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R v Kijurina

R v Kijurina

Case [2017] NSWCCA 117 31 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Kijurina [2017] NSWCCA 117
Hearing dates: 15 May 2017
Date of orders: 31 May 2017
Decision date: 31 May 2017
Before: Hoeben CJ at CL at [1];
Price J at [4];
Lonergan J at [116]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – two counts of supply of not less than the large commercial quantity of methylamphetamine contrary to s 25(2) Drug Misuse and Trafficking Act – drug “rip-offs” – whether non-custodial sentence was manifestly inadequate – whether findings of fact were open to the judge – whether judge had misdirected himself – whether judge had failed to properly consider the terms of the drug transaction – objective seriousness of drug “rip-offs” – need for specific and general deterrence – sentence manifestly lenient – whether Court should exercise residual discretion – extraordinary delay in sentencing proceedings
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 7
Criminal Appeal Act 1912 (NSW), s 5D
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Evidence Act 1995, ss 4(2), 165
Cases Cited: AB v R [2014] NSWCCA 339
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowndes v The Queen (1999) 195 CLR 655; [1999] HCA 29
R v Barker [2016] NSWCCA 193
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v DW [2012] NSWCCA 66
R v Greaves [2014] NSWCCA 194; 68 MVR 240
R v Hinchcliffe [2013] NSWCCA 327
R v O’Donoghue (1988) 34 A Crim R 397
R v Yaghi (2002) 133 A Crim R 490; [2002] NSWCCA 396
Turnbull v Chief Executive of the Environment and Heritage [2015] NSWCCA 278
Vu v R [2006] NSWCCA 188
Parris v R [2013] NSWCCA 5
Category: Principal judgment
Parties: Regina (Applicant)
Jacob Kijurina (Respondent)
Representation:
Counsel:
Mr N Adams (Applicant)
Ms S Goodwin (Respondent)
Solicitors:
Mr C Hyland – Solicitor for Public Prosecutions
Mr R Funston – Legal Aid NSW

File Number(s): 2014/144612
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 October 2016

Before:

Jeffreys DCJ

File Number(s):

2014/144612

Judgment

HOEBEN CJ at CL: I agree with Price J and the orders he proposes for the reasons that his Honour has given.
I wish to add some further observations. As Price J has pointed out, the delay in the sentencing judge completing this matter is entirely unsatisfactory. It is not only unfair to the respondent but has detrimentally affected the administration of justice in this State. By the imposition of what has been shown to be needless and unnecessary delay, the ability of this Court to properly carry out its function of correcting error and imposing appropriate sentences has been…

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 Kijurina

Details

AGLC: R v Kijurina [2017] NSWCCA 117
Case: [2017] NSWCCA 117
Decision Date: 31 May 2017

CaseChat Overview and Summary

The case of R v Kijurina involved the Crown appealing against a sentence given to the respondent, Kijurina, who had been found guilty of two counts of supplying a large commercial quantity of methylamphetamine. The case was heard in the Court of Appeal, where the Crown argued that the non-custodial sentence given by the trial judge was manifestly inadequate. The appeal raised questions regarding the trial judge's findings of fact, whether he had misdirected himself in his considerations, and if he had failed to properly evaluate the terms of the drug transactions.

The primary legal issues before the court were whether the findings of fact made by the trial judge were open to him, if the judge had misdirected himself in his sentencing considerations, and whether the judge had failed to properly assess the gravity of the drug transactions. The appeal also questioned whether the non-custodial sentence imposed was manifestly inadequate and whether the court should exercise its residual discretion in the matter. The objective seriousness of drug "rip-offs" and the need for specific and general deterrence were also considered by the court.

The court held that the findings of fact made by the trial judge were open to him and that he had not misdirected himself. However, the court found that the sentence imposed was manifestly inadequate and that the need for specific and general deterrence had not been properly considered by the trial judge. The court also found that the extraordinary delay in the sentencing proceedings warranted the exercise of the residual discretion. Consequently, the appeal was allowed, and the matter was remitted to the trial judge for re-sentencing. The final orders included the remission of the matter to the trial judge for re-sentencing, taking into account the appropriate considerations of specific and general deterrence.

Orders