R v Makary

Case [2018] QCA 258

SUPREME COURT OF QUEENSLAND

CITATION:

R v Makary [2018] QCA 258

PARTIES:

R
v
MAKARY, Ashraf Kamal
(appellant/applicant)

FILE NO/S:

CA No 257 of 2015
CA No 162 of 2016
DC No 1688 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 12 October 2015; Date of Sentence: 10 June 2016 (Richards DCJ)

DELIVERED ON:

9 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2017; 9 November 2017

JUDGES:

Sofronoff P and McMurdo JA and Bond J

ORDERS:

In Appeal No 257 of 2015:

Appeal dismissed.

In Appeal No 162 of 2016:

Leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of rape – where the appellant had sexual intercourse with the complainant at a time when she was highly intoxicated – where police found the complainant unconscious in the company of the appellant – where the Crown case was that the complainant lacked capacity to give her consent to sexual intercourse – where defence counsel at trial submitted that the jury should be directed to consider s 24 Criminal Code on the basis that there had been some misunderstanding in relation to a lack of consent between the appellant and complainant – where the appellant elected not to give evidence at trial and the element of belief therefore could only arise by way of inference – where the appellant relied on a number of facts that, it was submitted, could give rise to an inference that he held an honest and reasonable, but mistaken, belief that the complainant had given consent to sexual intercourse – whether an inference arose that the appellant believed that the complainant had given her consent to having sexual intercourse, such that the learned trial judge ought to have directed that s 24 Criminal Code be considered by the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the learned sentencing judge imposed a sentence of five years imprisonment to be served cumulatively upon sentences imposed on the applicant in respect of other sexual offences the subject of a separate trial and sentencing – where the result of this cumulative sentence is that the applicant will serve over 20 years in prison before becoming eligible for parole – where the applicant committed the offence of rape in the instant case while on bail for three similar offences, the subject of the separate trial and sentence, committed against three other victims – where the applicant lacked remorse and did not cooperate with authorities – where the applicant’s counsel at sentencing could not put forward a single mitigating factor – whether the cumulative sentence is manifestly excessive and a concurrent sentence should instead be imposed

Corrective Services Act 2006 (Qld), s 182(3)
Criminal Code (Qld), s 24,…

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AGLC
R v Makary [2018] QCA 258
Case
[2018] QCA 258
Decision Date

CaseChat Overview and Summary

The case of R v Makary involved an appeal by the appellant against his conviction for one count of rape and an application for leave to appeal against his sentence. The appellant had been found by the jury to have had sexual intercourse with the complainant when she was highly intoxicated and unconscious. The Crown case was that the complainant was incapable of giving her consent due to her state of intoxication. The appellant elected not to give evidence at trial and argued that the jury should have considered section 24 of the Criminal Code, which deals with the belief in consent, on the basis of an honest and reasonable mistake. The trial judge did not direct the jury to consider section 24.

The legal issues before the court included whether the trial judge should have directed the jury to consider section 24 of the Criminal Code. The court examined whether there was sufficient evidence to allow an inference that the appellant held an honest and reasonable, but mistaken, belief that the complainant had consented to sexual intercourse. The court also considered whether the cumulative sentence imposed by the sentencing judge was manifestly excessive or inadequate, given that the appellant was already serving sentences for other sexual offences and would serve over 20 years before becoming eligible for parole.

The court held that the trial judge did not err in failing to direct the jury to consider section 24 of the Criminal Code, as the evidence did not support an inference of an honest and reasonable mistake about the complainant's consent. The court found that the appellant’s actions, including engaging in sexual intercourse with an unconscious person, did not support such an inference. Regarding the sentence, the court concluded that the cumulative sentence was not manifestly excessive, given the appellant's history of similar offences, lack of remorse, and failure to cooperate with authorities.

In conclusion, the appeal against the conviction was dismissed, and leave to appeal against the sentence was refused. The cumulative sentence of five years imprisonment, to be served in addition to sentences from other trials, was upheld as appropriate.

Orders

Orders of the court

In Appeal No 257 of 2015:

Appeal dismissed.

In Appeal No 162 of 2016:

Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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