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R v Taheri

R v Taheri

Case [2017] SASCFC 115 8 September 2017

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TAHERI
[2017] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
8 September 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - OTHER TYPES OF ORDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence of imprisonment of five years with a non-parole period of two years imposed for one count of aggravated serious criminal trespass in a place of residence, two counts of aggravated threatening harm and one count of aggravated threatening life. The offences were committed against the former wife of the appellant and her sister. The appellant came to Australia from Iran as a refugee in 2011 and is resident in Australia as the holder of a visa.
The appellant relies on a number of grounds of appeal. The appellant contends that: (1) the Judge, when declining to make a home detention order pursuant to section 33BB of the Criminal Law (Sentencing) Act 1988, erred in failing to make a finding as to the risk, if any, that the appellant posed to community safety; (2) the Judge erred in her treatment of a written reference provided on behalf of the appellant; (3) the Judge should have ordered full or nearly full concurrency as between the sentences for counts 1 to 3 and count 4; (4) the Judge failed to have regard to the risk of deportation in the event that a sentence of imprisonment longer than 12 months were to be imposed.
Held per Nicholson J (Kourakis CJ and Peek J agreeing), dismissing the appeal:
1. Section 33BB does not require a sentencing judge to make a specific finding as to the nature or level of risk to the safety of the community that a particular offender might represent. What section 33BB(3) requires is that when determining whether to make a home detention order, a paramount consideration of the court must be the safety of the community.
2. There was no material error in the approach adopted by the Judge as to section 33BB and the discretion not to make a home detention order was within the discretion available.
3. It was open to the Judge to arrive at the view she took with respect to the written reference and to discount the reference accordingly.
4. The amount of concurrency ordered by the Judge was within the available discretion.
5. On the assumption that the risk of deportation, and the hardship that such a prospect would visit on both the appellant and his parents, were considerations relevant to the sentencing considerations in section 10(1) of the Criminal Law (Sentencing) Act 1988, the sentencing Judge took into account these matters.
Criminal Law Consolidation Act 1935 s 19, s 170; Criminal Law (Sentencing) Act 1988

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.

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Details

AGLC: R v Taheri [2017] SASCFC 115
Case: [2017] SASCFC 115
Decision Date: 8 September 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Mr Taheri, by a judge of the District Court of South Australia. The dispute arose from the appellant's contention that the sentencing judge had failed to adequately consider the prospect of his deportation as a relevant factor in determining an appropriate sentence.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in her discretion by not giving sufficient weight to the appellant's personal circumstances, specifically the real prospect of deportation and the hardship this would cause to him and his parents. The court was required to determine if this omission constituted an error of outcome in the sentencing process.

The Full Court reasoned that the sentencing judge had indeed taken into account the prospect of deportation as a personal circumstance relevant to her sentencing discretion. The court held that any disagreement about the weight afforded to this consideration, or what other judges might have done, was irrelevant unless an error of outcome could be demonstrated. Applying the principles of sentencing under the *Sentencing Act*, the court found that the risk of deportation was a legally available consideration under sections 10(1)(j), (l), (n), and (o) and that the sentencing judge had regard to it.

Consequently, the Full Court concluded that none of the grounds of appeal had been established. Permission to appeal was granted on one specific ground (1(f)), but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ (dissent) NICHOLSON J (dissent)

As I have indicated, I am satisfied that her Honour did take into account as a personal circumstance relevant to her Honour’s sentencing discretion the real prospect of deportation and the hardship that such a prospect would visit on both the appellant and his parents. Any concern that her Honour placed insufficient weight on this consideration or that other judges would have placed greater weight on this consideration is not to the point in the absence of the assertion of an outcome error. On the assumption that risk of deportation was a consideration relevant to the sentencing considerations in section 10(1)(j), (l), (n) and (o) of the Sentencing Act and available, as a matter of law, to be deployed in this way, I am satisfied that her Honour had regard to it.Conclusion In my view, none of the grounds of appeal have been established and I would grant permission on ground 1(f) but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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Citations

R v Taheri [2017] SASCFC 115

Most Recent Citation

R v Hevko [2018] SASCFC 22

Cases Citing This Decision

Kroni v The Queen [2021] SASCFC 15
Citation 1

…5) 256 CLR 47; R v Kroni [2019] SADC 46; Liberato v The Queen (1985) 159 CLR 507; R v Shresthra (1991) 173 CLR 48; R v Taheri [2017] SASCFC 115; R v Zhang (2017) 265 A Crim R 113, discussed. ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407; Ali v The Queen [2014] NSWCCA 45; Amaca Pty Ltd v W…
R v Arrowsmith [2018] SASCFC 47
Citation 2 (Para 2)

