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Kahler v R (Cth)

Kahler v R (Cth)

Case [2021] NSWCCA 40 18 March 2021

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kahler v R (Cth) [2021] NSWCCA 40
Hearing dates: 23 November 2020
Decision date: 18 March 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [66];
Wright J at [67]
Decision:
(1) Leave to allow an extension of time within which to seek leave to appeal against sentence is refused.
(2) An extension of time within which to bring an application for leave to appeal against sentence having been refused, the application for leave to appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – supply a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and import a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code (Cth) – pleas of guilty – sentence of 8 years and 9 months with a non-parole period of 6 years – whether sentencing judge took into account lack of prior relevant criminal antecedents and prior good character – whether the sentence imposed for the importation offence was manifestly excessive – grounds of appeal not made out – application for leave to appeal against sentence is dismissed.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Aslan v R [2014] NSWCCA 114
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
BG v R [2020] NSWCCA 295
Crump v R [2016] NSWCCA 2
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gwardys v R [2019] NSWCCA 62
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Klomfar v R [2019] NSWCCA 61
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Moodie v R [2020] NSWCCA 160
Mulato v Regina [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Carr (2002) 135 A Crim R 171; [2002] NSWCCA 434
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Smith v R [2020] NSWCCA 181
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Vandeventer v R [2013] NSWCCA 33
Wright v R [2019] NSWCCA 134

Category: Principal judgment
Parties: Tyren Andrew Kahler – Applicant
Regina (Cth) – Respondent Crown
Representation:
Counsel:
I McLachlan – Applicant
P McEniery – Respondent Crown
Solicitors:
Gregory Goold Solicitors – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2016/265370; 2017/185896
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

03 May 2019

Before:

Girdham SC DCJ

File Number(s):

2016/265370; 2017/185896

JUDGMENT

HOEBEN CJ at CL:

Offence and sentence

By notice of application for leave to appeal, filed 8…

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 Kahler v R (Cth)

Details

AGLC: Kahler v R (Cth) [2021] NSWCCA 40
Case: [2021] NSWCCA 40
Decision Date: 18 March 2021

CaseChat Overview and Summary

The appellant, Kahler, appealed against his sentence in the High Court of Australia. He was convicted of supplying a commercial quantity of a prohibited drug and importing a marketable quantity of a border controlled drug. The District Court of New South Wales imposed a sentence of 8 years and 9 months, with a non-parole period of 6 years. The appellant argued that the sentencing judge failed to take into account his lack of prior relevant criminal antecedents and prior good character. He also contended that the sentence imposed for the importation offence was manifestly excessive.

The High Court considered whether the sentencing judge had appropriately exercised his discretion in imposing the sentence. The Court examined the principles of sentencing and the relevant considerations that the sentencing judge should have taken into account. The Court held that the sentencing judge had considered the appellant's lack of prior criminal antecedents and good character in imposing the sentence. The Court also found that the sentence imposed for the importation offence was not manifestly excessive. The Court held that the appellant had failed to demonstrate that the sentence was unjust or disproportionate to the offences committed.

The High Court dismissed the appeal against sentence. The Court held that the appellant had not made out any of the grounds of appeal. The Court noted that the appellant had a significant criminal history, including previous convictions for drug offences. The Court found that the sentence imposed was appropriate and reflected the seriousness of the offences committed. The Court held that the appeal against sentence should be dismissed and that the appellant had not demonstrated that the sentence was manifestly excessive or unjust.

Orders