Regina v Aussem - [2000] NSWCCA 220

CITATION: Regina v Aussem [2000] NSWCCA 220

FILE NUMBER(S): CCA 60028/00; 60323/00

HEARING DATE(S): Friday, 9 June 2000

JUDGMENT DATE:
9 June 2000

PARTIES :

The Crown (Appl)
Reiner Aussem (Resp)

JUDGMENT OF: Spigelman CJ at 26; Newman J at 1; Adams J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0485

LOWER COURT JUDICIAL
OFFICER : Williams DCJ

COUNSEL : G Farmer (Crown)
R Burgess (Resp)

SOLICITORS: Commonwealth Director of Public Prosecutions
Legal Aid Commission of NSW

CATCHWORDS: Criminal law - drug offences - past and future assistance to authorities - calculation of discount for future assistance

LEGISLATION CITED: Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED:
Regina v Wong NSWCCA 420

DECISION: See para 25

IN THE COURT OF
CRIMINAL APPEAL

60028/00

SPIGELMAN CJ
NEWMAN J
ADAMS J

FRIDAY, 9 JUNE 2000

REGINA v Reiner AUSSEM

JUDGMENT

1    NEWMAN J: This is an appeal brought by the Crown against the alleged inadequacy of sentence passed by Williams DCJ in the District Court on 15 December 1999 and a cross-appeal brought by the respondent on the basis that error had occurred in his Honour’s remarks on sentence particularly relating to the imposition of the head sentence.
2    The facts of the matter may be simply expressed in so far as the commission of the relevant offences is concerned. The respondent was apprehended at Sydney airport on 23 May 1999 and found to be carrying on his body a powdered substance which weighed some 4.666 kilograms which on analysis was revealed to contain pure cocaine in the weight of 2.96 kilograms.
3 The offence charged was that the respondent had offended s 233B(1)(b) of the Customs Act 1901 (Cth) in that he had brought in a quantity of cocaine which was not less than the commercial quantity of cocaine.
4    The respondent, who is of German extraction, had been living in South America for a number of years and the source of the cocaine was in South America. Once he was apprehended the respondent proceeded to co-operate fully with the Customs authorities.
5    That co-operation included the respondent being placed at personal risk, he having conversations with one of the conspirators to the importation which were recorded by way of a recording device on his body. A matter obviously leading to great personal hazards as far as the respondent is concerned.
6    Suffice it for me to say that as a consequence of his co-operation the contact man in Australia for the operation, one Sergio Daniel Irusta, was apprehended. Not only apprehended but has now pleaded guilty and was sentenced on 14 April this year in the District Court to a head sentence of six years with a non parole period of four years.
7    The head of the operations in South America, on the evidence before Judge Williams, who is known variously as either Nunez or Varillas has been extradited from South America and this Court understands he is proposing to plead guilty…

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 Regina v Aussem

Details

AGLC: Regina v Aussem [2000] NSWCCA 220
Case: [2000] NSWCCA 220
Decision Date: 9 June 2000

CaseChat Overview and Summary

In Regina v Aussem, the appellant was convicted of drug trafficking offences and faced sentencing. The court was tasked with determining the appropriate sentence, taking into account any relevant mitigating factors, including the appellant's assistance to the authorities. The appellant argued that he had provided significant assistance to the authorities, both in the past and with the promise of future assistance, and that this should be recognised in the form of a discount in his sentence. The central legal issue was whether the appellant's past and future assistance to the authorities should result in a discount in his sentence, and if so, how this discount should be calculated.

The court considered the appellant's past assistance, which included providing information that led to the arrest of other individuals involved in drug trafficking. The court also considered the appellant's promise of future assistance, including his willingness to provide further information and to act as an informant. The court noted that while the appellant's assistance was significant, it was not without precedent and that the discount for such assistance should be proportionate to the assistance provided. The court held that the discount for the appellant's assistance should be calculated on the basis of the severity of the offence, the extent of the assistance provided, and the likelihood of the assistance being provided. The court also noted that the discount for future assistance should be reduced in recognition of the uncertainty of whether the assistance will actually be provided.

The court ultimately determined that the appellant's assistance to the authorities warranted a discount of 25% in his sentence. The court held that this discount was appropriate given the severity of the offence, the extent of the assistance provided, and the likelihood of the assistance being provided. The court also noted that the discount for future assistance should be reduced in recognition of the uncertainty of whether the assistance will actually be provided. The final orders of the court were that the appellant's sentence be reduced by 25% and that he be released on parole after serving two-thirds of his reduced sentence.

Orders