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Kochai v R

Kochai v R

Case [2023] NSWCCA 116 24 May 2023

Sentencing

Manifest Excess

Objective Seriousness

Ground Dismissed

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kochai v R [2023] NSWCCA 116
Hearing dates: 15 February 2023
Date of orders: 24 May 2023
Decision date: 24 May 2023
Before: Button J at [1];
Wilson J at [2];
N Adams J at [3].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – objective seriousness – whether sentencing judge made an assessment of objective seriousness – where sentencing judge noted factors relevant to finding – no requirement to use an adjective to assess objective seriousness – ground dismissed
CRIMINAL LAW – sentence appeal – manifest excess – where no specific error discerned – whether sentence was manifestly excessive having regard to degree of accumulation – where applicant traded cocaine for illegal cigarettes – trading illegal substances represents more significant criminality than trading an illegal substance for money - comparable cases distinguishable – ground dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 193D(1)
Crimes (Sentencing Procedure) Act1999 (NSW), s 21A(3)(i)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)

Cases Cited:
A v R [2020] NSWCCA 145
Bektasovski v R [2022] NSWCCA 246
Briouzguine v R [2014] NSWCCA 264
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Delaney v R; R v Delaney [2013] NSWCCA 150
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19
Faraj v R [2022] NSWCCA 31
Hadler v R [2020] NSWCCA 305
Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45
Huang v R [2019] NSWCCA 144
Irmak v R; Dagdanasar v R [2021] NSWCCA 178
Khoury v R [2020] NSWCCA 190
Lee v R [2019] NSWCCA 106
McLean v R [2020] NSWCCA 344
Merheb v R [2021] NSWCCA 224
Naberezhnov v R [2021] NSWCCA 142
Newman (a pseudonym) v R [2019] NSWCCA 157
Nye v The Queen [2018] NSWCCA 244
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parkinson v R [2021] NSWCCA 98
Pham v R [2014] NSWCCA 115
R v Andrew Lee Black; R v Rowan Alistair Connell [2019] NSWDC 756
R v Campbell [2014] NSWCCA 102
R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519
R v Kochai [2022] NSWDC 230
R v Van Ryn [2016] NSWCCA 1
Rodgers v R [2018] NSWCCA 47
Rodriego (a Pseudonym) v The Queen (2021) 293 A Crim R 308; [2021] NSWCCA 237
Yeung v R [2018] NSWCCA 52

Category: Principal judgment
Parties: Khalid Kochai (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Goodwin (Applicant)
S Lind (Respondent)
Solicitors:
Sydney City Crime Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00238276
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Kochai [2022] NSWDC 230

Date of Decision:

24 June 2022

Before:

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 Kochai v R

Details

AGLC: Kochai v R [2023] NSWCCA 116
Case: [2023] NSWCCA 116
Decision Date: 24 May 2023

CaseChat Overview and Summary

In the matter of Kochai v R, the applicant, Kochai, appealed against his sentence for drug trafficking. The case was heard in the court of appeal, which was required to determine whether the sentencing judge appropriately assessed the objective seriousness of the offence and whether the sentence imposed was manifestly excessive. The central issue was whether the sentencing judge made an adequate assessment of the objective seriousness of Kochai's criminal conduct, considering that the judge noted relevant factors but did not explicitly use a specific adjective to assess it. The second issue was whether the sentence imposed was manifestly excessive in light of the degree of accumulation, given that Kochai had traded cocaine for illegal cigarettes.

The court of appeal found that the sentencing judge had indeed assessed the objective seriousness of Kochai's actions, noting various relevant factors without necessarily using a specific adjective to quantify the seriousness. The court held that there is no requirement for a sentencing judge to use a specific adjective to assess the objective seriousness of an offence. As such, the ground of appeal regarding the assessment of objective seriousness was dismissed. Additionally, the court found that the sentence was not manifestly excessive. Although Kochai had traded cocaine for illegal cigarettes, the court noted that this act represented a more significant level of criminality than trading an illegal substance for money. The court considered comparable cases but found them distinguishable on their facts. Consequently, the ground of appeal regarding the manifest excess of the sentence was also dismissed.

As a result of the appeal being dismissed, the original sentence imposed by the sentencing judge was upheld. The court of appeal did not find any specific errors in the sentencing process that warranted altering the sentence. Therefore, the original sentence remains in effect.

Orders