KAUWENBERGHS, Tim Leon Mon v R

KAUWENBERGHS, Tim Leon Mon v R - [2009] NSWCCA 201 - NSWCCA 2009 case summary — Zoe

[11]

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.

[13]

(1) Exhibit A: Officer Report form dated 20 June 2008. (2) Exhibit B: Letter from the applicant to New South Wales Ombudsman dated 27 August 2008. (3) Exhibit C: Document from Ombudsman dated 11 August 2008. (4) Exhibit D: Document from Embassy of Belgium to the applicant dated 28 April 2008. (5) Exhibit E: Document from N Gelin, solicitors, to David Barrow, Legal Aid Commission dated 28 April 2009. (6) Exhibit GAD1 - annexed to the Registrar's affidavit. The principles to be applied 8 In Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 this Court (differently constituted) had occasion to deal for the first time with the operation of r 50C of the Criminal Appeal Rules. The operation of the rule commenced on 7 September 2007 (see Criminal Appeal Rules (Amendment No 1) 2007; GG No 116). In Alramadan the Court held that the power to vary or set aside orders made consequent upon an appeal against conviction (or an application for leave to appeal against sentence) is to be understood and applied commensurate with the power the Court has always had under the general law to vary or set aside orders in an appropriate case. The Court also emphasised that after a full hearing on the merits of an appeal against conviction or sentence the circumstances in which further argument should be entertained on an application to vary or set aside its orders are quite limited. In that regard it cited the judgment of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 where his Honour identified the criteria by which an application to re-open a proceeding should be decided. His Honour said: What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. It was this approach which the Court in Alramadan accepted as the proper approach when an application is brought under r 50C of the Criminal Appeal Rules. 9 In applying those principles to this application, the Crown submitted, in our view correctly, that there are three questions that require an affirmative answer before the Court would be entitled to consider varying the orders entered on 29 July 2008.

[23]

(f) A week later, on 20 June 2007, the Registry received a bundle of documents from the applicant under cover of a letter of three pages addressed to " their honourables Justice's of the supreme court of NSW " and attaching a hand written document of 136 pages headed "Appellant's Submissions". Seven numbered grounds of appeal appear on the first page of the submissions under a subheading entitled "Grounds of Appeal". They are set out in full as follows: 1. Due to unprofessional conduct of legal representation Ken Gilson, Fresh/new evidence. The AFP Phone intercepts of my co offender Doran Yona. 2. The learned sentencing Judge erred in finding that my level of participation and the quantities involved put my level of offending at the highest end of the scale. 3. The sentence in all of the circumstances was manifestly excessive. 4. The learned sentencing Judge erred in placing too much weight on my record of previous convictions as an aggravating factor. 5. The learned sentencing Judge erred in not mentioning or giving due consideration that I was in fact an unwilling participant. 6. The learned sentencing Judge erred in failing to give me an appropriate discount for my assistance. 7. I have a justifiable sense of inequality, unfairness, injustice and grievance by nature of the disparity between the sentence imposed upon me and those imposed upon my co-offender, Doran Yona. (g) Immediately prior to the commencement of the hearing of the application for leave to appeal on 4 September 2007, the Registrar informed the applicant of the various documents that had been provided to the Court in preparation for the hearing including, inter alia, the two volumes of the application books prepared by the Commonwealth Director of Public Prosecutions together with his written submissions. 16 Neither the Registrar nor Mr Wigney SC, who appeared for the Crown on the appeal and on the present application, were apparently aware of the discrepancy between the applicant's grounds of appeal, appearing as the facing page to his submissions, and the original grounds of appeal, as they appeared in the application book. To the extent that the applicant was aware of the fact that the original grounds had been included in the appeal books, and that his grounds of appeal had not, he did not draw it to the Court's attention in the hearing. In making that observation no criticism of him is intended. The Court is conscious that he was unrepresented on the appeal and for that reason may not have appreciated that it is the obligation of an applicant for leave to appeal against sentence to invite attention to the precise grounds upon which it is submitted leave should be granted and the appeal allowed. 17 At paragraph 13 of the judgment Fullerton J set out the grounds upon which the application for leave to appeal had been advanced at the hearing, with a view to addressing the grounds of appeal as they crystallised in the course of the argument. This was by reference both to the grounds as they appeared in the application book and those set out on the facing page of the applicant's submissions filed after the application book was settled. It is clear that the precise terms in which Ground 1 of the applicant's grounds of appeal was expressed were not replicated in the judgment and that the applicant's Ground 5 was not identified separately as a ground of appeal. In addition, Ground 6 was nominated as a ground of appeal which the applicant did not include in his grounds of appeal but which appeared as Ground 4 in the original grounds of appeal.

