KAUWENBERGHS, Tim Leon Mon v R (Cth) [2008] NSWCCA 98

New South Wales Court of Criminal Appeal

CITATION: KAUWENBERGHS, Tim Leon Mon v R (Cth) [2008] NSWCCA 98

HEARING DATE(S): 4 September 2007

JUDGMENT DATE: 14 July 2008

JUDGMENT OF: Beazley JA at 1; Hall J at 2; Fullerton J at 3

1. Leave to appeal against the sentences is granted. 2. The appeal allowed in part. The sentences imposed on 5 May 2006 in respect of counts 1, 3, 4 and 5 are quashed and in lieu thereof the applicant is sentenced as follows: (a) In respect of count 1 on the indictment, sentence is calculated from a starting point of 22 years. After applying a discount of 45 per cent, the applicant is sentenced to a term of imprisonment of 12 years and 1 month. There being no basis to depart from the accepted ratio of 60 – 66 per cent between the term of imprisonment and the non-parole period in Commonwealth matters, a non-parole period of 8 years is imposed. I direct that the sentence commence on 28 June 2004 with the non-parole period commencing on that date and expiring on 27 June 2012 the date upon which the applicant is eligible for release on parole. DECISION: (b) In respect of count 4 on the indictment (objectively the most serious of the three State offences and reflecting a degree of criminality relative to the first Commonwealth offence), I consider that in light of all of the circumstances in which the applicant came to supply Yona with the drugs in his possession, his offending is in the mid range. After taking into account the applicant's previous record (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act) and the fact that his activity was part of an organised criminal enterprise (s 21A(2)(n)) as aggravating factors and his assistance to the authorities (s 21A(3)(m)), his plea of guilty (21(A)(3)(k)) his remorse (s 21A(3)(i)) and the fact that he is unlikely to re-offend (s 21A(3)(g)) as mitigating factors, there are sound reasons for not imposing the standard non-parole period of 15 years. The applicant is sentenced to a non-parole period of 9 years commencing on 28 June 2004 with a balance of term of 5 years. I am satisfied that the conditions of the applicant's custody warrant a finding of special circumstances such as to justify a departure from the statutory ratio between the non-parole period and the additional term as specified in s 44(2) of the Crimes (Sentencing Procedure) Act. (c) In respect of count 3 on the indictment, and for the reasons specified when imposing the sentence on count 4 above and in addition for his disclosure of his offending to police, I impose a non-parole period of 5 years commencing on 28 June 2004 with a balance of term of 20 months. I have taken into account the offence on the Form 1 in the calculation of this sentence. (d) In respect of count 5 on the indictment, again for the reasons specified above as justifying a departure from the standard non-parole period of 15 years, I impose a non-parole period of 6 years commencing on 28 June 2004 with a balance of term of 2 years. 3. The first date upon which the applicant will be eligible for release on parole will be 27 June 2013.