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R v Koosmen

R v Koosmen

Case [2024] NSWDC 161 26 April 2024

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District Court

New South Wales

Medium Neutral Citation: R v Koosmen [2024] NSWDC 161
Hearing dates: 9 April 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
15 years imprisonment with a non-parole period of 10 years, at [272] – [275].

Catchwords:
CRIME — Manslaughter — Vehicular manslaughter — Intoxication — Offender claims "accidental drug use"
CRIME — Driving offences — Failure to stop and assist after vehicle impact causing death or grievous bodily harm
CRIME — Property offences — Destroying or damaging property — Take and drive a conveyance — Offender stole two cars in the same instance of criminal offending
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Break, enter and commit serious indictable offence
CRIME — Violent offences — Common assault

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Drug Court Act 1998 (NSW)
Road Transport Act 2013 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 37
Davidson v R [2022] NSWCCA 153
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Moananu v R [2022] NSWCCA 85
R v Abdulrahman [2020] NSWDC 731
R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70
R v Cook [2023] NSWCCA 9
R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
R v Davidson [2021] NSWDC 164
R v Geagea [2019] NSWDC 345
R v Gordon (No 8) [2017] NSWSC 574
R v Holder (1983) 3 NSWLR 245
R v Moananu [2020] NSWDC 672
R v Shumack [2007] NSWDC 254
R v Smith, Jarad [2016] NSWCCA 75
R v Winter [2012] NSWCCA 218
Regina v Whyte [2002] NSWCCA 343
Shumack v R [2008] NSWCCA 311
Smith v R [2020] NSWCCA 181
Sparke v R [2012] NSWCCA 140
Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503
Texts Cited:
Nil

Category: Sentence
Parties: Rex (Crown)
Benjamin Koosmen (Offender)
Representation:
Counsel:
J Kelton (Crown)
E McLoughlin (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2022/00364441
Publication restriction: Nil

JUDGMENT

Benjamin Koosmen appears for sentence after entering pleas of guilty to a number of offences committed by him in the course of an extended criminal escapade on 1 December 2022.
Despite being disqualified from driving and under the influence of illegal drugs, including cocaine and methamphetamine, he unlawfully acquired a motor vehicle which he then drove while being pursued by police for over an hour. In the course of running a red light, he collided with a motorcycle and killed the rider, Mr Christian Langham. He fled the scene without stopping to render any assistance and then broke into nearby premises where he intimidated and subsequently assaulted one of the owners. He broke into a second premises which were immediately adjacent and also intimidated that owner. He subsequently entered a third premises where he stole car keys and a vehicle.

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 Koosmen

Details

AGLC: R v Koosmen [2024] NSWDC 161
Case: [2024] NSWDC 161
Decision Date: 26 April 2024

CaseChat Overview and Summary

The defendant, Koosmen, faced a series of charges following an incident where he had driven under the influence, leading to a fatal accident and subsequent flight from the scene. The case was heard in the Supreme Court of Queensland. The charges included vehicular manslaughter, failing to stop and assist after an accident, stealing a vehicle, breaking and entering with intent to commit a serious indictable offence, and common assault.

The central legal issues revolved around the defendant's state of intoxication and whether his actions were truly accidental or indicative of reckless disregard for the safety of others. Additionally, the court had to determine the appropriate charges for the various offences committed by the defendant and the severity of the penalties. The court needed to weigh the defendant's claims of accidental drug use against the gravity of his actions and the resulting harm.

In its reasoning, the court acknowledged the defendant's claim of accidental drug use but found that this did not absolve him of responsibility for his actions. The court determined that Koosmen's intoxication was self-induced and that he exhibited a reckless disregard for the safety of others by driving under such conditions. The court also noted the defendant's subsequent flight from the scene and the multiple instances of criminal activity, including stealing two cars and breaking and entering with intent to commit a serious indictable offence. After considering these factors, the court sentenced Koosmen to 15 years in prison with a non-parole period of 10 years.

Orders

Orders of the court

15 years imprisonment with a non-parole period of 10 years, at [272] – [275].

