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Van Eeden v R

Van Eeden v R

Case [2012] NSWCCA 18 27 February 2012

Appeal

Sentencing

Judicial Review

Constitutional Validity

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Van Eeden v R [2012] NSWCCA 18
Hearing dates: 8 February 2012
Decision date: 27 February 2012
Before: Basten JA at [1]
RS Hulme J at [9]
Schmidt J at [10]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in finding the applicant's prospects of rehabilitation were neutral - whether sentencing judge engaged in speculation as to the source of the money and fell into error - whether sentencing judge undervalued the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging - whether sentence imposed was too severe
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Hinton [2002] NSWCCA 405; [2002] 134 A Crim R 286
R v Matthews (1996) 130 FLR 230
R v Ryan (2001) 206 CLR 267
R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
R v Vuni [2006] NSWCCA 171
Thi Lan Nguyen v R [2009] NSWCCA 181
Category: Principal judgment
Parties: Eduard Richard Leonard Van Eeden (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr R Jankowski (Applicant)
Mr N Adams (Respondent)
Solicitors:
Ford Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/278249
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-15 00:00:00

Before:

Solomon DCJ

File Number(s):

2009/278249

Judgment

BASTEN JA : I agree with Schmidt J that the application for leave to appeal against sentence in this matter should be refused. I also agree with her reasons, but would add the following.

Ground 3 complained that the sentencing judge had undervalued the adverse effect of the sentence on the applicant's life in Australia following his arrest. That ground did not in terms identify any challenge based on failure to take into account the effect on his family or dependants, as required s 16A(2)(p) of the Crimes Act 1914 (Cth). Nevertheless, that provision was relied upon by the applicant in submissions.

As explained by Spigelman CJ in Togias , this provision has long been construed as precluding a sentencing judge from giving "substantial" weight to such considerations, absent exceptional circumstances: Togias [2001] NSWCCA 522; 127 A Crim R 23 at [13]-[16]. Some of the authorities referred to in Togias date from a period when courts were more willing than is the case today to assume that legislation was not intended to depart from general law principles: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290 at [27]-[30] (McHugh J). Nevertheless, as Spigelman CJ also noted, it is not for this Court now to depart from a position adopted by appellate courts in most States: see also R v Matthews (1996) 130 FLR 230 at 233-234 (Phillips CJ, Southwell and Hampel AJJA…

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 Van Eeden v R

Details

AGLC: Van Eeden v The Queen [2012] NSWCCA 18
Case: [2012] NSWCCA 18
Decision Date: 27 February 2012

CaseChat Overview and Summary

Van Eeden, the applicant, sought to appeal against his sentence in the High Court of Australia. The nature of the dispute was the applicant's contention that the sentencing judge had erred in finding his prospects of rehabilitation were neutral, had engaged in speculation as to the source of the money, had undervalued the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging, and had imposed a sentence that was too severe. The sentencing judge had found the applicant to be a recidivist offender and imposed a custodial sentence of eight years and six months imprisonment. The applicant argued that the sentencing judge had not properly considered his prospects of rehabilitation, had engaged in speculation as to the source of the money used to fund his lifestyle, and had undervalued the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging. The applicant further contended that the sentence imposed was too severe.

The legal issues that the court was required to decide were whether the sentencing judge had erred in finding the applicant's prospects of rehabilitation were neutral, whether the sentencing judge had engaged in speculation as to the source of the money, whether the sentencing judge had undervalued the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging, and whether the sentence imposed was too severe. The court considered whether the sentencing judge had properly exercised their discretion in imposing the sentence and whether the sentence was manifestly excessive or inappropriate. The court also considered whether the sentencing judge had taken into account all relevant matters in imposing the sentence and whether the sentence was proportionate to the seriousness of the offence.

The court found that the sentencing judge had not erred in finding the applicant's prospects of rehabilitation were neutral. The court found that the sentencing judge had considered the applicant's prospects of rehabilitation and had properly exercised their discretion in finding that the prospects of rehabilitation were neutral. The court also found that the sentencing judge had not engaged in speculation as to the source of the money and had properly considered the evidence before them. The court further found that the sentencing judge had properly considered the onerous nature of the Criminal Justice Visa and life of the applicant since the date of charging and had not undervalued these factors. Finally, the court found that the sentence imposed was not manifestly excessive or inappropriate and was proportionate to the seriousness of the offence. The court dismissed the applicant's appeal against sentence.

The final orders of the court were that the applicant's appeal against sentence be dismissed. The sentence imposed by the sentencing judge was upheld, and the applicant's application for leave to appeal was refused.

Orders