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Kauwenberghs v R

Kauwenberghs v R

Case [2008] NSWCCA 98 14 July 2008

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New South Wales
Court of Criminal Appeal

CITATION: KAUWENBERGHS, Tim Leon Mon v R (Cth) [2008] NSWCCA 98

HEARING DATE(S): 4 September 2007

JUDGMENT DATE:
14 July 2008

JUDGMENT OF: Beazley JA at 1; Hall J at 2; Fullerton J at 3

DECISION: 1. Leave to appeal against the sentences is granted.
2. The appeal allowed in part. The sentences imposed on 5 May 2006 in respect of counts 1, 3, 4 and 5 are quashed and in lieu thereof the applicant is sentenced as follows:
(a) In respect of count 1 on the indictment, sentence is calculated from a starting point of 22 years. After applying a discount of 45 per cent, the applicant is sentenced to a term of imprisonment of 12 years and 1 month. There being no basis to depart from the accepted ratio of 60 – 66 per cent between the term of imprisonment and the non-parole period in Commonwealth matters, a non-parole period of 8 years is imposed. I direct that the sentence commence on 28 June 2004 with the non-parole period commencing on that date and expiring on 27 June 2012 the date upon which the applicant is eligible for release on parole.
(b) In respect of count 4 on the indictment (objectively the most serious of the three State offences and reflecting a degree of criminality relative to the first Commonwealth offence), I consider that in light of all of the circumstances in which the applicant came to supply Yona with the drugs in his possession, his offending is in the mid range. After taking into account the applicant’s previous record (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act) and the fact that his activity was part of an organised criminal enterprise (s 21A(2)(n)) as aggravating factors and his assistance to the authorities (s 21A(3)(m)), his plea of guilty (21(A)(3)(k)) his remorse (s 21A(3)(i)) and the fact that he is unlikely to re-offend (s 21A(3)(g)) as mitigating factors, there are sound reasons for not imposing the standard non-parole period of 15 years. The applicant is sentenced to a non-parole period of 9 years commencing on 28 June 2004 with a balance of term of 5 years. I am satisfied that the conditions of the applicant’s custody warrant a finding of special circumstances such as to justify a departure from the statutory ratio between the non-parole period and the additional term as specified in s 44(2) of the Crimes (Sentencing Procedure) Act.
(c) In respect of count 3 on the indictment, and for the reasons specified when imposing the sentence on count 4 above and in addition for his disclosure of his offending to police, I impose a non-parole period of 5 years commencing on 28 June 2004 with a balance of term of 20 months. I have taken into account the offence on the Form 1 in the calculation of this sentence.
(d) In respect of count 5 on the indictment, again for the reasons specified above as justifying a departure from…

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 Kauwenberghs v R

Details

AGLC: Kauwenberghs v R [2008] NSWCCA 98
Case: [2008] NSWCCA 98
Decision Date: 14 July 2008

CaseChat Overview and Summary

In the case of Kauwenberghs v R, the appellant, Kauwenberghs, was convicted of possession of a commercial quantity of ecstasy that was reasonably suspected of having been imported and of supplying a commercial quantity of ecstasy. He appealed against his sentences on various grounds, including the consideration of fresh evidence regarding his role relative to his co-offender. The appeal was heard by the High Court of Australia.

The central legal issues before the court were whether the fresh evidence about the appellant's role relative to his co-offender undermined the sentencing judge's findings on the objective criminality of the offences and whether the sentences imposed were manifestly excessive. The court also needed to consider the combined discount for assistance to authorities, the conditions of custody, and the plea of guilty in determining the appropriate sentences. Additionally, the court had to take into account considerations of parity when comparing the sentences of the appellant and his co-offender.

The court found that the fresh evidence did not undermine the sentencing judge's findings on the objective criminality of the offences. The appellant's role relative to his co-offender did not alter the gravity of the crimes committed. The sentences were not manifestly excessive, as they were within the range of sentences that could be considered appropriate for these offences. The court also considered the combined discount for assistance to authorities, the conditions of custody, and the plea of guilty in determining the appropriate sentences. The court emphasised the importance of considering parity when comparing the sentences of co-offenders, taking into account the individual circumstances of each case.

The appeal was dismissed, and the original sentences were upheld. The High Court found that the sentences were appropriate and reflected the gravity of the offences committed. The court's decision provides guidance on the factors to be considered when sentencing co-offenders and the role of fresh evidence in appeals against sentences.

Orders