Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Calason v R [2023] NSWCCA 209 Hearing dates: 24 July 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Before: Harrison J at [1];
Wilson J at [2];
N Adams J at [3].Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIME – sentence appeal – whether sentencing judge erred in excluding the applicant’s disadvantaged childhood as a consideration mitigating the sentence or justifying leniency – no submission inviting the sentencing judge to make a finding that the applicant’s moral culpability was reduced because of his childhood adversity – those matters can be taken into account in instinctive synthesis rather than reduced moral culpability – no error – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth), s 16BA
Criminal Code Act 1995 (Cth), ss 307.2(1), 11.1(1), 11.2A(1)
Cases Cited: Bargashoun v R [2023] NSWCCA 17
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Nasrallah v R [2021] NSWCCA 207
R v Fernando (1992) 76 A Crim R 58
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Category: Principal judgment Parties: Hakan Calason (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
T Woods (Applicant)
L Fernandez (Respondent)
Kiki Kyriacou Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2021/00163982 Publication restriction: Nil. Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 28 October 2022
- Before:
- Fitzsimmons SC DCJ
- File Number(s):
- 2021/163982
JUDGMENT
-
HARRISON J: I agree with N Adams J and the orders proposed by her Honour.
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WILSON J: I have had the benefit of reading the judgment of N Adams J in draft, and agree with the orders proposed by her Honour, for the reasons that she has given. Despite its character as an appeal against sentence, this application can be readily characterised as an “armchair appeal”, as that phrase was used in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170]. It not only sought to advance a case not put at first instance but, further, raised an argument that is contrary to sentencing law, and common sense. It is devoid of merit. Notwithstanding that, the community’s interest in achieving finality makes it appropriate to grant leave to appeal: Gould v R [2023] NSWCCA 103. As N Adams J has concluded, the appeal should be dismissed.
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N ADAMS J: The applicant, Hakan Calason, seeks leave to appeal against the aggregate sentence imposed on him by Fitzsimmons SC DCJ on 28 October 2022…
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- AGLC
- Calason v The King [2023] NSWCCA 209
- Case
- [2023] NSWCCA 209
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge had erred in excluding the applicant's disadvantaged childhood as a mitigating factor in sentencing. The applicant contended that the judge should have considered his childhood adversity when determining the sentence. The court considered whether the judge should have made a finding that the applicant's moral culpability was reduced because of his childhood adversity. The court held that those matters could be taken into account in the instinctive synthesis rather than reduced moral culpability.
The court found that the applicant had not made any submission inviting the sentencing judge to make a finding that the applicant's moral culpability was reduced because of his childhood adversity. The court held that those matters could be taken into account in the instinctive synthesis rather than reduced moral culpability. The court held that the sentencing judge had not erred in excluding the applicant's disadvantaged childhood as a consideration mitigating the sentence or justifying leniency. The court held that there was no error in the sentencing process, and the appeal was dismissed.
No further orders were made by the court. The applicant's appeal against his sentence was dismissed, and the original sentence stood. The court held that the sentencing judge had not erred in excluding the applicant's disadvantaged childhood as a mitigating factor in sentencing, and that those matters could be taken into account in the instinctive synthesis rather than reduced moral culpability.
Orders
Orders of the court
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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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