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18
Court of Criminal Appeal 28 June 2004

R v KEVENAAR & ORS

[2004] NSWCCA 210

Also reported as 148 A Crim R 155
Drugs

Citation: R v Kevenaar & Ors [2004] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 28 June 2004
Judge(s): Hulme J (principal judgment); Simpson J and Howie J (agreeing)

Background

Three Dutch nationals pleaded guilty in the District Court to attempting to possess a commercial quantity of MDMA (ecstasy) imported into Australia in contravention of the Customs Act 1901. The drugs, totalling nearly 49,000 tablets containing approximately 5,988 grams of pure MDMA with an estimated street value of around $50 per tablet, had been intercepted by Dutch and Australian authorities before a controlled delivery was arranged to one of the respondents at a Sydney hotel on 17 September 2002.

The three respondents occupied different roles in the operation. Two of them (Kevenaar and Dedoes) were found by the sentencing judge to be peripheral participants, recruited from the Netherlands essentially as low-level couriers. The third (Pan) played a more significant role, acting as a "minder" and facilitator, trusted by those higher in the hierarchy to oversee the others and ensure the drugs reached the street market.

Acting Judge Mahoney sentenced the respondents in December 2003. The Crown appealed on the basis that the sentences were manifestly inadequate and that the sentencing judge had made a number of errors in arriving at them.

  • Whether the sentences imposed by Acting Judge Mahoney were manifestly inadequate for offences of this nature and scale
  • Whether the sentencing judge erred in his assessment of the starting points for each offender
  • Whether the discounts applied for guilty pleas and assistance to authorities were excessive
  • How the principle of parity between co-offenders should operate when resentencing on a Crown appeal
  • What weight should be given to subjective factors, including personal background, rehabilitation, and the proximity of non-parole period expiry, when resentencing on a Crown appeal

Decision

Hulme J, with Simpson J and Howie J agreeing, upheld the Crown appeal and found the original sentences manifestly inadequate. The Court identified several errors in the sentencing judge's approach, including starting points that were too low and discounts that were excessive, particularly in the case of Kevenaar where the total reduction exceeded 57% of the starting point.

In resentencing, the Court adopted a starting point of 12 years for Kevenaar and Dedoes, reflecting their similar and relatively peripheral roles. For Pan, whose greater involvement as a coordinator and minder warranted a higher starting point, the Court set a starting point of 13 years and 8 months. These figures were then reduced to account for guilty pleas and cooperation with authorities.

The Court acknowledged the difficult position created by the fact that Kevenaar's original non-parole period was due to expire imminently. Hulme J exercised the discretion available on Crown appeals to impose sentences at the lower end of the appropriate range, rather than the middle, given this circumstance and the interests of the respondents. The resulting sentences were nonetheless substantially higher than those originally imposed.

On parity, the Court considered that Pan's greater role justified a proportionally higher sentence than his co-offenders, even though some allowance was made for consistency in approach. Hulme J noted some doubt as to whether the original sentencing judge's differentiation between Pan and the others had adequately reflected the true difference in their roles.

Orders Made

  • The appeal was allowed
  • The sentences imposed on all three respondents were quashed
  • Kevenaar was resentenced to 7 years imprisonment with a non-parole period of 4 years and 6 months, commencing 17 September 2002
  • Dedoes was resentenced to 7 years and 9 months imprisonment with a non-parole period of 5 years, commencing 17 September 2002
  • Pan was resentenced to 11 years imprisonment with a non-parole period of 7 years, commencing 17 September 2002
  • The legal advisors for the parties were directed to explain the purpose and consequences of the orders to the respondents, as required by s 16F of the Crimes Act 1914 (Cth)

Key Takeaways

  • Starting points of 12 to 14 years were applied for commercial-quantity MDMA importation offences, even for participants at or near the lower levels of the criminal hierarchy, reflecting the gravity of large-scale drug trafficking
  • A total discount exceeding 57% of the starting point was found to be manifestly excessive, even when combining a guilty plea discount with a substantial cooperation discount
  • The Court of Criminal Appeal confirmed that, on a Crown appeal, the court retains a discretion to impose sentences at the lower end of the appropriate range where the circumstances of the respondents (such as the imminent expiry of a non-parole period) warrant it
  • Parity between co-offenders remains relevant on resentencing, but a co-offender's more significant organisational role justifies a meaningfully higher sentence, even where the absolute difference in roles may be difficult to quantify precisely
  • Subjective factors such as deprived background, poor education, limited prior criminal history, and genuine rehabilitation are recognised in mitigation, but do not displace the need for sentences that reflect the objective gravity of commercial drug importation

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c) (offence of possessing prohibited imports, including narcotic goods at or above commercial quantity)
- Crimes Act 1914 (Cth), s 16F (obligation to explain orders to offenders)

Cases: No specific cases were identified in the portions of the judgment provided.