Tiknius v R

Case [2011] NSWCCA 215


Court of Criminal Appeal

New South Wales

Case Title: Tiknius v R
Medium Neutral Citation: [2011] NSWCCA 215
Hearing Date(s): 13 May 2011
Decision Date: 22 September 2011
Jurisdiction:
Before:

Tobias AJA at 1
Johnson J at 2
Hall J at 104

Decision:

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

Legislation Cited:

Criminal Code (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:

R v Liu [2005] NSWCCA 378
El-Charr v R [2007] NSWCCA 16
R v Riddell [2009] NSWCCA 96; 194 A Crim R 524
R v Z [2005] UKHL 22; (2005) 2 AC 467
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Razzak [2006] NSWSC 1366; 166 A Crim R 132
Le v R [2007] NSWCCA 330
R v Abusafiah (1991) 24 NSWLR 531
R v Nguyen [2008] NSWCCA 22; 181 A Crim R 72
R v Oblach [2005] NSWCCA 440; 65 NSWLR 75
R v Lorenz (1998) 146 FLR 369
R v Day [2009] SASC 84
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Taonis (1974) 59 Cr App R 160
R v Tapasa (NSWCCA, 31 October 1997, unreported)
R v N [1999] NSWCCA 187; 106 A Crim R 493
R v Liu [2005] NSWCCA 378
R v Stankovic [2006] NSWCCA 229
R v Huynh [2008] NSWCCA 16
Taiapa v The Queen [2009]…

Continue reading Tiknius v R

Sign in free to access the full text

Details
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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JOHNSON J HALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JOHNSON J, HALL J

Full text does not contain this section.