that the sentence was manifestly excessive – whether leave should be granted to adduce the further evidence Criminal Code (Qld), s 668E(3) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v AAV [2014 QCA 343, cited R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280, considered R v Calis[2013] QCA 165, cited R v Flew[2008] QCA 290, cited R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, cited R v Jimson[2009] QCA 183, considered R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Stokes[2016] QCA 157, cited R v Tout[2012] QCA 296, cited R v Wu, unreported, Supreme Court of Queensland, Ann Lyons J, SC No 323 of 2014, 2 September 2014, considered
COUNSEL:	The applicant appeared on her own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Commonwealth) for the respondent