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Kaveh v R

Kaveh v R

Case [2017] NSWCCA 52 24 March 2017

Appeal

Sentencing

Criminal Liability

Mental Health Considerations

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kaveh v R [2017] NSWCCA 52
Hearing dates: 13 March 2017
Decision date: 24 March 2017
Before: Basten JA at [1];
Latham J at [9];
Campbell J at [44]
Decision:
1. Refuse leave to appeal on Ground One.
2. Refuse leave to appeal on Ground Two.
3. Dismiss the application for leave to appeal.

Catchwords:
CRIME – appeal – sentencing – whether error of principle permitting appeal from the exercise of a discretionary power – failure to accord weight to mental health issues – mental health addressed for relevant purposes – no relevant error identified
CRIME – appeal – sentencing – hardship to members of offender’s family – whether – exceptional hardship required for purposes of s 16A(2)(p), Crimes Act 1914 (Cth) – whether sentencing court misapplied principle – hardship not excluded from consideration
Legislation Cited: Crimes Act 1914 (Cth), s 16A(2)(p)
Criminal Code 1995 (Cth), s 307.2(1)
Cases Cited: Benetiz v R [2006] NSWCCA 21
Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
Elshani v R [2015] NSWCCA 254
House v The King (1936) 55 CLR 499
Jones v R [2009] NSWCCA 169
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Lam v R [2015] NSWCCA 143
R v Baker [2000] NSWCCA 85
R v Fordham (1997) 98 A Crim R 359
R v Fordham (1997) 98 A Crim R 359
R v Girard [2004] NSWCCA 170
R v Goodwin (1990) 51 A Crim R 328
R v Nguyen [2006] NSWCCA 369
R v X [2004] NSWCCA 93
R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
Wright v R [2016] NSWCCA 122
WW v R [2012] NSWCCA 165
Category: Principal judgment
Parties: Mohammad Reza Kaveh (Applicant)
Regina (Respondent)
Representation:
Counsel:
N Parsons (Applicant)
G Wright (Respondent)
Solicitors:
Ren Zhou Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/217627
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

6 May 2016

Before:

Girdham DCJ

File Number(s):

2014/211627

Judgment

BASTEN JA: The first proposed ground for which leave to appeal was sought alleged that the sentencing judge erred by not “attaching” sufficient weight to “mental health issues” of the applicant. That ground recognised, correctly, that the sentencing judge (Girdham DCJ) paid careful attention to the evidence of the mental and physical health of the applicant. The applicant’s mental health was potentially relevant in that, (a) if it involved a condition which contributed to the offending, that might reduce the moral culpability of the offending; (b) it might reduce the importance of personal deterrence and might render the offender an inappropriate vehicle for maintaining general deterrence; and (c) such conditions as were on-going might cause the offender to suffer greater hardship in custody than would be the case for a person not suffering the same level of impairment of mental (or physical) health.
At the most…

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 Kaveh v R

Details

AGLC: Kaveh v R [2017] NSWCCA 52
Case: [2017] NSWCCA 52
Decision Date: 24 March 2017

CaseChat Overview and Summary

The appellant, Kaveh, was convicted of several drug-related offences and was subsequently sentenced by the Supreme Court of Queensland. Kaveh appealed against his sentence, arguing that the sentencing court had erred in failing to accord sufficient weight to his mental health issues and that the court misapplied the principle regarding the consideration of exceptional hardship to his family. The central legal issues were whether there was an error of principle in the sentencing court's failure to consider his mental health issues and whether the court misapplied the principle concerning exceptional hardship to his family.

The High Court considered whether the sentencing court's failure to adequately address the appellant's mental health issues constituted an error of principle. The court found that the sentencing judge had, in fact, addressed the appellant's mental health for the relevant purposes, and that no relevant error was identified in this regard. The court also examined whether the sentencing court had misapplied the principle regarding the consideration of exceptional hardship. The court concluded that the sentencing judge had correctly considered the principle and that the hardship to the appellant's family, while noted, was not sufficient to be classified as exceptional under the relevant statutory provision.

In light of the findings, the High Court dismissed the appeal. The court held that the sentencing judge had appropriately considered the appellant's mental health issues and that there was no error of principle in this respect. Furthermore, the court determined that the hardship to the appellant's family, although acknowledged, did not meet the threshold of "exceptional hardship" as required by the statutory provision. Therefore, the court found no grounds for the appeal to succeed.

Orders