R v Koert - [2000] NSWCCA 21

CITATION: R v KOERT [2000] NSWCCA 21

FILE NUMBER(S): CCA 60446/99

HEARING DATE(S): 18/2/2000

JUDGMENT DATE:
18 February 2000

PARTIES :

Regina
Beatrice KOERT

JUDGMENT OF: Ireland J at 18; Hulme J at 1; Smart AJ at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Dodd DCJ

COUNSEL : Crown: M. Cinque
In person

SOLICITORS: Crown: SE O'Connor
In person

DECISION: Leave to appeal granted; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL
No: 60446/99

IRELAND J
HULME J
SMART AJ

Friday, 18 February 2000

REGINA -v Beatrice KOERT
JUDGMENT

1    HULME J : The above named appellant pleaded guilty to a charge that on or about 12 November 1998 in Sydney she imported into Australia prohibited imports to which s 233B of the Customs Act applied, to wit cocaine in not less than the commercial quantity. The quantity of pure cocaine involved was 2,435.4 grams. Its estimated wholesale value was $325,000.

2    The maximum penalty of imprisonment prescribed for the offence of importing more than 2 kilograms of cocaine is life imprisonment. On 25 March 1999 Judge Dodd sentenced the appellant to imprisonment for a period of five years, including a non-parole period of three years, both periods commencing on the date of the appellant's arrest, namely 12 November 1998. His Honour indicated that in arriving at that sentence he had discounted the sentence he would have otherwise imposed by between 20 and 50 per cent.

3    The appellant has appealed against the sentence imposed.

4    Prior to her arrest and following her arrival from Santiago, Chile, the appellant was observed at Sydney Airport to be walking awkwardly. Asked if she was carrying anything on her legs, she denied doing so but when she was searched body packs containing the cocaine were detected. Later in the day the appellant agreed to assist the authorities and, with their connivance, booked into a hotel at Bondi Beach to wait for a telephone call which she had been told would come from someone desirous of collecting the cocaine.

5    Although over the following five days there were a number of telephone calls to the hotel and the appellant's cooperation continued, the operation was then terminated by the Federal Police, albeit not because of any act or omission on the appellant's part.

6    The sentencing judge said that he was satisfied that the appellant had fully cooperated with the police during the operation and supplied them with intelligence which could not have been obtained in any other say. The information was judged by the police to have moderate value.

7    The appellant was born on 1 April 1970 and is a South African citizen. Reports and other information put before the sentencing judge on behalf of the appellant indicated that her childhood had been traumatic and her marriage answered the same description. Her husband had apparently tried to murder her and she ran away to Brazil to escape his abuse leaving her two children with…

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 Koert

Details

AGLC: R v Koert [2000] NSWCCA 21
Case: [2000] NSWCCA 21
Decision Date: 18 February 2000

CaseChat Overview and Summary

The Court of Criminal Appeal in New South Wales heard an appeal by Beatrice Koert against her sentence for importing a significant quantity of cocaine into Australia. The appellant had pleaded guilty to importing 2,435.4 grams of cocaine, valued at approximately $325,000, which attracted a maximum penalty of life imprisonment. Judge Dodd of the District Court sentenced Koert to five years imprisonment, with a non-parole period of three years, after discounting the sentence by between 20 and 50 percent due to her cooperation with authorities. The central issue in this appeal was whether the sentence imposed by the District Court was appropriate, considering the appellant's cooperation and other mitigating factors.

The Court of Criminal Appeal reviewed the sentencing principles relevant to drug importation offences, particularly those involving couriers with no prior convictions. The Court considered the guideline established in R v Wong & Leung, which suggested an appropriate sentence for importing between 2 and 3.5 kilograms of cocaine should be between eight and twelve years imprisonment. Given the appellant's cooperation, albeit described as providing only moderate value, the Court found that the discount applied by the sentencing judge was reasonable. The Court acknowledged the appellant's traumatic background and her separation from her children but emphasised the need for deterrence in drug-related offences. The Court concluded that the sentence, while harsh, was not erroneous and appropriately reflected the seriousness of the offence and the need for deterrence.

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The judges found that the sentence imposed was within the appropriate range and did not constitute an error warranting intervention by the appellate court. The Court recognised the appellant's cooperation but underscored the necessity for severe penalties to deter similar offences. The final orders of the Court were to grant leave to appeal and dismiss the appeal, affirming the sentence imposed by the District Court.

Orders