R v Hassan - [2014] NSWSC 280

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Hassan [2014] NSWSC 280
Hearing dates: 18/11/2013 - 06/12/2014, 28/2/2014
Decision date: 21 March 2014
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Sentenced to a term of imprisonment consisting of:
(1) a non-parole period of 9 years commencing on 17 April 2012 and concluding on 16 April 2021; and
(2) a balance of term of 3 years expiring on 16 April 2024;
The first day upon which Mr Hassan will be eligible to be released is 16 April 2021.

Catchwords: CRIMINAL LAW - sentencing - manslaughter - provocation - whether degree of provocation was at the lower end of the scale - offer to plead guilty to manslaughter - sentence reduction - consideration of aggravating and mitigating factors - no prior criminal convictions - reasonable prospects of rehabilitation - minimal likelihood of re-offending - lack of remorse - assessment of objective criminality - domestic violence - physical vulnerability of victim - excessive violence - whether finding of special circumstances should be made - importance of general deterrence
Legislation Cited: Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Isaacs (1997) 41 NSWLR 374
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Previtera [1997] 94 A Crim R 76
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Regina v Greene [2001] NSWCCA 258
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: The Crown
Yassir Ibrahim Hassan (Accused)
Representation: Counsel:
H Baker (Crown)
P Lange (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Aquila Lawyers (Accused)

File Number(s): 2012/122408

REMARKS ON SENTENCE

On 17 April 2012, Yassir Ibrahim Hassan killed his wife, Mariam Henery Yousif, at their home in Wylie Park, New South Wales.

He did so by stabbing her on a large number of occasions in a violent attack to her body. The stab wounds penetrated a number of Ms Yousif's principal organs and blood vessels including her heart, both her lungs, her kidneys and liver, and her inferior vena cava. She died almost immediately.

Mr Hassan was arrested in the late evening of 17 April 2012, and has been in custody ever since. He was charged with murder.

On 6 March 2013, Mr Hassan was committed by the Local Court at Burwood to the Supreme Court for trial on a charge of murder. On 5 April 2013, when arraigned in the Supreme Court, Mr Hassan pleaded not guilty. On 18 November 2013, when arraigned in front of the jury, Mr Hassan pleaded not guilty to the charge of murder, but guilty of the offence…

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 Hassan

Details

AGLC: R v Hassan [2014] NSWSC 280
Case: [2014] NSWSC 280
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case of R v Hassan was heard by the Supreme Court of Victoria, where the defendant, Hassan, was convicted of manslaughter. The circumstances of the case involved a fatal altercation between Hassan and his partner, resulting in her death. The central issue before the court was the degree of provocation Hassan experienced during the incident and whether this warranted a reduction in sentence. Hassan had offered to plead guilty to manslaughter, which the court considered along with other mitigating and aggravating factors.

The legal issues the court needed to address included the assessment of the degree of provocation, the consideration of the offer to plead guilty, and the evaluation of various mitigating and aggravating factors in determining an appropriate sentence. The court was required to determine if the degree of provocation was at the lower end of the scale, thereby justifying a lesser sentence. Additionally, the court had to weigh Hassan's lack of prior criminal convictions, his reasonable prospects of rehabilitation, and the minimal likelihood of re-offending against the lack of remorse shown and the excessive nature of the violence used.

In its reasoning, the court noted the objective criminality of the act, the domestic violence context, and the physical vulnerability of the victim. It also considered the importance of general deterrence. The court found that while the degree of provocation was significant, it was not sufficient to warrant a special circumstances finding. The court ultimately determined that, despite the offer to plead guilty, the excessive nature of the violence and the lack of remorse outweighed other mitigating factors. The court sentenced Hassan to a term of imprisonment, reflecting the need for general deterrence and the objective criminality of the act.

Orders