[25]

(1) The incompetence of his legal representation resulted in relevant evidence being withheld from the sentencing judge. (2) The sentencing judge erred in finding the applicant's level of participation in the criminal enterprise and the quantities of drugs involved put his level of offending at the highest end of the scale. (3) The sentences in all of the circumstances were manifestly excessive. (4) The sentencing judge erred in giving undue weight to the applicant's record of previous convictions as an aggravating factor. (5) The sentencing judge erred in failing to give the applicant an appropriate discount for his assistance. (6) The sentencing judge erred in miscalculating the appropriate sentences to give affect to her findings. (7) The applicant has a justifiable sense of grievance by nature of the disparity between the sentence imposed upon him and those imposed upon his co-offender. The discrepancy between the filed grounds of appeal and the grounds of appeal set out in the judgment 19 A comparison between the applicant's grounds of appeal and the original grounds and the grounds as set out in the judgment exposes the extent of the discrepancy. Ground 1 in the judgment is a restatement of the applicant's first ground of appeal. Ground 2 in the judgment equates with the applicant's second ground of appeal (and appears in the original grounds of appeal as Ground 1). Ground 3 in the judgment equates with the applicant's third ground of appeal (and appears in the original grounds of appeal as Ground 2). Ground 4 in the judgment equates with the applicant's fourth ground of appeal (and appears in the original grounds of appeal as Ground 3). Ground 5 in the judgment equates with the applicant's sixth ground of appeal (and appears in the original grounds of appeal as Ground 6). Ground 6 in the judgment was not included in the applicant's grounds of appeal but appears as Ground 5 in the original grounds of appeal. Ground 7 in the judgment equates with the applicant's seventh ground of appeal (and appears in the original grounds of appeal as Ground 6).

[27]

24 The applicant's fifth ground of appeal - namely that the sentencing judge was in error in not giving due consideration to his claim that he was an unwilling participant in the drug trafficking enterprise - was not reproduced in the judgment as a separate ground of appeal. We do not regard the failure to nominate the applicant's fifth ground of appeal in the judgment as a discrete ground of appeal as an error capable of being characterised as a misapprehension of fact for the purposes of this application. However, even if it could be so regarded, the issue as to whether the applicant was a willing or unwilling participant (the sole question raised by Ground 5) was both the subject of submissions by the applicant and was expressly addressed and dealt with in the judgment when consideration was given to the impact of the fresh evidence on the applicant's second ground of appeal, namely his challenge to the sentencing judge's assessment of the level of his participation in the drug trafficking enterprise and in the assessment her Honour made of his objective criminality for sentencing purposes. Reference to the following paragraphs in the judgment make that plain: 52 As I have noted, notwithstanding the fact that her Honour accepted that the applicant acted under duress when he initially agreed with Koen to supply 200,000 of the ecstasy tablets , she was satisfied that over succeeding weeks his role changed to that of an active participant in the supply of drugs for reward . She also concluded that his attitude changed from being a person taking a passive role in compliance with those who had duped him into a proactive role, and that this was evidenced by the fact that he unilaterally determined when and how much of the drug he would supply. She also found he attempted to negotiate a much higher financial reward for himself both from Yona as the person to whom he supplied drugs on 26 and 27 June 2004 and Koen as the person on whose instructions he acted. She described the applicant's role in this context as that of a warehouseman and first-line distributor of the drug rather than a courier or mule. In short, her Honour regarded the offending constituted by the commercial supply counts in counts 4 and 5 on the indictment as at the highest end of the scale of criminality.

[33]

