Daw v R

Case [2017] NSWCCA 327 21 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Daw v R [2017] NSWCCA 327
Hearing dates: 27 November 2017
Date of orders: 21 December 2017
Decision date: 21 December 2017
Before: Basten JA at [1];
Bellew J at [25];
Hamill J at [61]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Asserted failure on the part of the sentencing judge to observe principles of parity – Where all offenders sentenced by the same judge – Where differences in sentences explicable by reference to the differing levels of criminality and the differing subjective circumstances of the offenders – No error established
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited: Afu v R [2017] NSWCCA 246
Cameron v R [2017] NSWCCA 229
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Miles v R [2017] NSWCCA 266
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Ramos v R [2015] NSWCCA 313
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Category: Principal judgment
Parties: Kylie Ann Daw – Applicant
Regina – Respondent
Representation:
Counsel:
A Francis – Applicant
B Baker – Respondent
Solicitors:
Bannisters Solicitors – Applicant
Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2013/240468
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 February 2016

Before:

Sides QC DCJ

File Number(s):

2013/240468

Judgment

BASTEN JA: The applicant, Kylie Ann Daw, sought leave to appeal from a sentence imposed on her by Sides QC DCJ in the District Court at Parramatta on 11 February 2016. A notice of application for leave to appeal was filed on 3 October 2017.
Although there were two grounds of appeal, they did not raise independent issues. Each sought to compare the sentences and criminality of the applicant and a co-offender, Brad Kowalin. The applicant was charged with three offences; Kowalin with one principal offence. The offence for which Kowalin entered a plea of guilty was the supply of 6 kilograms of methylamphetamine, being a large commercial quantity of the drug; the applicant was charged with being knowingly concerned in the supply of the same quantity.
The first ground of appeal alleged that the judge had erred in concluding that Kowalin’s criminality “was less than the applicant’s because his was ‘an isolated aberration’ and the drugs were ‘not being stored or processed in his garage’.” The second ground alleged an unjustified disparity in that the sentence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daw v R

Details

AGLC: Daw v R [2017] NSWCCA 327
Case: [2017] NSWCCA 327
Decision Date: 21 December 2017

CaseChat Overview and Summary

The case of Daw v R involved the appellant, Daw, applying for leave to appeal against his sentence. The nature of the dispute was that Daw contended that the sentencing judge had failed to observe the principles of parity in sentencing. All offenders had been sentenced by the same judge and Daw argued that the differences in sentences could not be justified by the differing levels of criminality and subjective circumstances of the offenders. The case was heard in the High Court of Australia.

The central legal issue for the court to decide was whether the sentencing judge had erred in sentencing by not adhering to the principles of parity. Daw argued that his sentence was harsher than that of other offenders who had committed similar offences, despite the differences in their subjective circumstances. The court needed to determine if the differences in sentences were explicable and whether any error had been established.

The High Court found that the sentencing judge had not erred in sentencing. The differences in sentences were explicable by reference to the differing levels of criminality and the differing subjective circumstances of the offenders. The court held that there was no basis for concluding that the sentencing judge had failed to observe the principles of parity. Consequently, the court dismissed Daw's application for leave to appeal against his sentence.

The final orders of the court were that the application for leave to appeal against sentence was dismissed. The High Court found no error in the sentencing judge's approach and upheld the original sentence imposed on Daw.

Orders