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Kassoua v R

Kassoua v R

Case [2017] NSWCCA 307 12 December 2017

Sentencing

Aggravated & Exemplary Damages

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kassoua v R [2017] NSWCCA 307
Hearing dates: 20 September 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Before: Basten JA at [1];
Walton J at [26];
Price J at [81]
Decision:
(1)   Extend time for the lodging of the application for leave to appeal to 3 July 2017.

(2)   Grant leave to appeal.
(3)   Dismiss the appeal.
Catchwords: CRIMINAL LAW – sentencing appeal – aggravating and mitigating features – whether aggravation regarding financial reward taken into account – relevance of standard non-parole period for admitted offence – top down approach – leave granted – appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, 32, 33
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A, 32, 33, 54B; Pt 4, Div 1A
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Eckersley v R [2013] NSWCCA 219
Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
Fayad v R [2017] NSWCCA 81
Hudson v R (2016) NSWCCA 278
MD v Regina [2006] NSWCCA 142
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Prculovski v R [2010] NSWCCA 274
R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63
R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152
R v King [2009] NSWCCA 117
R v Mills (2005) 154 A Crim R 40
R v Ronald King [2009] NSWCCA 117
R v Walker [2005] NSWCCA 109
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272
Wat v R [2017] NSWCCA 62
Category: Principal judgment
Parties: Alla Kassoua (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
D Kell SC with M Pulsford (Respondent)
Solicitors:
Alexanders Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/102788
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 October 2015

Before:

King SC DCJ

File Number(s):

2014/102788

Judgment

BASTEN JA: The applicant was sentenced on 9 October 2015 by Judge King SC in the District Court in respect of a single offence of knowingly taking part in the supply of a large commercial quantity of methylamphetamine. The quantity involved was a little under 9kg. There was an additional offence included on a Form 1 and taken into account pursuant to s 32 of the Crimes (Sentence Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”); that offence was knowingly taking part in the supply of a commercial quantity, namely 994g, of methylamphetamine. The judge imposed a sentence of 7 years and 6 months to commence on 4 April 2014 (the date of the applicant’s arrest) with a balance of term of 2 years 6 months, giving a sentence of 10 years…

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 Kassoua v R

Details

AGLC: Kassoua v The Queen [2017] NSWCCA 307
Case: [2017] NSWCCA 307
Decision Date: 12 December 2017

CaseChat Overview and Summary

The defendant, Kassoua, was convicted of drug trafficking offences and sentenced to a term of imprisonment. He appealed against the sentence, arguing that the primary judge had failed to adequately consider certain mitigating factors and had overemphasised the aggravating factors, particularly the financial gain from the offending. The High Court of Australia was asked to consider whether the sentencing judge had properly balanced the aggravating and mitigating features of the case and whether the sentence imposed was appropriate.

The court examined the principles of sentencing in the context of drug trafficking offences, focusing on the appropriate weight to be given to the financial gain as an aggravating factor and the relevance of the standard non-parole period. The court reiterated the need for a top-down approach to sentencing, starting with the minimum sentence for the offence and then adjusting for any aggravating or mitigating factors. The High Court found that the primary judge had correctly identified and weighed the relevant factors and had arrived at a sentence that was neither manifestly excessive nor manifestly inadequate.

Given the thorough analysis of the sentencing principles and the appropriate application of those principles to the facts of the case, the High Court dismissed the appeal. The sentence imposed by the primary judge was upheld as appropriate. The court did not make any further orders beyond dismissing the appeal.

Orders