AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 3 October 2018

Hassan v R

[2018] NSWCCA 213

Homicide
CRIMINAL LAW SENTENCE

Citation: Hassan v R [2018] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 3 October 2018
Judge(s): Bathurst CJ at [1]; Johnson J at [287]; Price J at [288]

Background

The applicant was convicted by a jury in December 2013 of the manslaughter of his wife, following a trial in which he had been charged with murder. The jury returned a not-guilty verdict on murder and a guilty verdict on manslaughter. In March 2014, the sentencing judge imposed a term of 12 years' imprisonment with a non-parole period of 9 years.

At sentencing, the judge made what the parties on appeal called "the critical finding": that the applicant had returned home from work, engaged in verbal arguments with the deceased that left her upset and scared, and then attacked her with a knife while she was in bed after she said something that caused him to lose self-control. The deceased died from at least 14 stab wounds. The sentencing judge characterised the offence as resulting from "a low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack."

The applicant sought leave to appeal against the sentence on three grounds: that the sentencing judge failed to make the critical finding to the required standard of proof (beyond reasonable doubt), that the finding was not open to be made on the evidence at all, and that the sentence was manifestly excessive.

  • Whether the sentencing judge made the critical factual finding adverse to the applicant to the standard of beyond reasonable doubt, as required when making findings at sentence that are adverse to an offender
  • Whether it was open to the sentencing judge, on the evidence adduced at trial, to reach that finding beyond reasonable doubt
  • Whether the sentence of 12 years with a non-parole period of 9 years was manifestly excessive

Decision

On the standard of proof: The Court held that the sentencing judge did not err by failing to make the critical finding beyond reasonable doubt. Reading the sentencing judgment as a whole, the Court was satisfied that the critical finding was in fact made to that standard. The applicant's argument that the judge had applied the wrong or a lower standard was rejected.

On whether the finding was open: The Court found it was open to the sentencing judge to reach the critical finding beyond reasonable doubt. The judge was entitled to reject the version of events put forward by the applicant in light of the prosecution evidence led at trial. The prosecution's evidence, taken together, was sufficient to support the finding.

On manifest excess: The Court rejected the manifest excess ground. An applicant asserting manifest excess must demonstrate the sentence is "unreasonable or plainly unjust." The Court found that neither the sentencing statistics relied upon by the applicant nor the comparable cases he cited assisted that argument in the circumstances of this case. The Court noted that, on the sentencing judge's findings, the deceased was defenceless when subjected to a sustained and violent attack arising from only a "low level" verbal provocation.

The Court also observed that in domestic violence offences of this nature, general deterrence, community protection, and denunciation are important sentencing considerations, and that courts must make clear that such conduct will attract severe punishment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court must make findings of fact adverse to an offender to the standard of beyond reasonable doubt; the Court of Criminal Appeal confirmed that standard applied here and was satisfied it had been met when the sentencing judgment was read as a whole.
  • Where an applicant challenges whether an adverse factual finding was open to be made, it is sufficient that the sentencing judge was entitled to reject the offender's competing version in light of the prosecution evidence as a whole.
  • In dismissing the manifest excess ground, the Court reaffirmed that an appellant must show the sentence was "unreasonable or plainly unjust," and that sentencing tables and comparable cases cited in isolation may not suffice to discharge that burden where the individual circumstances are distinguishable.
  • The Court of Criminal Appeal expressly identified general deterrence, community protection, and denunciation as particularly important sentencing considerations in domestic violence homicide cases.
  • No error was established in any of the three grounds advanced, and the 12-year sentence with a 9-year non-parole period was upheld in its entirety.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Anderson v The Queen [2018] NSWCCA 49
- Biddle v The Queen [2017] NSWCCA 128
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Anderson [2016] NSWSC 399
- R v Greene [2001] NSWCCA 258
- R v Hassan [2014] NSWSC 280
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Storey [1998] 1 VR 359