Kaveh v R [2017] NSWCCA 52

Kaveh v R [2017] NSWCCA 52

Leave to appeal was refused because the applicant did not identify any error of principle or House v The King discretionary error. The sentencing judge carefully considered the applicant's mental health, was entitled to reject or give little weight to the asserted PTSD diagnosis, and gave some weight to established mental health issues. The additional psychological material did not show hardship beyond that anticipated or any real bearing on the sentencing discretion. The sentencing judge also expressly considered the probable adverse effect of imprisonment on the applicant's family and was not required on the evidence to make a substantial reduction in sentence.

Jurisdiction
Australia
Judgment Date
24 March 2017
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Application From District Court of NSW Sentence Imposed on 6 May 2016
Outcome
Application for leave to appeal dismissed.
Legal Topics
['importing a Marketable Quantity of a Border Controlled Drug' 'mental Health in Sentencing' 'family Hardship in Sentencing' 'discretionary Sentencing Error' 'fresh Evidence on Sentence Appeal']
['criminal Law' 'sentencing' 'criminal Appeals'] ['importing a Marketable Quantity of a Border Controlled Drug' 'mental Health in Sentencing' 'family Hardship in Sentencing' 'discretionary Sentencing Error' 'fresh Evidence on Sentence Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal Application From District Court of NSW Sentence Imposed on 6 May 2016

Legal Issues

  1. 1 ["Whether the sentencing judge erred by not attaching sufficient weight to the applicant's mental health issues." 'Whether the applicant should be permitted to rely on additional material as fresh evidence to reformulate Ground One.' "Whether the sentencing judge erred by failing to give weight to probable hardship experienced by the applicant's family." 'Whether exceptional hardship was required or applied for the purposes of s 16A(2)(p) of the Crimes Act 1914 (Cth).']

Ratio Decidendi

Leave to appeal was refused because the applicant did not identify any error of principle or House v The King discretionary error. The sentencing judge carefully considered the applicant's mental health, was entitled to reject or give little weight to the asserted PTSD diagnosis, and gave some weight to established mental health issues. The additional psychological material did not show hardship beyond that anticipated or any real bearing on the sentencing discretion. The sentencing judge also expressly considered the probable adverse effect of imprisonment on the applicant's family and was not required on the evidence to make a substantial reduction in sentence.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Refuse leave to appeal on Ground One.' 'Refuse leave to appeal on Ground Two.' 'Dismiss the application for leave to appeal.']