Leave to appeal against sentence granted. Sentences imposed at the Sydney District Court on 6 November 2009 quashed. On the second count, the Applicant is sentenced to imprisonment for five years commencing on 23 January 2008 and expiring on 22 January 2013. On the first count, the Applicant is sentenced to imprisonment for eight years commencing on 23 January 2009 and expiring on 22 January 2017. Pursuant to s.19AB Crimes Act 1914 (Cth) , a single non-parole period of five years is fixed, commencing on 23 January 2008 and expiring on 22 January 2013. The Applicant will be eligible for release on parole on 23 January 2013.
Catchwords:
CRIMINAL LAW - sentence - pleas of guilty - aid and abet importation of commercial quantity of border controlled drug (amphetamine) - possession of unlawfully imported marketable quantity of border controlled drug (MDMA) - findings by sentencing Judge that Applicant subject to threats of harm to self and girlfriend unless he became involved in offences - Applicant an educated Lithuanian with no criminal history - whether adequate weight given to finding of duress on sentence - relevance of non-exculpatory duress as a factor on sentence - need to assess seriousness of offences in light of findings of duress - need to consider form and duration of criminal conduct, nature of threats made and opportunities available to Applicant to report matter to relevant authorities - importance of general deterrence - error established - Applicant resentenced
[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.
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AGLC
Tiknius v R [2011] NSWCCA 215
Case
[2011] NSWCCA 215
Decision Date
CaseChat Overview and Summary
In the case of Tiknius v R, the applicant, Tiknius, was convicted of aiding and abetting the importation of a commercial quantity of the border-controlled drug amphetamine and of possessing an unlawfully imported marketable quantity of the border-controlled drug MDMA. Tiknius, a Lithuanian national with no prior criminal history, pleaded guilty to the charges. The sentencing judge found that Tiknius had been subjected to threats of harm to himself and his girlfriend if he did not participate in the offences. The applicant appealed against his sentence, arguing that the sentencing judge did not adequately weigh the findings of duress in determining his sentence.
The legal issues before the court were whether the sentencing judge gave adequate weight to the findings of duress and whether non-exculpatory duress should be considered as a factor in sentencing. The court had to assess the seriousness of the offences in light of the findings of duress, taking into account the form and duration of the criminal conduct, the nature of the threats made, and the opportunities available to Tiknius to report the matter to the relevant authorities. The court also had to consider the importance of general deterrence.
The court found that the sentencing judge did not adequately weigh the findings of duress in determining Tiknius's sentence. The court held that non-exculpatory duress should be considered as a factor in sentencing, particularly in assessing the seriousness of the offences. The court emphasised the need to consider the nature of the threats made, the opportunities available to the offender to report the matter to the relevant authorities, and the importance of general deterrence. The court held that the sentencing judge erred in not giving adequate weight to the findings of duress and that Tiknius should be re-sentenced.
The court ordered that Tiknius be re-sentenced, taking into account the findings of duress and the factors identified by the court. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the offences in light of the findings of duress and that it adequately balances the need for general deterrence with the circumstances of the offender.