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Klomfar v R

Klomfar v R

Case [2019] NSWCCA 61 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Klomfar v R [2019] NSWCCA 61
Hearing dates: 11 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Payne JA at [1]
Bellew J at [2]
Campbell at [45]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Appeal – Sentence –Where applicant pleaded guilty to importing a quantity of cocaine in excess of the commercial quantity – Where there was a disparity in the sentence imposed upon the applicant compared with the sentence imposed upon a co-offender – Whether the applicant had a justifiable sense of grievance – Where there were clear distinguishing features between the objective criminality and the subjective circumstances of the applicant and that of the co-offender – No unjustified disparity in the sentences imposed
CRIMINAL LAW – Offences – Appeal – Sentence –Whether sentence imposed upon the applicant was manifestly excessive –– Serious offending involving the importation of a quantity of cocaine which was substantially in excess of the commercial quantity – Applicant had travelled from Europe to the United States to collect the cocaine before travelling to Australia – Significance of role played by the applicant in effecting the importation – Sentence not manifestly excessive
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: Budiman v R (1998) 102 A Crim R 411
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Le Cerf v R (1975) 13 SASR 237
Lindsay v R [2012] NSWCCA 124
Lowe v R (1984) 145 CLR 606; [1984] HCA 46
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Holland [2011] NSWCCA 65
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Vaiusu v R [2017] NSWCCA 71
Xiao v R [2018] NSWCCA 4
Category: Principal judgment
Parties: Petr Klomfar - Applicant
Regina - Respondent
Representation:
Counsel:
I McLachlan - Applicant
R Ranken - Respondent
Solicitors:
Toomey Defence Lawyers – Applicant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): 2016/676120-03
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 May 2018

Before:

His Honour Judge Zahra SC

Judgment

PAYNE JA: I agree with Bellew J.
BELLEW J: On 19 June 2017, which was the day on which his trial was to commence, Petr Klomfar (the applicant) pleaded guilty in the District Court to the following offence:

On or about 2 March 2016, at Sydney in the State of NSW, he did import a substance, the substance being a border controlled drug, namely cocaine, the quantity imported being a commercial quantity.

The commercial quantity of cocaine is 2 kilograms. The quantity of pure cocaine imported by the applicant was 4.653…

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 Klomfar v R

Details

AGLC: Klomfar v R [2019] NSWCCA 61
Case: [2019] NSWCCA 61
Decision Date: 29 March 2019

CaseChat Overview and Summary

Klomfar, the applicant, appealed against the sentence imposed by the court below following his conviction for importing a quantity of cocaine in excess of the commercial quantity. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed upon the applicant was manifestly excessive or if there was an unjustified disparity in the sentences imposed upon the applicant and his co-offender. The court also needed to determine whether the applicant had a justifiable sense of grievance due to the disparity in the sentences.

The court found that there was no unjustified disparity in the sentences imposed upon the applicant and his co-offender. The court identified clear distinguishing features between the objective criminality and the subjective circumstances of the applicant and that of the co-offender. The applicant had played a significant role in effecting the importation of the cocaine, having travelled from Europe to the United States to collect the drugs before travelling to Australia. The court concluded that the sentence imposed upon the applicant was not manifestly excessive, taking into account the seriousness of the offending, the quantity of cocaine imported, and the applicant's role in the importation process.

The High Court of Australia dismissed the appeal, upholding the sentence imposed upon the applicant. The court found that the sentence was appropriate and did not constitute an unjustified disparity with the sentence imposed upon the co-offender. The court also determined that the sentence was not manifestly excessive, given the circumstances of the case. The appeal was therefore dismissed, and the original sentence was upheld.

Orders