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Korovou v The Queen

Korovou v The Queen

Case [2021] NSWCCA 28 5 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Korovou v R [2021] NSWCCA 28
Hearing dates: 25 November 2020
Date of orders: 05 March 2021
Decision date: 05 March 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [2];
Wright J at [3]
Decision:
(1) The applicant has leave to appeal.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal against sentence – Whether sentencing judge failed to consider the applicant’s diagnosis of PTSD according to sentencing principles – Where no psychiatric evidence as to the applicant’s mental condition and no evidence of causal connection with offending – Whether sentencing judge failed to give adequate reasons as to consideration of the applicant’s PTSD – Departure on appeal from case put at first instance – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Barbieri v R [2016] NSWCCA 295
Griffin v R [2018] NSWCCA 259
Harkin v R [2020] NSWCCA 242
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Lambkin v R [2020] NSWCCA 327
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
OGC v R [2016] NSWCCA 254
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Category: Principal judgment
Parties: Pita Korovou (Applicant)
Regina (Crown)
Representation:
Counsel:
S Lawrence with L Opper (Applicant)
G Newtown (Crown)
Solicitors:
Inner West Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/67102
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

3 April 2020

Before:

Noman SC DCJ

File Number(s):

2019/67102

Judgment

HOEBEN CJ at CL: I agree with Wright J and the orders he proposes.
BELLEW J: I agree with Wright J.
WRIGHT J: The applicant, Mr Pita Korovou, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on him by Noman SC DCJ on 3 April 2020 in the District Court at Sydney.

Background

The applicant was arrested on 28 February 2019 and was charged with a number of offences relating to conduct that occurred on 20 February 2019.
On 5 November 2019 at Central Local Court, the applicant pleaded guilty to one charge of detaining in company with intent to obtain advantage occasioning actual bodily harm and one charge of detaining in company with intent to obtain advantage. He was committed to the District Court for sentence. The applicant also asked that an offence of robbery armed with an offensive weapon be taken into account on a Form 1 under the procedure in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).
The sentence hearing took place before Noman SC DCJ on 3 April 2020, on which occasion the learned sentencing judge dealt with both the applicant and his co-offender. At the end of the hearing, her Honour…

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 Korovou v The Queen

Details

AGLC: Korovou v The Queen [2021] NSWCCA 28
Case: [2021] NSWCCA 28
Decision Date: 05 March 2021

CaseChat Overview and Summary

The case of Korovou v The Queen involved the applicant appealing against his sentence, arguing that the sentencing judge did not appropriately consider his diagnosis of Post Traumatic Stress Disorder (PTSD) in line with sentencing principles. The applicant claimed that the sentencing judge failed to acknowledge his PTSD, which was not supported by psychiatric evidence, and there was no evidence establishing a causal link between his PTSD and the offending behaviour. The applicant also argued that the sentencing judge did not provide adequate reasons for not considering his PTSD. The appeal was heard in the High Court of Australia.

The central legal issues the court had to address were whether the sentencing judge erred by not considering the applicant's PTSD, and whether there was an absence of adequate reasons provided by the sentencing judge regarding the applicant's PTSD. Furthermore, the court needed to determine if there was a departure on appeal from the case presented at the first instance, and whether the appeal should be dismissed.

The High Court found that the sentencing judge did not make an error by not considering the applicant's PTSD as there was no psychiatric evidence provided to support the diagnosis. Additionally, there was no evidence that linked the PTSD to the offending behaviour. The court held that the sentencing judge's reasons were sufficient and did not need to be more detailed. The Court concluded that there was no departure on appeal from the case presented at the first instance. As a result, the appeal was dismissed.

No specific final orders were mentioned in the text. However, it is customary for the court to dismiss the appeal and affirm the original sentence imposed by the sentencing judge.

Orders