Hasan v The Queen

(2010) 31 VR 28; [2010] VSCA 352

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Rape
4. › Manifest excess
5. › Consideration of applicable sentencing range
6. › Victim asleep
7. › Penile unprotected rape
8. › Whether rape sentence manifestly excessive
9. › Sentencing Act 1991 (Vic), s 5(2)
1. Criminal Law
2. › Sentence
3. › Sentencing principles
4. › Relevance of intoxication of offender
5. › Whether intoxication a mitigating factor
6. › Limited scope of 'out of character' exception
7. › Onus on offender to establish exception
1. Criminal Law
2. › Sentence
3. › Consistency in sentencing
4. › Use of comparable cases and sentencing statistics
5. › Identification of appropriate sentencing range
6. › Role of instinctive synthesis
7. › Sentencing discretion
8. › Sentencing Act 1991 (Vic), s 5(2)(b)
1. Criminal Law
2. › Sentence
3. › Double punishment
4. › Whether sentencing judge took into account failure to answer bail when sentencing for substantive offence
5. › Separate criminal acts warranting separate punishment

Quick Take

Intoxication is not ordinarily a mitigating factor in sentencing, and the 'out of character' exception requires quite exceptional circumstances with the onus on the offender to establish it. Consistency in sentencing is achieved by placement within the correct range identified through comparable cases and instinctive synthesis, not by matching individual cases. The Court signalled that current sentencing practices for rape may require upward review.