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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Actions

Citations

R v Koosmen [2024] NSWDC 161

Most Recent Citation

Koosmen v The King [2025] NSWCCA 122

Cases Citing This Decision

Koosmen v The King [2025] NSWCCA 122
Citation 1 (Para 10)

…The factual background set out in the Remarks on Sentence (ROS) is derived from the contents of the Statement of Agreed Facts: R v Koosmen [2024] NSWDC 161 at [5]-[78]. The applicant also gave evidence in the sentencing proceedings. What follows is a summary of the facts.…

See all citing cases →

Cases Cited

R v Cook [2023] NSWCCA 9
Citation 1 (Para 276)

…r and also a number of additional substantive charges, some of which related to the offender’s actions immediately after the car crash, is R v Cook [2023] NSWCCA 9. This was a Crown appeal against the asserted inadequacy of an aggregate sentence of 14 years imprisonment with a non-parole period of 9 years, imposed…
Davidson v R [2022] NSWCCA 153
Citation 2 (Para 222)

…rous driving charges occasioning death, rather than offences which are proceeding as a charge of manslaughter; see N Adams J at [210] in Davidson v R [2022] NSWCCA 153.…
Moananu v R [2022] NSWCCA 85
Citation 3 (Para 261)

…A successful appeal against severity is also to be found in Moananu v R [2022] NSWCCA 85. By majority, Hamill J and Leeming JA agreeing; Price J dissenting, an aggregate sentence of 15 years with a 10 year non-parole period was reduced to 12 years and 6 months with a non-parole period of 8 years and 4 months.…
Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Citation 4 (Para 255)

…Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 was a matter that came before the Court of Criminal Appeal pursuant to an appeal by the Crown against an aggregate sentence imposed on the offender for manslaughter and driving while disqualified. The offences arose out of a motor accident when the spee…
R v Davidson [2021] NSWDC 164
Citation 5 (Para 272)

…With respect to the four counts of manslaughter, the indicative sentence at first instance (per Bennett SC DCJ: R v Davidson [2021] NSWDC 164 ) was 14 years and 3 months. With respect to one count of aggravated dangerous driving occasioning grievous bodily harm, the indicative sentence was 6 years, and with respect…
R v Moananu [2020] NSWDC 672
Citation 6 (Para 219)

…tive gravity of the offences as falling within the upper end of the range of objective seriousness, but falling short of the worst case ( R v Moananu [2020] NSWDC 672). The indicative sentences which he imposed were 8 years and 6 months with respect to the manslaughter of the 17 year old driver (Count 1); 9 years w…
R v Abdulrahman [2020] NSWDC 731
Citation 7 (Para 257)

…liams SC DCJ had imposed an aggregate sentence of 6 years and 10 months with an aggregate non-parole period of 4 years and 6 months ( R v Abdulrahman [2020] NSWDC 731). The indicative sentence with respect to the manslaughter, taking into account possession of drug offences on a Form 1, was 6 years and 9 months. Th…
Smith v The Queen [2020] NSWCCA 181
Citation 8 (Para 251)

…A case provided to this Court by the Defence was Smith v R [2020] NSWCCA 181. The factual background to that matter was that the offender was driving on Old Bar Road east of Taree when she had a head-on collision with a vehicle being driven in the opposite direction, killing the other driver. She had a Blood Alcohol…
R v Holder [2019] SASCFC 73
Citation 9 (Para 285)

…totality of the criminality and the totality of the sentences.” (see: the remarks of Street CJ regarding the principle of totality in R v Holder (1983) 3 NSWLR 245 at [260]).…
R v Geagea [2019] NSWDC 345
Citation 10 (Para 234)

…In R v Geagea [2019] NSWDC 345 a motorist killed a pedestrian standing on the road and then drove away from the scene without stopping to render assistance. He avoided the Police for over a week during which time he took active steps to get rid of the vehicle which he had been driving. When arrested he lied to Poli…
R v Gordon (No 8) [2017] NSWSC 574
Citation 11 (Para 253)

…208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; and R v Gordon (No 8) [2017] NSWSC 574.…
R v Jarad Smith [2016] NSWCCA 75
Citation 12 (Para 229)

…R v Smith, Jarad [2016] NSWCCA 75 was a Crown appeal against the asserted inadequacy of both the indicative sentences and the aggregate sentence passed by Judge McClintock SC with respect to dangerous driving occasioning the deaths of two pedestrians who were struck and killed when the 20-year-old extremely drunk d…
Bugmy v The Queen [2013] HCA 37
Citation 13 (Para 277)

…loaded firearm in a public place. The offender had been on conditional liberty at the time of the driving offences. There were substantial Bugmy ([2013] HCA 37) considerations arising from the highly dysfunctional childhood of the offender.…
R v Winter [2012] NSWCCA 218
Citation 14 (Para 247)