…noted the conflicting approaches but found that it was unnecessary to resolve the question as the appeal could be decided on other grounds.[16] [15] [2017] SASCFC 115. [16] Ibid at [42].…
R v Hibeljic [2018] SASCFC 35
Citation 3 (Para 32)

…t [23]-[28]; R v Dell (2016) 126 SASR 571 at [40]-[60]; R v Hosking (2017) 128 SASR 37 at [6]-[9]; R v Best [2017] SASCFC 55 at [44]-[53], R v Taheri [2017] SASCFC 115 at [24]; R v Hevko [2018] SASCFC 22.…
R v Hevko [2018] SASCFC 22
Citation 4 (Para 18)

…J agreed) and at [51]-[63] (Blue J), R v Best [2017] SASCFC 55 at [44]-[53] (Stanley J with whose reasons Parker and Lovell JJ agreed) and R v Taheri [2017] SASCFC 115 at [24] (Nicholson J with whose reasons Kourakis CJ and Peek J agreed). [8] [2017] SASCFC 50; (2017) 128 SASR 37 at [54]-[63]. The court only conside…

See all citing cases →

Cases Cited

R v Taheri [2017] SASCFC 92
Citation 1 (Para 3)

…avated threatening harm (counts 2 and 4);[3] and aggravated threatening life (count 3).[4] [1] An appeal against conviction was dismissed, R v Taheri [2017] SASCFC 92. [2] Contrary to section 170 of the Criminal Law Consolidation Act 1935 , the maximum penalty for which is imprisonment for life. [3] Contrary to sec…
R v Leka [2017] SASCFC 77
Citation 2 (Para 21)

…far as the law in this State is concerned. The conflicting approaches according to the authorities have recently been examined in R v Leka .[18] [18] [2017] SASCFC 77 at [21]-[29] (Stanley J with whose reasons Peek and Hinton JJ agreed). See also R v Zhang [2017] SASCFC 5 and the observation by Stanley J in Leka ,…
R v Hosking [2017] SASCFC 50
Citation 3 (Para 4)

…t was not appropriate. [9] [2016] SASCFC 156; (2016) 126 SASR 571 at [47], [50]. [10] [2016] SASCFC 148; (2016) 126 SASR 464 at [23]-[28]. [11] [2017] SASCFC 50 at [6]-[9].…
R v Zhang [2017] SASCFC 5
Citation 4 (Para 21)

…ently been examined in R v Leka .[18] [18] [2017] SASCFC 77 at [21]-[29] (Stanley J with whose reasons Peek and Hinton JJ agreed). See also R v Zhang [2017] SASCFC 5 and the observation by Stanley J in Leka , that Zhang may have been decided per incuriam with respect to the earlier decision in R v Berlinsky [2005]…
R v Dell [2016] SASCFC 156
Citation 5 (Para 4)

…the Judge not having expressed a conclusion about the appellant’s suitability for home detention, having found that it was not appropriate. [9] [2016] SASCFC 156; (2016) 126 SASR 571 at [47], [50]. [10] [2016] SASCFC 148; (2016) 126 SASR 464 at [23]-[28]. [11] [2017] SASCFC 50 at [6]-[9].…
R v Filipponi [2016] SASCFC 148
Citation 6 (Para 4)

…ideration of section 33BB, Vanstone J (with whose reasons Parker J agreed) in R v Hosking ,[11] summarised the position in this way. In R v Filipponi [2016] SASCFC 148 the Chief Justice (with whose reasons Justice Nicholson and I agreed) discussed the structure of Part 3 Division 3A of the Act and the circumstances…
R v Wheeler [2015] SASCFC 83
Citation 7 (Para 13)

…entence should have been passed. In such a case, it will dismiss the appeal. (footnotes omitted) [6] [1936] HCA 40; (1936) 55 CLR 499 at 504-505. [7] [2015] SASCFC 83 at [20].…
R v Lutze [2014] SASCFC 134
Citation 8 (Para 14)

…High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] set out above. [8] [2014] SASCFC 134; (2014) 121 SASR 144 at [47]. Grounds 1(a) and (e)…
R v Berlinsky [2005] SASC 316
Citation 9 (Para 21)

…SCFC 5 and the observation by Stanley J in Leka , that Zhang may have been decided per incuriam with respect to the earlier decision in R v Berlinsky [2005] SASC 316.…
House v R [1936] HCA 40
Citation 10 (Para 13)

…error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. (footnotes omitted) [6] [1936] HCA 40; (1936) 55 CLR 499 at 504-505. [7] [2015] SASCFC 83 at [20].…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 10
2 mentions (from Para 5)
Criminal Law Consolidation Act 1935 (SA) 19
2 mentions (from Para 3)
Migration Act 1958 (Cth) 501
2 mentions (from Para 18)