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Koosmen v The King

Koosmen v The King

Case [2025] NSWCCA 122 15 August 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Koosmen v R [2025] NSWCCA 122
Hearing dates: 21 July 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Before: McHugh JA at [1];
Hamill J at [2];
Yehia J at [3]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed on the applicant in the District Court on 26 April 2024, and in lieu thereof sentence the applicant to an aggregate term of 12 years’ imprisonment commencing on 1 December 2022 and expiring on 30 November 2034, with a non-parole period of 8 years’ imprisonment. The first date that the applicant will be eligible for release to parole is 30 November 2030.

Catchwords:
CRIME – appeals – appeal against sentence – Form 1 matters – where sentencing judge indicated a starting point for Count 1 before taking into account the Form 1 offences – whether an error in this approach
CRIME – appeals – appeal against sentence – where the sentencing judge failed to make findings in respect of the applicant’s remorse and prospects of rehabilitation – where evidence adduced in support of remorse and rehabilitation – where competing submissions made about mitigating factors – where the differences required “clear and transparent resolution” – appeal allowed

Legislation Cited:
Crimes Act 1900 (NSW), ss 18(1)(b), 52AB(1), 61, 112(1)(a), 112(2), 148, 154A(1)(a), 195(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(1)(b), 21A(2)(j), 21A(3)(i), 25D(2)(a), 32, 33, 53A, 53A(2)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Road Transport Act 2013 (NSW), s 54(1)(a)

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Alenezi v R [2023] NSWCCA 283
Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195
Director of Public Prosecutions (NSW) v TH (2023) 307 A Crim R 149; [2023] NSWCCA 81
Huang v R [2019] NSWCCA 144
Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37
Li v R [2023] NSWCCA 112
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Masters v R [2019] NSWCCA 233
Moananu v R [2022] NSWCCA 85
Nosti v R [2024] NSWCCA 158
Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
Porter v R [2019] NSWCCA 117
R v Koosmen [2024] NSWDC 161
STB v R [2024] NSWCCA 36
Tukuafa v R [2024] NSWCCA 84

Category: Principal judgment
Parties: Benjamin Koosmen (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Huxley (Applicant)
S Healy (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00364441
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2024] NSWDC 161

Date of Decision:

26 April 2024

Before:

Sutherland SC DCJ

File Number(s):

2022/00364441

HEADNOTE

[This…

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 Koosmen v The King

Details

AGLC: Koosmen v The King [2025] NSWCCA 122
Case: [2025] NSWCCA 122
Decision Date: 15 August 2025

CaseChat Overview and Summary

Koosmen sought leave to appeal against his sentence, challenging the method used by the sentencing judge in determining the starting point for Count 1 of his sentence. The applicant contended that the judge erred by indicating a starting point for Count 1 before taking into account the Form 1 offences, and that the judge failed to make findings in respect of his remorse and prospects of rehabilitation. The High Court was asked to decide whether these errors warranted an appeal against sentence.

The legal issues before the Court were whether the sentencing judge's approach in setting a starting point for Count 1, before considering the Form 1 offences, constituted an error, and whether the judge's failure to make findings on the applicant's remorse and prospects of rehabilitation was a ground for appeal. The Court had to consider the proper approach to sentencing and whether the judge's omissions required a clear and transparent resolution.

The Court held that the sentencing judge's approach in setting a starting point for Count 1 before taking into account the Form 1 offences was erroneous, as it did not follow the correct process. The Court also found that the judge's failure to make findings on the applicant's remorse and prospects of rehabilitation was a ground for appeal, as the evidence adduced in support of these mitigating factors required a clear and transparent resolution. Given the differences in the submissions made by the parties, the Court determined that these errors warranted an appeal against sentence.

Accordingly, the Court granted leave to appeal against sentence, emphasising the need for clear and transparent findings on remorse and prospects of rehabilitation, and for the proper approach to be taken in setting a starting point for the sentence.

Orders