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Mousavi v The Queen

Mousavi v The Queen

Case [2019] NSWCCA 121 12 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mousavi v R [2019] NSWCCA 121
Hearing dates: 17 April 2019
Date of orders: 12 June 2019
Decision date: 12 June 2019
Before: Johnson J, at [1]
R A Hulme J, at [2]
Wright J, at [3]
Decision:
(1)   Grant leave to the applicant to read the affidavit of Paris Donnelly sworn 22 November 2018 for the purpose of considering ground 1.

(2)   Grant leave to the applicant to amend the application for leave to appeal to include ground 3.

(3)   Grant leave to the applicant to appeal.
(4)   Dismiss the appeal.
Catchwords:
SENTENCING – appeal against sentence – fresh or new evidence – whether a miscarriage of justice resulted from the absence of psychiatric evidence in the sentencing proceedings – no miscarriage of justice

SENTENCING – appeal against sentence – multiple offences – attempt to rob whilst being armed with a replica firearm – whether indicative sentence manifestly excessive – ground misconceived – no appeal against indicative sentence – aggregate sentence not manifestly excessive
SENTENCING – appeal against sentence – whether sentencing judge failed to take into account applicant’s background of deprivation – no failure to consider applicant’s background – leave granted to amend the application for leave to appeal to include this ground – appeal on this ground rejected
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Baladjam v R [2018] NSWCCA 304
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 200 CLR 321; [2000] HCA 54
El-Sayed v R [2018] NSWCCA 250
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
MM v R [2016] NSWCCA 235
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Bradley [2004] NSWCCA 88
R v Harris [2011] NSWCCA 105
R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Josef Mioduszewski [2004] NSWCCA 154
R v NK (No 3) [2015] NSWSC 1257
Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Wright v R [2016] NSWCCA 122; (2016) 259 A Crim R 133
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Hasanein Mousavi (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms T Evers (Applicant)
Ms K Jeffreys (Respondent)
Solicitors:
Takchi & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/265766; 2016/00277138
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

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 Mousavi v The Queen

Details

AGLC: Mousavi v The Queen [2019] NSWCCA 121
Case: [2019] NSWCCA 121
Decision Date: 12 June 2019

CaseChat Overview and Summary

The case of Mousavi v The Queen involved the defendant appealing against his sentence. Mousavi was convicted of multiple offences, including an attempt to rob while being armed with a replica firearm. The appeal was heard by the court, which had to determine whether the sentence imposed was appropriate given the circumstances of the case.

The court considered several legal issues in the appeal. Firstly, it examined whether the absence of psychiatric evidence during the sentencing proceedings led to a miscarriage of justice. Secondly, it assessed whether the indicative sentence for the offences was manifestly excessive. Lastly, the court reviewed whether the sentencing judge failed to adequately consider Mousavi's background of deprivation.

The court found that there was no miscarriage of justice due to the absence of psychiatric evidence, as the overall circumstances of the case and the nature of the offences did not necessitate such evidence. Regarding the indicative sentence, the court determined that it was not manifestly excessive and that the appeal on this ground was misconceived. The court also found that the sentencing judge had not failed to consider Mousavi's background of deprivation, although leave was granted to amend the application for leave to appeal to include this ground. However, the appeal on this ground was ultimately rejected.

The final orders of the court upheld the sentence imposed on Mousavi, finding no grounds for a reduction in the penalty.

Orders