…R v Winter [2012] NSWCCA 218 was a Crown appeal against the inadequacy of the sentence imposed by the late Judge Toner SC. The factual circumstances involved the driver being under the influence of cannabis and having blacked out whilst driving. Her vehicle mounted the kerb and killed two pedestrians. There was a hi…
Spark v R [2012] NSWCCA 140
Citation 15 (Para 240)

…Sparke v R [2012] NSWCCA 140 was an appeal against the severity of sentence imposed in the District Court by Syme DCJ of an effective 15 years imprisonment with a non-parole period of 11 years and 3 months. The offender had been sentenced after pleading guilty to two counts of manslaughter following an accident in S…
Woodbridge v R [2010] NSWCCA 185
Citation 16 (Para 249)

…s in which an offender was sentenced for manslaughter arising from the use of a motor vehicle which had been set out by R S Hulme J in Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503. His Honour concluded that the sentences handed down by Toner DCJ were so disproportionate to the offences committed by the…
Shumack v R [2008] NSWCCA 311
Citation 17 (Para 224)

…Shumack v R [2008] NSWCCA 311 was an appeal from an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years which had been imposed by Conlon DCJ ( R v Shumack [2007] NSWDC 254). The first count was of dangerous driving occasioning death carrying a maximum penalty of 10 years. The second count…
R v Michael John SHUMACK [2007] NSWDC 254
Citation 18 (Para 224)

…s an appeal from an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years which had been imposed by Conlon DCJ ( R v Shumack [2007] NSWDC 254). The first count was of dangerous driving occasioning death carrying a maximum penalty of 10 years. The second count was of failing to stop and assi…
R v Cameron [2005] NSWCCA 359
Citation 19 (Para 253)

…icular were referred to in support of that conclusion. They were respectively, Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; and R v Gordon (No 8) [2017] NSWSC 574.…
R v Whyte [2002] NSWCCA 343
Citation 20 (Para 222)

…I bear in mind that the guideline judgment of Regina v Whyte [2002] NSWCCA 343 only operates to provide guidance with respect to dangerous driving charges occasioning death, rather than offences which are proceeding as a charge of manslaughter; see N Adams J at [210] in Davidson v R [2022] NSWCCA 153.…
R v Cramp [1999] NSWCCA 324
Citation 21 (Para 253)

…. They were respectively, Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503; R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70; R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; and R v Gordon (No 8) [2017] NSWSC 574.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 98)
Crimes Act 1900 (ACT)
1 mention (from Para 10)
Drug Court Act 1998 (NSW)
1 mention (from Para 199)
Road Transport Act 2013 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	R v Koosmen [2024] NSWDC 161
Hearing dates:	9 April 2024
Date of orders:	26 April 2024
Decision date:	26 April 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	15 years imprisonment with a non-parole period of 10 years, at [272] – [275].
Catchwords:	CRIME — Manslaughter — Vehicular manslaughter — Intoxication — Offender claims "accidental drug use" CRIME — Driving offences — Failure to stop and assist after vehicle impact causing death or grievous bodily harm CRIME — Property offences — Destroying or damaging property — Take and drive a conveyance — Offender stole two cars in the same instance of criminal offending CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Break, enter and commit serious indictable offence CRIME — Violent offences — Common assault
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Drug Court Act 1998 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Davidson v R [2022] NSWCCA 153 Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114 Moananu v R [2022] NSWCCA 85 R v Abdulrahman [2020] NSWDC 731 R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70 R v Cook [2023] NSWCCA 9 R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 R v Davidson [2021] NSWDC 164 R v Geagea [2019] NSWDC 345 R v Gordon (No 8) [2017] NSWSC 574 R v Holder (1983) 3 NSWLR 245 R v Moananu [2020] NSWDC 672 R v Shumack [2007] NSWDC 254 R v Smith, Jarad [2016] NSWCCA 75 R v Winter [2012] NSWCCA 218 Regina v Whyte [2002] NSWCCA 343 Shumack v R [2008] NSWCCA 311 Smith v R [2020] NSWCCA 181 Sparke v R [2012] NSWCCA 140 Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503
Texts Cited:	Nil
Category:	Sentence
Parties:	Rex (Crown) Benjamin Koosmen (Offender)
Representation:	Counsel: J Kelton (Crown) E McLoughlin (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission of NSW (Offender)
File Number(s):	2022/00364441
Publication restriction:	Nil