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Court of Criminal Appeal 12 June 2019

Mousavi v R

[2019] NSWCCA 121

Assault & violenceFirearms & weapons
SENTENCING APPEAL AGAINST SENTENCE FRESH OR NEW EVIDENCE NO MISCARRIAGE OF JUSTICE SENTENCING APPEAL AGAINST SENTENCE MULTIPLE OFFENCES

Citation: Mousavi v R [2019] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 12 June 2019
Judges: Johnson J, R A Hulme J, Wright J (judgment delivered by Wright J)

Background

The applicant pleaded guilty in the Local Court to two charges of attempted robbery while armed with a dangerous weapon (a replica firearm) and one charge of possessing a firearm in contravention of a firearms prohibition order. Both robbery offences occurred on the same day in Granville in September 2016. The first involved a 17-year-old victim whom the applicant followed and threatened by displaying the handle of the replica pistol. The second was significantly more serious: the applicant opened a 48-year-old victim's car door and pressed the replica firearm to the victim's temple while demanding money.

The applicant was committed for sentence to the District Court at Parramatta, where Bennett SC DCJ imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and six months. Indicative sentences were also recorded, as required by the Crimes (Sentencing Procedure) Act 1999 (NSW), for each individual offence. Each indicative sentence included a 25% discount for the early guilty pleas.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds, and also sought leave at the hearing to add a third ground. All three grounds were argued and determined.

  • Whether a miscarriage of justice arose from the absence of psychiatric evidence at the sentencing hearing, and whether fresh psychiatric and medical material should be admitted on appeal
  • Whether the indicative sentence for the first attempted robbery offence was manifestly excessive
  • Whether the sentencing judge failed to take into account the applicant's background of deprivation

Decision

Ground 1: Fresh psychiatric evidence and miscarriage of justice. The applicant sought to rely on an affidavit annexing Headspace records, Justice Health records, and a report from a forensic psychiatrist prepared after sentencing. The Court conditionally received this material before ruling on admissibility. Ultimately, the Court found no miscarriage of justice had occurred. The psychiatric material, even if admitted, did not establish that the sentencing proceedings were infected by any error arising from its absence.

Ground 2: Indicative sentence alleged to be manifestly excessive. The applicant challenged the indicative sentence for the first attempted robbery offence. The Court found this ground was misconceived. An indicative sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not itself a final sentence and is not separately appealable. The proper subject of challenge was the aggregate sentence. In any event, the Court concluded the aggregate sentence of six years was not manifestly excessive, having regard to the seriousness of all three offences (particularly the second robbery), the maximum penalties, the mitigating factors, and the guilty plea discounts. The aggregate sentence did not bespeak a misapplication of principle and was neither unreasonable nor plainly unjust.

Ground 3: Background of deprivation. Leave was granted to add this ground. The Court rejected it on the merits, finding that the sentencing judge had not failed to consider the applicant's background of deprivation. No error was established on this basis.

Orders Made

  • Leave granted to the applicant to read the affidavit of Paris Donnelly sworn 22 November 2018 for the purpose of considering ground 1
  • Leave granted to the applicant to amend the application for leave to appeal to include ground 3
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An indicative sentence recorded under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not a final sentence and cannot be separately appealed; the correct subject of a manifest excess challenge is the aggregate sentence itself.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that fresh psychiatric evidence introduced on appeal will not establish a miscarriage of justice unless the absence of that evidence at the sentencing hearing caused actual error or unfairness in the proceedings below.
  • Where a sentencing judge imposes an aggregate sentence, the appellate court assesses manifest excess by reference to all the circumstances of all offences together, including their relative seriousness, maximum penalties, and mitigating factors, rather than focusing on any single indicative term.
  • No error was established in the sentencing judge's treatment of the applicant's background of deprivation, confirming that appellate intervention requires a demonstrated failure to consider the relevant matter rather than a mere disagreement with its weight.
  • Receiving fresh evidence conditionally, pending a ruling on admissibility, is a well-established procedure in the Court of Criminal Appeal: see R v Bradley [2004] NSWCCA 88.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Firearms Act 1996 (NSW), ss 4D, 74(1)

Cases
- Baladjam v R [2018] NSWCCA 304
- Betts v The Queen (2016) 258 CLR 420
- Bugmy v Queen (2013) 249 CLR 571
- Dinsdale v The Queen (2000) 200 CLR 321
- El-Sayed v R [2018] NSWCCA 250
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- JM v R [2014] NSWCCA 297
- Khoury v R [2011] NSWCCA 118
- Lowndes v The Queen (1999) 195 CLR 665
- MM v R [2016] NSWCCA 235
- R v Ashton [2002] NSWCCA 498
- R v Bradley [2004] NSWCCA 88
- R v Harris [2011] NSWCCA 105
- R v Henry & Ors (1999) 46 NSWLR 346
- Ratten v The Queen (1974) 131 CLR 510
- Wong v The Queen (2001) 207 CLR 584
- Wright v R [2016] NSWCCA 122
- Zreika v R [2012] NSWCCA 44