Kazami v The King - [2023] VSCA 267

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0161

PAYAM KAZAMI	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF JUDGMENT:	2 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 267
JUDGMENT APPEALED FROM:	[2022] VCC 1154 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Intentionally cause serious injury – Intentionally cause injury – Reduced moral culpability due to mental illness – Whether Verdins principles properly taken into account – Prospects of rehabilitation – Whether sentence manifestly excessive – Whether fresh evidence concerning visa cancellation and deterioration of mental illness post-sentence should be admitted – Leave to appeal refused.

Crimes Act1958, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Sentencing Act 1991, Migration Act 1958.

R v Verdins (2007) 16 VR 269, Romero v The Queen (2011) 32 VR 486, R v Williscroft [1975] VR 292, Ryan v The Queen (2001) 206 CLR 267, WCB v The Queen (2010) 29 VR 483, R v W.E.F [1998] 2 VR 385, DaCosta v The Queen (2016) 258 A Crim R 60, Leimonitis v The Queen [2018] VSCA 198.

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Counsel
Applicant:	Ms K Farrell
Respondent:	Mr P Bourke KC
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA:

Introduction

On 29 November 2021, the applicant, now aged 52 years,[1] pleaded guilty to one charge of intentionally causing serious injury[2] and one charge of intentionally causing injury.[3] Following a plea in mitigation in the County Court on 18 March and 29 June 2022, the applicant was sentenced on 21 July 2022 as follows:[4]
[1]His date of birth is 20 December 1970.
[2]Contrary to s 16 of the Crimes Act1958.
[3]Contrary to s 18 of the Crimes Act1958.
[4]DPP v Kazami [2022] VCC 1154 (‘Reasons’).

Charge

Offence

Maximum

Sentence

Cumulation

1

Intentionally cause serious injury

20 years

5 years and 6 months

Base

2

Intentionally cause injury

10 years

2 years

6 months

Total Effective Sentence:

6 years imprisonment

Non-Parole Period:

4 years’ imprisonment

Section 6AAA Statement:

7 years’ imprisonment with a non-parole period of 4 years and 9 months

Other relevant orders:

Disposal order

The applicant seeks leave to appeal against sentence on the following grounds:
1. The Learned Sentencing Judge erred as he failed to properly take into account the application of the Verdins[5] principles.
2.The Learned Sentencing Judge erred as he failed to take into account the Applicant’s prospects of rehabilitation.
3.The sentences imposed on charges (1) and (2), the total effective sentence of imprisonment and non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances.
4.Fresh evidence demonstrates that the sentence of imprisonment imposed on the Applicant will weigh more heavily upon him than it would on a person in normal health.[6]
5.Fresh evidence demonstrates that there has been a substantial…

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 Kazami v The King

Details

AGLC: Kazami v The King [2023] VSCA 267
Case: [2023] VSCA 267
Decision Date: 2 November 2023

CaseChat Overview and Summary

Kazami appealed against his sentence for intentionally causing serious injury and intentionally causing injury to another person. The Court of Appeal considered whether the trial judge properly applied the principles of Verdins, took into account his reduced moral culpability due to mental illness, and whether the sentence was manifestly excessive. The appeal also questioned whether fresh evidence concerning visa cancellation and the deterioration of the appellant's mental illness post-sentence should be admitted. The Court of Appeal ultimately found that the trial judge had correctly applied the Verdins principles and considered the appellant's prospects of rehabilitation. The sentence was deemed not to be manifestly excessive, and the fresh evidence was found not to warrant a departure from the original sentence.

The primary legal issues before the court were whether the trial judge had appropriately considered the principles of Verdins and the appellant's reduced moral culpability due to mental illness, and whether the sentence imposed was manifestly excessive. The court also needed to decide if the fresh evidence concerning the appellant's visa cancellation and subsequent deterioration of his mental illness should be admitted. The court examined the principles set out in Verdins and other relevant cases to determine if the trial judge had correctly applied them in sentencing the appellant. The court found that the trial judge had appropriately considered the Verdins principles and the appellant's prospects of rehabilitation, and that the sentence was not manifestly excessive. The court further held that the fresh evidence did not warrant a departure from the original sentence.

In its judgment, the Court of Appeal considered the principles of Verdins and the need to consider the appellant's reduced moral culpability due to mental illness. The court found that the trial judge had properly applied the principles of Verdins and considered the appellant's prospects of rehabilitation. The court held that the sentence was not manifestly excessive, and that the fresh evidence did not warrant a departure from the original sentence. The Court of Appeal found that the trial judge had given due consideration to the appellant's mental illness and prospects of rehabilitation, and that the sentence was appropriate in the circumstances. The court ultimately found that the appeal was without merit and refused leave to appeal.

The Court of Appeal refused leave to appeal and dismissed the appeal. The original sentence of the appellant was upheld, and no further orders were made.

Orders