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Calason v The King

Calason v The King

Case [2023] NSWCCA 209 23 August 2023

Sentencing

Mens Rea & Intention

Criminal Law

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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
DR v R [2022] NSWCCA 151
Dungay v R [2020] NSWCCA 209
Hoskins v R [2021] NSWCCA 169
Lloyd v R [2022] NSWCCA 18
MH v R [2022] NSWCCA 287
Nasrallah v R [2021] NSWCCA 207
Newman v R [2021] NSWCCA 101
R v Fernando (1992) 76 A Crim R 58
R v Millwood [2012] NSWCCA 2
R v Calason [2022] NSWDC 544
Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
Gould v R [2023] NSWCCA 103

Category: Principal judgment
Parties: Hakan Calason (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Woods (Applicant)
L Fernandez (Respondent)
Solicitors:
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:

[2022] NSWDC 544

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.
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.
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…

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 Calason v The King

Details

AGLC: Calason v The King [2023] NSWCCA 209
Case: [2023] NSWCCA 209
Decision Date: 23 August 2023

CaseChat Overview and Summary

In the case of Calason v The King, the applicant sought leave to appeal against his sentence on the basis that the sentencing judge had erred in excluding the applicant's disadvantaged childhood as a mitigating factor. The applicant argued that the judge should have taken his childhood adversity into account when determining the sentence. The appeal was heard in the High Court of Australia, which granted leave to appeal but ultimately dismissed the appeal.

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