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Court of Criminal Appeal 14 July 2008

KAUWENBERGHS, Tim Leon Mon v R (Cth)

[2008] NSWCCA 98

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCES OFFENDER WHETHER SENTENCES MANIFESTLY EXCESSIVE CONSIDERATIONS OF PARITY

Citation: KAUWENBERGHS, Tim Leon Mon v R (Cth) [2008] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 14 July 2008
Judges: Beazley JA, Hall J, Fullerton J

Background

The appellant pleaded guilty in the District Court to five counts arising from his involvement in a major commercial ecstasy distribution operation in mid-2004. The charges included possession of commercial quantities of MDMA reasonably suspected of having been imported (under Commonwealth law) and three counts of supplying commercial quantities of ecstasy (under State law). The drugs involved were substantial: over 16 kilograms of ecstasy on one count alone, with the total seized drugs estimated to have a street value of approximately $9.4 million.

In May 2006, the District Court imposed sentences that included 16 years imprisonment with a 10-year non-parole period on the principal Commonwealth count, and 22 years and 4 months with a 14-year non-parole period on the most serious State count. The appellant, who appeared in person on appeal, challenged those sentences on several grounds, including that fresh evidence about his role relative to a co-offender undermined the sentencing judge's findings, that the sentences were manifestly excessive, and that insufficient discount was given for his assistance to authorities.

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part, quashing and re-sentencing on four of the five counts.

  • Whether fresh evidence regarding the appellant's role relative to a co-offender undermined the sentencing judge's findings on objective criminality
  • Whether the original sentences were manifestly excessive
  • How a combined discount for assistance to authorities, conditions of custody, and a guilty plea should be calculated and applied
  • Whether parity considerations were engaged given the co-offender's sentence
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and additional term

Decision

The Court accepted that fresh evidence about the appellant's role relative to his co-offender was relevant and warranted reconsideration of the sentences. On the principal Commonwealth count (Count 1), the Court calculated a starting point of 22 years imprisonment and applied a 45 per cent combined discount, reflecting the appellant's assistance to authorities, guilty plea, conditions of custody, and related factors. This produced a sentence of 12 years and 1 month, with an 8-year non-parole period in line with the accepted 60 to 66 per cent ratio applicable in Commonwealth matters.

For the State offences, the Court assessed Count 4 as the most serious and treated the appellant's offending as falling within the mid-range. The Court identified prior criminal history and participation in an organised criminal enterprise as aggravating factors, while crediting assistance to authorities, the guilty plea, remorse, and the low likelihood of reoffending as mitigating factors. These considerations justified departing from the standard non-parole period of 15 years otherwise applicable to commercial drug supply.

The Court also found that the conditions of the appellant's custody warranted a finding of special circumstances, justifying a departure from the standard statutory ratio between the non-parole period and the balance of term under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. This finding applied across the relevant State counts. The sentence on Count 2 was not disturbed.

Orders Made

  • Leave to appeal against the sentences granted.
  • Appeal allowed in part; sentences on Counts 1, 3, 4, and 5 quashed and replaced as follows:
  • Count 1: 12 years and 1 month imprisonment (calculated from a 22-year starting point with a 45% discount applied); non-parole period of 8 years, commencing 28 June 2004, expiring 27 June 2012.
  • Count 4: Non-parole period of 9 years commencing 28 June 2004, balance of term of 5 years; special circumstances found.
  • Count 3: Non-parole period of 5 years commencing 28 June 2004, balance of term of 20 months; Form 1 offence taken into account.
  • Count 5: Non-parole period of 6 years commencing 28 June 2004, balance of term of 2 years.
  • First date eligible for release on parole: 27 June 2013.

Key Takeaways

  • Fresh evidence about an offender's role relative to a co-offender can be sufficient to reopen and revise findings on objective criminality at a sentencing appeal, even where the original findings were not themselves erroneous on the material then available.
  • A combined discount of 45 per cent was applied to reflect assistance to authorities, guilty plea, and conditions of custody, illustrating how these factors may be assessed together rather than as discrete, sequential reductions.
  • Under Commonwealth sentencing principles, an accepted ratio of 60 to 66 per cent applies between the total term of imprisonment and the non-parole period, absent specific grounds to depart.
  • Special circumstances sufficient to displace the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may be established by the conditions of an offender's custody, separate from the traditional rehabilitation-based analysis.
  • Parity between co-offenders remained a live consideration in the re-sentencing exercise, reinforcing that sentences for participants in the same criminal enterprise should reflect their relative culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Chu [1998] NSWSC 568
- R v El-Hani [2004] NSWCCA 162
- R v Ellis (1986) 6 NSWLR 603
- R v Formosa [2005] NSWCCA 363
- R v Moore [2005] NSWCCA 212
- R v Peel (1971) 1 NSWLR 247
- R v Prasad [2004] NSWCCA 293; 147 A Crim R 385
- R v Shepherd [2003] NSWCCA 287; 142 A Crim R 101
- R v Shi [2004] NSWCCA 135
- R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
- R v To [2007] NSWCCA 200; 172 A Crim R 121
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249
- Wong v R [2001] HCA 64; 207 CLR 584