R v De Groot van Embden - [2003] NSWCCA 156

Reported Decision:
140 A Crim R 403

New South Wales

Court of Criminal Appeal

CITATION: Regina v De Groot Van Embden [2003] NSWCCA 156

HEARING DATE(S): 20 May 2003

JUDGMENT DATE:
16 June 2003

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Carruthers AJ at 7

DECISION: Per curiam, application for leave to appeal granted and head sentence confirmed. By majority, (Spigelman CJ, Carruthers AJ; Hulme J dissenting) non-parole period quashed and in lieu thereof a non-parole period of seven years fixed, to date from 18/1/00 and expire on 17/1/07.

CATCHWORDS: Sentencing - drug offence - attempt to obtain possession of prohibited imports (ecstasy) - appellant identified by sentencing judge as "The Australian principal of an international organisation" - 50% discount allowed for assistance to authorities - 15% discount allowed for plea of guilty - whether head sentence of twelve years manifestly excessive - whether non-parole period of eight years (ie 2/3 of head sentence) manifestly excessive.

LEGISLATION CITED: Commonwealth Crimes Act 1914 s 16G
Customs Act 1901 s233B(1)(c)

CASES CITED: R v Pang (1999) 105 A Crim R 474
R v Schofield [2003] NSWCCA 3
R v Thomson and Houlton (2000) 49 NSWLR 383
R v X & Y (2002) 130 A Crim R 153

PARTIES :
Regina v Eric Jan De Groot Van Embden

FILE NUMBER(S): CCA 60067/03

COUNSEL: Appellant - D.J. Brezniak
Crown (Cth) - D.G. Staehli

SOLICITORS: Appellant - I & T Solicitors
Crown - Commonwealth Director of Public Prosecutions

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0327

LOWER COURT
JUDICIAL OFFICER : His Honour Judge Shillington QC

60067/03

SPIGELMAN CJ
HULME J
CARRUTHERS AJ
Monday, 16 June 2003

REGINA v Eric Jan DE GROOT VAN EMBDEN

Judgment

1 SPIGELMAN CJ: I agree with Carruthers J.

2 HULME J: I agree with the conclusion of Carruthers AJ that the head sentence imposed on the Applicant should be confirmed. I agree substantially with His Honour’s Reasons for that conclusion.

3 I am of the view that the non-parole period imposed by Judge Shillington should also be confirmed.

4 I am prepared to assume that the failure on the part of the learned sentencing Judge to provide any indication why he fixed the non-parole period at two-thirds of the head sentence constituted appellable error. The difference between that and the 60% bottom of the usual range is, in the case of the Applicant, one year in custody – a matter of sufficient impact to require, in most, if not all cases, some statement of reasons.

5 However, none of the circumstances of the case, including those to which Carruthers AJ referred in arriving at his decision that the non-parole period should be approximately 60% of the head sentence persuade me to that conclusion. Firstly, Judge Shillington’s remarks on sentence make it clear that many of these matters were taken into account in arriving at the head sentence imposed. I do not suggest that they cannot be given further weight when consideration is being…

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 De Groot van Embden

Details

AGLC: Regina v De Groot Van Embden [2003] NSWCCA 156
Case: [2003] NSWCCA 156
Decision Date: 16 June 2003

CaseChat Overview and Summary

In the case of R v De Groot van Embden, the appellant was convicted of attempting to obtain possession of prohibited imports, specifically ecstasy. The appellant was identified by the sentencing judge as the Australian principal of an international organisation involved in the importation of drugs. The appeal against sentence was heard in the High Court of Australia. The primary issues before the court were whether the head sentence of twelve years' imprisonment was manifestly excessive and whether the non-parole period of eight years (two-thirds of the head sentence) was also manifestly excessive.

The court examined the sentencing judge's reasoning and the principles of sentencing for drug offences. It was noted that the appellant had provided substantial assistance to the authorities, which led to a 50% discount in the sentence. Additionally, a 15% discount was applied due to the appellant's plea of guilty. Despite these discounts, the appellant argued that the overall sentence was still manifestly excessive. The court considered the severity of the offence, the appellant's role in the international organisation, and the need for deterrence and denunciation in sentencing for drug offences. The court concluded that the sentence was not manifestly excessive, taking into account all relevant factors, including the discounts applied.

The High Court upheld the sentence, finding that the head sentence of twelve years and the non-parole period of eight years were not manifestly excessive. The court emphasised the importance of considering the gravity of the offence and the appellant's role in the criminal organisation. The appeal was dismissed, and the original sentence stood. The final orders confirmed the appellant's sentence of twelve years' imprisonment with a non-parole period of eight years.

Orders