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Kahler v The Queen [2021] NSWCCA 40

The offender was sentenced after a plea of guilty to 1 count of importing a marketable quantity of a border-controlled drug contrary to s 307.2(1) of the Commonwealth Criminal Code. The offence related to 808.6g of pure cocaine. The original sentence imposed 8 years and 9 months imprisonment with a 6-year non-parole period. The offender was sentenced for additional state offences. The offender appealed on the basis that the sentencing judge failed to take into account the offender’s lack of prior criminal antecedents and prior good character and that the sentence was manifestly excessive.  

Antecedents and Character: Sentencing judge made no express reference to lack of prior convictions nor specifically stated that good character was taken into account. It is not clear that failure to refer to these factors should lead to a conclusion that these factors were not given any weight. Given the comprehensive judgment, involving four co-offenders, and that for three of them specific reference was made to good character and presence or absence of criminal record, it should not necessarily be concluded that these matters were ignored in the case of the offender. The strong likelihood is that the sentencing judge did have regard to those matters but omitted to refer to it in the course of what was a complex sentencing exercise involving four co-offenders. Absence of express references took place in relation to offending in circumstances where fact of prior good character is of less weight in the sentencing exercise.  

Nature and Circumstances: Assessment of objective seriousness of offences is an evaluative task which is classically within the discretion of a sentencing judge. The Court is very slow to intervene and determine such matters for itself.  High Court and this Court have warned against using labels to determine the role or importance of the actions of an offender in relation to drug supply and importation. Part played by the offender was significant. The offender was well aware of the amount of cocaine. This was not an impulsive or isolated offence on the part of the offender but had been repeated on earlier occasions. The part played by the offender was fundamental to the importation. Without offender’s physical actions to bring the drugs into Australia, there would be no importation or subsequent distribution. While the sentence is stern, it is not of a level that would suggest a misapplication of principle.  

Leave to appeal against sentence refused.
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