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), 165Cases 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 5Category: Principal judgment Parties: Regina (Applicant)
Jacob Kijurina (Respondent)Representation: Counsel:
Solicitors:
Mr N Adams (Applicant)
Ms S Goodwin (Respondent)
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
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HOEBEN CJ at CL: I agree with Price J and the orders he proposes for the reasons that his Honour has given.
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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…
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- AGLC
- R v Kijurina [2017] NSWCCA 117
- Case
- [2017] NSWCCA 117
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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