26 The only remaining issue left for consideration on this application is whether the difference in the wording of the first ground of appeal, as it appears at paragraph 13 of the judgment, and the way it appears in the applicant's grounds of appeal, is indicative or suggestive of the fact that the Court considered the application for leave to appeal according to some misapprehension of fact. 27 The Court construed the applicant's first ground of appeal as limited to a complaint about the quality of his legal representation before the sentencing judge due to the failure of his counsel to tender some telephone intercepts, as distinct from the quality of his representation being productive of error in the sentencing exercise in some other way. 28 At the commencement of the hearing of the appeal the Crown consented to the Court receiving the telephone intercepts as fresh evidence. Given the way the applicant expressed the first ground of appeal, we understood that this disposed of that ground of appeal, subject only to the necessity to consider the extent to which the fresh evidence impacted on the findings of the sentencing judge as to the level of the applicant's participation in the criminal enterprise generally, and how this compared with the sentence of his co-offender for parity purposes. 29 The Crown observed that if Ground 1 was considered by the Court as limited to the telephone intercepts, that would be a misapprehension of fact or law. However, the Crown's submission was that, even if there was a misapprehension in that respect, the question then was whether it was a material one. The Crown contended that such a misrepresentation in this case lacked materiality as other matters, in particular, those of delay and parity, were considered by the Court. Accordingly, the Crown's ultimate submission was that the misapprehension in that respect had no bearing upon the Court's approach to the appeal and its determination. 30 We accept that the applicant's written submissions in support of Ground 1, in particular, at pp 6-14 set out a litany of complaints about the quality of his legal representation at the sentencing proceedings extending beyond the failure to tender the full telephone intercepts. He also complains about his counsel's failure to adequately inform her Honour of the reasons for the delay in bringing the sentence proceedings to a conclusion, the harsh conditions of his remand in the interim, and his counsel's failure to consult with him before advancing submissions on sentence, in particular on the issue of parity. 31 However, as the Crown submitted and as discussed below, the issues of delay, the harsh conditions in which the applicant was held in custody and that of parity were dealt with in relation to grounds of appeal other than Ground 1. 32 Dealing first with the issue of delay and the conditions of his remand, it is clear from the sentencing remarks that her Honour took delay and the unusually harsh conditions to which the applicant had been subject as a remand prisoner into account in mitigation of sentence. For this reason we can see no basis for the applicant's claim that his lawyers were incompetent in failing to direct attention to the mitigatory effect of these matters much less that her Honour failed to take account of them. In addition, this Court considered that each of those matters should be afforded weight in the quantification of the discount for the applicant's assistance to the authorities and in the result determined that a discount of 45 per cent should apply. This was dealt with at paragraphs [100] to [102] as follows: 100 While it is true there was no evidence before her Honour that the applicant would be incarcerated in onerous conditions for any nominated or predicted period beyond the date of his sentence because of his assistance, in my view the fact that the applicant was forced to withstand inhumane conditions of incarceration over an extended period prior to sentence, such that his medical condition was exacerbated and his mental functioning compromised, is compelling. I regard this case as legitimately falling within an exceptional class of case where a combined discount of more than 40 per cent should have been allowed, not because of evidence that the applicant will spend his sentence, or a substantial part of it, in more onerous conditions than the general prison population, but because the onerous conditions to which he was subject whilst on remand were directly related to the assistance he offered and the threats to his life that resulted.

[35]

102 By contrast, in the case of this applicant his assistance was significant and all three features were present. For that reason I consider that a combined discount of 40 per cent in respect of counts 1, 2 4 and 5 was inadequate and that a 45 per cent discount should have been allowed. I am not of the view that the combined discount of 60 per cent for count 3 is in the same category, indeed I regard it as generous. 33 In relation to the applicant's complaints about his legal representation, insofar as he complained about what was said to be the paucity of his counsel's submissions on the issue of parity, it is important to observe, as already noted, that this Court dealt with the issue of parity as a separate issue or ground of appeal. For this reason any complaint about the way parity was addressed by the applicant's counsel on sentence was effectively overtaken not only by the Court looking at the issue afresh when considering whether the challenge to the approach taken to parity by the sentencing judge was made out but by the Court ultimately being satisfied that the applicant's sentence was disproportionate to the sentence imposed upon his co-offender and that he would be re-sentenced taking parity considerations into account. The Court dealt with that issue at paragraphs [104] to [109] which are set out below in full: 104 Following his arrest on 28 June 2004, Doran Yona was charged with two offences. The first was laid under the Customs Act (Cth) and concerned his possession of the ecstasy supplied by the applicant on 26 and 27 June 2004 as located by police in the boot of the Holden Commodore parked in the car park at the Swiss Grand Hotel at Bondi Beach on 28 June 2004. He was also charged with money laundering an amount of $1,000,000 contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth). The maximum penalty for the money laundering offence was a fine not exceeding $79,200 or imprisonment for 12 years or both. The maximum penalty for the drug offence was life imprisonment or a fine not exceeding $825,000 or both. The sentencing judge imposed a fixed term of imprisonment of 2 years for the money laundering offence and a term of imprisonment of 5 years and 2 months with a non-parole period of 2 years and 7 months in respect of the drug offence. The sentences were ordered to be served concurrently. His Honour arrived at that sentence after allowing a 60 per cent discount for the combined value in his plea of guilty and assistance to the authorities. From the remarks on sentence it would appear that after assessing the objective seriousness of the drug offence and the offender's role, which his Honour regarded as tangential and marginal, a head sentence of 15 years was considered an appropriate starting point for the calculation of sentence.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (11)