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Court of Criminal Appeal 24 March 2017

Kaveh v R

[2017] NSWCCA 52

Drugs
CRIME APPEAL SENTENCING NO RELEVANT ERROR IDENTIFIED CRIME APPEAL SENTENCING

Citation: Kaveh v R [2017] NSWCCA 52
Court: Court of Criminal Appeal, New South Wales
Date: 24 March 2017
Judge(s): Basten JA; Latham J; Campbell J

Background

The appellant pleaded guilty to importing a marketable quantity of a border controlled drug (opium) into Australia, contrary to s 307.2(1) of the Criminal Code 1995 (Cth). The charge carries a maximum penalty of 25 years imprisonment. When arrested at an Australian airport, he was found carrying approximately 4,762 grams of opium in heat-sealed packets in his carry-on luggage.

The sentencing judge in the District Court imposed a total sentence of five years, six months and 18 days, with a non-parole period of four years. At the sentencing hearing, evidence was tendered regarding the appellant's mental health history, including hospital admissions for adjustment disorder, opioid dependence, and a psychologist's assessment diagnosing PTSD linked to a shooting in 2011. Evidence was also presented regarding the probable hardship his imprisonment would cause to his wife and young child.

The appellant sought leave to appeal against sentence on two grounds: that the sentencing judge failed to accord sufficient weight to his mental health issues, and that she failed to apply any weight to the probable hardship his imprisonment would cause his family.

  • Whether the sentencing judge erred by failing to give sufficient weight to the appellant's mental health conditions, including PTSD, as a mitigating factor in sentencing.
  • Whether the sentencing judge erred by failing to apply any weight to the probable hardship experienced by the appellant's family under s 16A(2)(p) of the Crimes Act 1914 (Cth).
  • Whether the "exceptional hardship" threshold, developed under general law principles, applies to the consideration of family hardship when sentencing for a federal offence under s 16A.

Decision

On the first ground, the Court found no error in the sentencing judge's treatment of the mental health evidence. The sentencing judge had carefully considered the psychological report and the hospital discharge summaries. Critically, the appellant's own legal representative at the sentencing hearing had effectively conceded that the 2010 PTSD diagnosis warranted little weight, directing attention instead to the psychologist's more recent assessment. No error of the kind required by House v The King (1936) 55 CLR 499 was established.

On the second ground, the Court rejected the factual premise of the appeal. The sentencing judge had expressly acknowledged the adverse effect imprisonment would have on the appellant's family and took that hardship into account as part of his subjective case. Her Honour simply concluded it did not warrant a substantial reduction or elimination of the sentence.

A subsidiary issue arose concerning whether the "exceptional hardship" threshold applies when a court considers family hardship under s 16A(2)(p) of the Crimes Act 1914 (Cth). The Court noted that this remains a live question. At the hearing below, the appellant's legal representative had conceded the hardship did not reach an "exceptional" level, and on appeal counsel maintained the same concession. The Court also noted that the majority in Elshani v R [2015] NSWCCA 254 had held that intermediate appellate authority had entrenched the exceptional hardship requirement, while a dissenting view (endorsed obiter in DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42) held that the statute on its terms imposes no such qualification. The Court did not need to resolve the conflict in order to dispose of the appeal.

Because no error of principle was identified in either ground, the Court unanimously refused leave to appeal.

Orders Made

• Application for leave to appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's treatment of mental health evidence where the judge carefully engaged with the psychological material and the appellant's own counsel at the hearing had significantly narrowed the weight attributed to parts of that evidence.
  • A sentencing court's acknowledgment that family hardship exists, combined with a finding that it does not warrant a substantial reduction in sentence, does not constitute a failure to give weight to that hardship. The two assessments are distinct.
  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), a court sentencing for a federal offence must consider the probable effect of a sentence on the offender's family or dependants, but whether this consideration requires the hardship to meet an "exceptional" threshold remains unresolved at the level of the New South Wales Court of Criminal Appeal.
  • In dismissing both grounds, the Court confirmed that appellants must demonstrate an error of principle of the kind identified in House v The King before an appellate court will intervene in the exercise of sentencing discretion.
  • Concessions made by the appellant's legal representatives at the original sentencing hearing carried significant weight on appeal, constraining the scope of arguments that could be advanced before the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)(p)
- Criminal Code 1995 (Cth), s 307.2(1)

Cases
- House v The King (1936) 55 CLR 499
- Elshani v R [2015] NSWCCA 254
- Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
- R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265
- R v X [2004] NSWCCA 93
- R v Girard [2004] NSWCCA 170
- R v Nguyen [2006] NSWCCA 369
- Benetiz v R [2006] NSWCCA 21
- Jones v R [2009] NSWCCA 169
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- Lam v R [2015] NSWCCA 143
- Wright v R [2016] NSWCCA 122
- WW v R [2012] NSWCCA 165
- R v Baker [2000] NSWCCA 85
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328