Legal Research
Cases
Kyuldzhiev v The Queen

Kyuldzhiev v The Queen

Case [2019] WASCA 162 24 October 2019

Type to search within this case.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KYULDZHIEV -v- THE QUEEN [2019] WASCA 162
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   9 OCTOBER 2019
DELIVERED          :   24 OCTOBER 2019
FILE NO/S:   CACR 189 of 2018
BETWEEN:   SAVA IVANOV KYULDZHIEV
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CORBOY J
Citation:   R -v- KYULDZHIEV [2018] WASCSR 244
File Number             :   INS 104 of 2018

Catchwords:

Criminal law - Appeal against sentence - Importation of a commercial quantity of a border controlled drug - Whether sentencing judge erred in evaluating the relative roles of the appellant and his co-offender in the enterprise - Whether sentence of 13 years' imprisonment, with a non-parole period of 9 years 6 months, was manifestly excessive

Legislation:

Criminal Code (Cth), s 307.1

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms J M Byrne
Respondent	:	Mr T H Offer

Solicitors:

Appellant	:	Equitas Lawyers
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Beqiri v The Queen [2017] VSCA 112; (2017) 270 A Crim R 523
DPP v Peng [2014] VSCA 128
Lin v The Queen [2016] NSWCCA 200
Ljuboja v The Queen [2011] WASCA 143; (2011) 210 A Crim R 274
Nguyen v The Queen [2011] VSCA 32; (2011) 207 A Crim R 380
Nguyen v The Queen [2012] VSCA 119
Obiekwe v The Queen [2018] NSWCCA 55
R v Ng [2012] WASCA 180
R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Yuan [2015] NSWCCA 198; (2015) 252 A Crim R 422
Ruiz v The Queen [2013] VSCA 313
Saab v The Queen [2012] VSCA 165
Stipkovich v The Queen [2018] WASCA 63

JUDGMENT OF THE COURT:

Summary

On 12 September 2018, the appellant was convicted, on his plea of guilty, of importing a commercial quantity of a border controlled drug, namely 30.2 kg (23.7 kg pure weight) of methamphetamine. That is an offence against s 307.1(1) of the Criminal Code (Cth). He was sentenced to 13 years' imprisonment, with a non‑parole period of 9 years 6 months. The sentence was backdated to 12 March 2018, to take account of time spent in custody on remand.
The appellant was jointly charged with two co-offenders, Nadezhda Nikolaeva Bratanova and Georgi Stanchev. They also pleaded guilty to the charge, and were dealt with by the same sentencing judge. Mr Stanchev was sentenced to 13 years 6 months' imprisonment, with a non-parole period of 10 years.
The appellant now seeks leave to appeal against his sentence on two grounds. Ground 1 in effect contends that the sentencing judge erred in fact in finding that the role played by the appellant and Mr Stanchev in the offending was broadly equivalent. Ground 2 contends that the sentence imposed on the appellant was manifestly excessive.
Neither…

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 Kyuldzhiev v The Queen

Details

AGLC: Kyuldzhiev v The Queen [2019] WASCA 162
Case: [2019] WASCA 162
Decision Date: 24 OCTOBER 2019

CaseChat Overview and Summary

In the case of Kyuldzhiev v The Queen, the appellant was convicted of importing a commercial quantity of a border controlled drug. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the evaluation of his relative role in the enterprise was flawed, and that the sentence of 13 years' imprisonment, with a non-parole period of 9 years 6 months, was manifestly excessive. The High Court of Australia was tasked with reviewing the sentence and determining whether the appeal should be allowed.

The legal issues that arose in this case were whether the sentencing judge erred in assessing the roles of the appellant and his co-offender in the drug importation enterprise, and whether the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge did not give adequate weight to his relatively lesser role in the operation and that the sentence was disproportionate to the crime committed.

The court considered the role of the appellant in the importation operation, which involved the transportation of a large quantity of drugs. While the appellant acknowledged his participation, he argued that his role was less significant than that of his co-offender. The court also examined the principle of proportionality in sentencing and whether the sentence imposed was manifestly excessive. Ultimately, the court determined that the sentencing judge did not err in evaluating the roles of the appellant and his co-offender, and that the sentence imposed was not manifestly excessive.

The High Court of Australia dismissed the appeal, affirming the sentence of 13 years' imprisonment, with a non-parole period of 9 years 6 months, imposed by the sentencing judge. The court found that the sentencing judge had appropriately considered the appellant's role in the importation operation and that the sentence was proportionate to the gravity of the offence. The court emphasised the importance of individual circumstances in sentencing and the need for courts to exercise their discretion in a manner that is just and proportionate to the crime committed.

Orders