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 181Category: 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…
Continue reading Van Eeden v R
Sign in free to access the full text
- AGLC
- Van Eeden v The Queen [2012] NSWCCA 18
- Case
- [2012] NSWCCA 18
- Decision Date
CaseChat Overview and Summary
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
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.