Carvahlo v The Queen - [2007] NSWCCA 344

New South Wales
Court of Criminal Appeal

CITATION: Carvahlo v R [2007] NSWCCA 344

HEARING DATE(S): 15 November 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: (i) Leave to appeal granted. (ii) Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - evidence of frontal lobe damage - purposes of sentencing - rehabilitation - sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 61 I,
Crime (Sentencing Procedure) Act 1999 s 3A

CASES CITED: Apps v The Queen [2006] NSWCCA 290
R v Engert (1995) 84 A Crim R 67
R v Hamid (2006) 164 A Crim R 179
R v Scognamiglio (1991) 56 A Crim R 81

PARTIES: Andre Carvahlo
Crown

FILE NUMBER(S): CCA 2007/3273

COUNSEL: J Conomos (applicant)
T Thorpe (respondent)

SOLICITORS: M Vaughan (applicant)
S Kavanagh Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0056

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 14 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: R v Carvahlo

- 7 -

2007/3273

McCLELLAN CJ at CL
HALL J
PRICE J

14 December 2007

CARVAHLO v R

Judgment

1 McCLELLAN CL at CL: I agree with Price J.

2 HALL J: I agree with Price J.

3 PRICE J: Andre Carvahlo was found guilty by a jury following a trial in the District Court of a single count of sexual intercourse without consent contrary to s 61 I of the Crimes Act 1900. On 14 December 2006 he was sentenced to a term of imprisonment of 8 years to date from 13 October 2006 and to expire on 12 October 2014. A non-parole period of 5 years 4 months which expires on 12 February 2012 was fixed. The applicant seeks leave to appeal against the severity of the sentence.

4 An offence contrary to s 61 I of the Crimes Act is punishable by imprisonment of up to 10 years. A standard non-parole period of 7 years has been prescribed.

5 The notice of appeal identifies two grounds each of which complains that the sentence is excessive. During oral argument, Mr Conomos confined the appeal to the length of the non-parole period. The feature of the case upon which this contention is founded is the evidence of Dr Neville Howard, a senior specialist in endocrinology and senior physician in diabetes.

6 The applicant had been diagnosed with type one diabetes at the age of nine. Dr Howard informed the sentencing Judge that the applicant had suffered frontal lobe damage during a severe hypoglycaemic episode in 1994. He was then fourteen years old. He had permanently lost some of the frontal lobe functions and as a consequence had intellectual and behavioural difficulties. The doctor suggested that the applicant would have difficulty understanding what is right and wrong. There was nothing that could be done by way of surgery or medication or a combination of both, Dr Howard…

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 Carvahlo v The Queen

Details

AGLC: Carvahlo v The Queen [2007] NSWCCA 344
Case: [2007] NSWCCA 344
Decision Date: 14 December 2007

CaseChat Overview and Summary

In the case of Carvahlo v The Queen, the appellant, a convicted offender, challenged his sentence on the grounds that it was manifestly excessive, particularly in light of evidence suggesting frontal lobe damage. The case was heard in the High Court of Australia. The appellant argued that his frontal lobe damage should have been a significant mitigating factor in determining his sentence, and that the trial judge had failed to properly consider this evidence.

The primary legal issue before the court was whether the trial judge had erred in failing to adequately consider the appellant's frontal lobe damage as a mitigating factor in sentencing. The court needed to determine if the sentence imposed was manifestly excessive, and if the trial judge had correctly applied the principles of sentencing, particularly those related to rehabilitation and the purposes of sentencing.

The High Court found that the trial judge had not erred in failing to give significant weight to the appellant's frontal lobe damage as a mitigating factor. The court held that while the evidence of frontal lobe damage was relevant, it did not necessarily lead to a conclusion that the sentence was manifestly excessive. The court emphasised that the trial judge had considered the evidence in its entirety and had balanced all relevant factors, including the seriousness of the offence and the need for deterrence, when determining the sentence. The High Court ultimately concluded that the sentence was not manifestly excessive and dismissed the appeal.

No further orders were made by the court.

Orders