REGINA v KALDOR [2004] NSWCCA 425

REGINA v KALDOR [2004] NSWCCA 425

By majority, the indictment sufficiently charged importation under s233B(1)(b) and the allegation that the appellant procured Gurvich under s11.2 was a particular that could be disregarded as surplusage without unfairness. The circumstantial evidence, especially the appellant's apparent willingness to bring the guitar into Australia without inquiry, his conduct in leaving Gurvich to collect and take the guitar through Customs, and the substantial heroin concealed in it, permitted the jury to be satisfied beyond reasonable doubt that he knew of the narcotics. The original sentence was manifestly inadequate given the gravity and quantity of heroin imported.

Jurisdiction
Australia
Judgment Date
29 November 2004
Procedural Posture
Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court
Outcome
Appeal against conviction dismissed. Crown appeal against sentence allowed.
Legal Topics
['importation of Heroin' 'circumstantial Evidence' 'unreasonable Verdict' 'indictment' 'accessory Liability' 'innocent Agency' 'manifest Inadequacy of Sentence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['importation of Heroin' 'circumstantial Evidence' 'unreasonable Verdict' 'indictment' 'accessory Liability' 'innocent Agency' 'manifest Inadequacy of Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court

Legal Issues

  1. 1 ["Whether the verdict was unreasonable or could not be supported having regard to the evidence of the appellant's knowledge that the guitar contained heroin." 'Whether the indictment was adequate where it alleged procuring the commission of an offence by David Israel Gurvich although the Crown case was that Gurvich was an innocent agent.' 'Whether the sentence imposed in the District Court was manifestly inadequate.']

Ratio Decidendi

By majority, the indictment sufficiently charged importation under s233B(1)(b) and the allegation that the appellant procured Gurvich under s11.2 was a particular that could be disregarded as surplusage without unfairness. The circumstantial evidence, especially the appellant's apparent willingness to bring the guitar into Australia without inquiry, his conduct in leaving Gurvich to collect and take the guitar through Customs, and the substantial heroin concealed in it, permitted the jury to be satisfied beyond reasonable doubt that he knew of the narcotics. The original sentence was manifestly inadequate given the gravity and quantity of heroin imported.

Court Disposition

Appeal against conviction dismissed. Crown appeal against sentence allowed.

Orders

  • ['The appellant is sentenced to imprisonment for 7 years to date from 29 January 2004.' 'A non-parole period of 4 years is fixed.']