Regina Theodorus Kevenaar Marinus Dedoes Jin Rong Pan
FILE NUMBER(S):
CCA 60530/03; 60531/03; 60529/03
COUNSEL:
Crown: GA Farmer Kevenaar: R Burgess Dedoes: CB Craigie SC with R Button Pan: H Cox
SOLICITORS:
Crown: Commonwealth Director of Public Prosecutions Kevenaar: S Healy, Legal Aid Commission NSW Dedoes: M Sten, George Sten & Co Pan: R Hill, Ross Hill & Associates
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :
Acting Judge Mahoney
60530/03
60531/03
60529/03
HULME J
SIMPSON J
HOWIE J
Monday, 28 June 2004
REGINA v Theodorus KEVENAAR
REGINA v Marinus DEDOES
REGINA v Jin Rong PAN
Judgment
1 HULME J: The three Respondents to this Crown appeal were charged with, on or about 17 September 2002, attempting to commit an offence against s233B(1)(c) of the Customs Act 1901 in that they attempted to have in possession prohibited imports to which s233B of that Act applied, viz. narcotic goods consisting of a quantity of 3,4-Methylenedioxmethamphetamine being not less than the commercial quantity applicable to that drug which had been imported into Australia in contravention of that Act. 3,4-Methylenedioxmethamphetamine is commonly, and will be in these reasons, referred to as MDMA or Ecstasy. The maximum penalty provided for their offences is life imprisonment and a fine not exceeding $750,000.
2 The three persons were arrested on 17 September 2002. Their trial was scheduled to commence on 12 May 2003. On that day all 3 pleaded guilty to the charge, Messrs Kevenaar and Dedoes having indicated during the previous week that that was their intention. On 26 September a hearing on the question of sentence occurred. These proceedings did not conclude and were adjourned to 30 October. There was some hearing on that day and the matter stood over to 10 December for sentence. Also on 30 October an order was made as to the time any written submissions should be supplied. On 10 December 2003 the Respondents were sentenced by Acting Judge Mahoney.
3 Mr Kevenaar was sentenced to imprisonment for a period of 3 years including a non-parole period of 21½ months, both such periods to commence on 17 September 2002. His Honour indicated that in arriving at this figure, he had allowed a discount of 1 year for Mr Kevenaar’s plea and then discounted the resulting period of 6 years by 50% for assistance to the authorities. These matters indicate that his Honour’s starting point for Mr Kevenaar was 7 years and the total discount was over 57%. It is appropriate to note also that Mr Kevenaar’s non-parole period will expire on 30 June next.
4 Mr Dedoes was sentenced to imprisonment for a period of 4 years including a non-parole period…
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.
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Details
AGLC
R v Kevenaar [2004] NSWCCA 210
Case
[2004] NSWCCA 210
Decision Date
CaseChat Overview and Summary
In this case, the respondents, Theodorus Kevenaar, Marinus Dedoes, and Jin Rong Pan, were convicted of attempting to import a commercial quantity of MDMA, commonly known as ecstasy, in contravention of the Customs Act 1901. The Crown appealed the sentences imposed by Acting Judge Mahoney in the District Court, arguing that they were manifestly inadequate. The Court of Criminal Appeal found substantial errors in the sentencing process and inadequate sentences, leading to the quashing of the original sentences and the imposition of new sentences. Acting Judge Mahoney had erred in several ways, including not considering the effect of the repeal of section 16G of the Crimes Act, misapplying discounts for pleas and assistance, and making several erroneous findings about the respondents' circumstances and contrition. The Court determined that the appropriate head sentences for Kevenaar and Dedoes should fall within the range of 13 to 16 years, while Pan's sentence should be higher due to his greater role in the crime. After applying discounts for assistance, the new sentences were set at 7 years for Kevenaar, 7 years and 9 months for Dedoes, and 11 years for Pan, with corresponding non-parole periods. The Court allowed the appeal, quashed the original sentences, and imposed the new sentences, with the legal advisors for the parties to explain the purpose and consequences of the orders to the respondents.