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R v Bimahendali

R v Bimahendali

Case [1999] NSWCCA 409 15 December 1999

Criminal Liability

Sentencing

Drug Offences

Importation of Prohibited Substances

Role in Drug Trafficking

Criminal Law

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Reported Decision:
109 A Crim R 355

New South Wales

Court of Criminal Appeal

CITATION: R v Bimahendali [1999] NSWCCA 409

FILE NUMBER(S): CCA 60236/99

HEARING DATE(S): 3 December 1999

JUDGMENT DATE:
15 December 1999

PARTIES :

The Crown
Eli Bimahendali

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 35; Simpson J at 36

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL: Crown: W G Roser
Applicant R Burgess

SOLICITORS: S.E. O'Connor
T.A. Murphy

CATCHWORDS:

DECISION: Leave to appeal granted. Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
No. 60236/99

WOOD CJ at CL
SULLY J
SIMPSON J
WEDNESDAY 15 DECEMBER 1999

Regina v Eli BIMAHENDALI
JUDGMENT
1 WOOD CJ at CL: On 11th December 1998, the applicant pleaded guilty to one count of being knowingly concerned in the importation of a prohibited import, namely 80.1 grams of methylamphetamine contrary to s233B(1)(d) of the Customs Act 1901. On 7 May 1999, he was sentenced by Kirkham DCJ to imprisonment for six years with a non parole period of four years. 2 The maximum penalty for this offence is a fine not exceeding $100,000 or imprisonment for twenty-five years or both. The trafficable quantify for methylamphetamine is 2 grams. There is no commercial quantity specified for this substance. The maximum street value of the methylamphetamine imported on this occasion was said to be between $150,000 and $500,000, a somewhat curious figure when compared with the values attributed to the same substance in the other cases cited on appeal, but one which was apparently accepted in the sentencing proceedings. 3 The facts are as set out in the judgment (pp 1-7). Stripped of some matters of peripheral relevance, they disclose that:

The applicant is an Indonesian National who entered Australia on 12 February 1996 on a flight from Indonesia.

Upon his arrival in Sydney he resided as a guest at the home of an Indonesian acquaintance named Tobugus Andereas Shaldon and his wife Lilly Wattie Swosantio at unit 5, 64 Beachamp Road, Hillsdale. The applicant and Mr. Shaldon had attended the same high school in Indonesia in about 1987. Some two weeks later the applicant procured a place of residence for himself at flat 5, 57 Church Street, Randwick.

On 14 March 1998 a female Indonesian National by the name of Christy De Gois, entered Australia via Sydney airport. From about 21 March 1998 the applicant moved to rental premises at unit 25, 300B Burns Bay Road, Lane Cove.

On 23 March 1998 a telephone service in the name of the applicant was connected to the Burns Bay Road apartment. Mr. Shaldon and Ms Swosantio visited the applicant at his Randwick address and subsequently at the address at Lane Cove on a number of occasions.

In about April 1998 Mr. Shaldon and Ms Swosantio attended a barbecue hosted by the applicant at Burns Bay Road. Ms Swosantio informed him that her cousin was involved in the importation of clothing…

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 R v Bimahendali

Details

AGLC: R v Bimahendali [1999] NSWCCA 409
Case: [1999] NSWCCA 409
Decision Date: 15 December 1999

CaseChat Overview and Summary

Eli Bimahendali pleaded guilty to being knowingly concerned in the importation of 80.1 grams of methylamphetamine, a prohibited import, under section 233B(1)(d) of the Customs Act 1901. The maximum penalty for this offence is imprisonment for twenty-five years, a fine not exceeding $100,000, or both. Bimahendali was sentenced to six years imprisonment with a non-parole period of four years. The applicant appealed against the sentence, arguing that the sentence was manifestly excessive and that the District Court Judge erred in finding that he was a "prime mover if not the prime mover" in the offence. The Court of Criminal Appeal held that the sentence was not manifestly excessive and that the District Court Judge was entitled to find that the applicant was at least a prime mover in the offence. The appeal was dismissed, and leave to appeal was granted.

Orders