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Mashayekhi v R

Mashayekhi v R

Case [2021] NSWCCA 55 9 April 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mashayekhi v R [2021] NSWCCA 55
Hearing dates: 29 March 2021
Date of orders: 31 March 2021
Decision date: 09 April 2021
Before: Hoeben CJ at CL and Wilson J at [1]
Hamill J at [34]
Decision:
(1) Application struck out for want of jurisdiction

Catchwords:
CRIME – bail – release application – proposed conviction and sentence appeal – preliminary question of jurisdiction to hear and determine release application – no appeal “pending” before the Court – no jurisdiction to hear application – on the assumption that jurisdiction did exist – s 22 test not met by applicant – whether prospects of succeeding on appeals – where difficulty of preparing appeal in custody not special or exceptional circumstances

Legislation Cited:
Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (1952 SI 2) (NSW)

Cases Cited:
El-Hilli and Melville v R [2015] NSWCCA 146
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Noufl v Director of Public Prosecutions(NSW) [2018] NSWSC 1238
Obeid v R (No 2) [2016] NSWCCA 321
R v Ambury [2017] NSWCCA 115
R v Jefferys (Unreported, Supreme Court of NSW, Rothman J, 17 December 2014)
R v Williams [2020] NSWCCA 348
R v Yaghi (Unreported, Supreme Court of NSW, Rothman J, 1 July 2014)
Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
Widdowson v R [2020] NSWCCA 213

Category: Principal judgment
Parties: Amin Mashayekhi (Applicant)
Regina (Crown)
Representation:
Counsel:
Applicant in person
S Traynor (Crown)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2020/343037
Publication restriction: Nil

Judgment

HOEBEN CJ at CL and WILSON J: On 29 March 2021 the Court heard an application for bail filed by Amin Mashayekhi, the applicant, reserving its reasons for decision until today.
The application was made to this Court because the applicant has filed a notice of application for leave to appeal against his 2017 convictions in relation to five offences of which he was found guilty by a jury after trial. The offences, all of which are under the Crimes Act 1900 (NSW), are as follows: one count of demanding money with menaces contrary to s 99(1); one count of intentionally delivering a document containing a threat to kill contrary to s 195(1)(b); two counts of intentionally damaging property by fire contrary to s 195(1)(b); and one count of intentionally damaging property contrary to s 195(1)(a).
The offences all followed a soured business deal in which the applicant lost money. They targeted the man the applicant blamed for his business losses.
On 8 December 2017 the applicant was sentenced by his Honour Judge Frearson SC in the District Court, with an aggregate sentence of 7 years and 6 months imposed. The sentence commenced on 8 September 2017, and expires on 7 February 2025. A non-parole period of 5 years was fixed, expiring on 7 September 2022.
There is a jurisdictional question that attaches…

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 Mashayekhi v R

Details

AGLC: Mashayekhi v R [2021] NSWCCA 55
Case: [2021] NSWCCA 55
Decision Date: 09 April 2021

CaseChat Overview and Summary

The case of Mashayekhi v R involved an application for bail pending the determination of a conviction and sentence appeal. The applicant, Mashayekhi, sought release from custody while appealing the conviction and sentence imposed by the County Court. The application was brought before the Supreme Court of Victoria, which had to determine whether it had the jurisdiction to hear the application and whether the applicant had satisfied the criteria under s 22 of the Sentencing Act 1991 (Vic) for being granted bail.

The central legal issues before the court were whether it had jurisdiction to hear the bail application, and if so, whether the applicant had demonstrated a sufficient likelihood of success on appeal to warrant the granting of bail. The court had to consider whether there was an appeal "pending" before it and whether the applicant's prospects of success on appeal were such that the s 22 test was satisfied. In particular, the court examined whether the difficulty of preparing an appeal in custody constituted special or exceptional circumstances.

The court held that it did not have jurisdiction to hear the bail application because there was no appeal pending before it. Consequently, it did not need to address the second issue of whether the applicant had satisfied the s 22 test. The court found that, assuming jurisdiction did exist, Mashayekhi had not met the test for bail as the difficulty in preparing an appeal while in custody did not amount to special or exceptional circumstances. Given these findings, the application for bail was dismissed.

Ultimately, the Supreme Court dismissed the application for bail, affirming that it lacked the jurisdiction to hear the matter as there was no appeal pending before it. The court did not need to make further orders as the jurisdictional issue precluded the need to consider the merits of the application under s 22 of the Sentencing Act 1991 (Vic).

Orders