KAUWENBERGHS, Tim Leon Mon v R (Cth) [2009] NSWCCA 201

New South Wales Court of Criminal Appeal

CITATION: KAUWENBERGHS, Tim Leon Mon v R (Cth) [2009] NSWCCA 201

HEARING DATE(S): 29 April 2009

JUDGMENT DATE: 19 August 2009

JUDGMENT OF: Beazley JA; Hall J; Fullerton J

DECISION: The application to vary the orders of the Court entered on 29 July 2008 is dismissed.

CATCHWORDS: CRIMINAL LAW - Criminal Appeal Rules - application to vary court's orders

Criminal Appeal Rules LEGISLATION CITED: Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985

CASES CITED : Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300

PARTIES: Tim Leon Mon Kauwenberghs (App) The Crown (Cth)

FILE NUMBER(S): CCA 2006/4850

COUNSEL: Applicant in person MA Wigney SC (Resp)

SOLICITORS: Applicant in person Commonwealth Director of Public Prosecutions (Resp)

- 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/4850

BEAZLEY JA HALL J FULLERTON J

19 AUGUST 2009 TIM LEON MON KAUWENBERGHS v R JUDGMENT 1 THE COURT: On 14 July 2008 this Court granted the applicant leave to appeal against sentence imposed in the District Court on 5 May 2006 following pleas of guilty to an indictment containing five counts. Two counts were laid contrary to s 233B(1)(ca) of the Customs Act 1901 (Cth), each of which concerned the applicant's possession of commercial quantities of ecstasy, and three counts laid contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 each of which concerned the applicant's supply of commercial quantities of ecstasy ([2008] NSWCCA 98). 2 The appeal was allowed and the applicant was re-sentenced. The orders of the Court were entered in the Registry on 29 July 2008. 3 This is an application to vary those orders as provided for in rule 50C(2) of the Criminal Appeal Rules. The applicant represented himself at the hearing of the appeal and on the present application. 4 Rule 50C provides as follows: 50C Power to set aside or vary order (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order. 5 The applicant did not file a notice of motion or affidavit in support of the application. His correspondence dated 11 and 13 August 2008 and 11 September 2008, following publication of the judgment of the Court, was treated as an application to vary the orders entered on 29 July 2008 and the grounds upon which the application was based. Having regard to the date of the correspondence and the matters raised in it, the Crown accepted that the application was made within 14 days of the orders being entered, as provided for in r 50C(2), and that the power to entertain the application was thereby enlivened.