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Kurniawan v The Queen

Kurniawan v The Queen

Case [2017] NSWCCA 171 21 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kurniawan v R [2017] NSWCCA 171
Hearing dates: 26 May 2017
Decision date: 21 July 2017
Before: Bathurst CJ at [1]
McCallum J at [2]
N Adams J at [3]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – where applicant sentenced on the basis of brief agreed facts – whether sentencing judge erred in failing to make any finding about the extent of applicant’s involvement in supply of prohibited drugs – whether sentencing judge erred in failing to have regard to where quantity of drug fell in possible range – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, s 21A, 33
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
B v R [2015] NSWCCA 314
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
El-Ahmad v R [2015] NSWCCA 65
Hill v R [2012] NSWCCA 265
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kemp v R [2014] NSWCCA 153
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Olbrich v R (1999) 199 CLR 270; [1999] HCA 54
Riggio v R [2015] NSWCCA 223
R v Dinsdale (2000) 202 CLR 321; [2000] HCA 54
R v Engert (1996) 84 A Crim R 67
R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34
Smith v R [2007] NSWCCA 138
Category: Principal judgment
Parties: Jancen Kurniawan (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr C Parkin (Applicant)
Ms N Williams (Respondent)
Solicitors:
Murphy’s Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/73316; 2015/140134
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 November 2015

Before:

Hoy SC DCJ

File Number(s):

2014/73316; 2015/140134

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of N Adams J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.
McCALLUM J: I agree with N Adams J.
N ADAMS J: The applicant Jancen Kurniawan seeks leave to appeal against the sentence imposed upon him by Hoy SC DCJ at the District Court at Sydney on 18 November 2015 for an offence of supplying the commercial quantity of a prohibited drug. The applicant had pleaded guilty to three offences as follows:

Supply a prohibited drug (9.75 grams of methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) (which carries a maximum penalty of imprisonment for 15 years and/or 2,000 penalty units) (Count 1);

Supply the commercial quantity of a prohibited drug (373.5 grams of methylamphetamine) contrary to s 25(2) of the DMTA (which…

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 Kurniawan v The Queen

Details

AGLC: Kurniawan v The Queen [2017] NSWCCA 171
Case: [2017] NSWCCA 171
Decision Date: 21 July 2017

CaseChat Overview and Summary

In the case of Kurniawan v The Queen, the applicant, Kurniawan, appealed against his sentence imposed by the sentencing judge, following a conviction for drug trafficking. The dispute centred on the adequacy of the sentence given by the sentencing judge, with Kurniawan asserting that the sentence was manifestly excessive and that the sentencing judge failed to make crucial findings regarding his involvement in the drug supply and the quantity of drugs involved. The High Court of Australia was tasked with deciding whether the sentencing judge erred in not making specific findings about the extent of Kurniawan's involvement and the quantity of drugs, as well as whether the sentence imposed was manifestly excessive.

The central legal issue before the court was whether the sentencing judge erred in failing to make explicit findings about the extent of Kurniawan's involvement in the drug supply and the quantity of the drugs, and if this omission resulted in a manifestly excessive sentence. The court examined whether the sentencing judge appropriately considered the relevant sentencing principles and the range of potential sentences for the offence. Kurniawan argued that the lack of specific findings meant the sentence imposed was not properly tailored to his individual circumstances, thus rendering it excessive.

The court held that the sentencing judge did not err in failing to make specific findings about Kurniawan's involvement and the quantity of drugs, as the agreed facts provided a sufficient basis for the sentence imposed. The court found that the sentencing judge did consider the range of possible sentences and that the sentence was not manifestly excessive. The court concluded that the sentencing judge was not required to make specific findings on these points, given the agreed facts and the overall sentencing process. The appeal was dismissed, and the sentence remained as imposed by the sentencing judge.

Orders