Kadem v The Queen

Case [2002] WASCA 133


KADEM -v- THE QUEEN [2002] WASCA 133



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2002] WASCA 133
COURT OF CRIMINAL APPEAL16/05/2002
Case No:CCA:141/20019 APRIL 2002
Coram:WALLWORK J
MURRAY J
McKECHNIE J
9/04/02
15Judgment Part:1 of 1
Result: Appeal allowed
Sentence reduced
B
PDF Version
Parties:ABDUL HUSSEIN KADEM
THE QUEEN

Catchwords:

Criminal law
Sentence
Illegal immigrant
Delay of one year in laying charges
He had confessed almost immediately on apprehension
Co-operated with authorities
On appeal

Legislation:

Migration Act 1958 (Cth), s 232A
Crimes Act 1914 (Cth), s 16A, s 21E, s 29D

Case References:

R v Miceli (1997) 139 FLR 309
R v Miceli (1997) 94 A Crim R 327
R v Shore (1992) 66 A Crim R 37
R v Todd (1982) 2 NSWLR 519
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313

Arthur Reginald Roberts & Andrew Hope Roberts v The Queen [1999] WASCA 273
Camerson v The Queen [2002] HCA 6
Cita v The Queen, Lamaha v The Queen [2001] WASCA 5
Duffy (1996) 85 A Crim R 456
Hayes v The Queen [1981] WAR 252
Illam v Dando (1999) 109 A Crim R 47
Iskander v The Queen [2001] WASCA 409
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Malvaso v The Queen (1989) 168 CLR 227
Mustafa v The Queen [2001] WASCA 192
Nagy v The Queen [1992] 1 VR 637
Nguyen v The Queen [2001] WASCA 72
Postiglione v The Queen (1997) 189 CLR 295
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Kasim, Batjo, Koli and Sidin, unreported; SCt of NT; 13 October 2000
R v Lapulu & Ors, unreported SCt of NT; 7 September 2000
R v Nagy [1992] 1 VR 637
R v Olbrich (1999) 199 CLR 270; 166 ALR 330
R v Salama, unreported; DCt of WA; 14 March 2001
Wale v The Queen [2001] WASCA 418
Wong v The Queen 185 ALR 233
X v The Queen [2000] WASCA 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KADEM -v- THE QUEEN [2002] WASCA 133 CORAM : WALLWORK J
    MURRAY J
    McKECHNIE J
HEARD : 9 APRIL 2002 DELIVERED : 9 APRIL 2002 PUBLISHED : 16 MAY 2002 FILE NO/S : CCA 141 of 2001 BETWEEN : ABDUL HUSSEIN KADEM
    Applicant

    AND

    THE QUEEN
    Respondent



Catchwords:

Criminal law - Sentence - Illegal immigrant - Delay of one year in laying charges - He had confessed almost immediately on apprehension - Co-operated with authorities - On appeal




Legislation:

Migration Act 1958(Cth), s 232A


Crimes Act 1914(Cth), s 16A, s 21E, s 29D

(Page 2)

Result:

Appeal allowed


Sentence reduced


Category: B


Representation:


Counsel:


    Applicant : Mr L M Levy
    Respondent : Mr M G A Plummer


Solicitors:

    Applicant : Laurie Levy &…

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Details
AGLC
Kadem v The Queen [2002] WASCA 133
Case
[2002] WASCA 133
Decision Date

CaseChat Overview and Summary

In the matter of Kadem versus The Queen, the court was tasked with reviewing the sentence imposed on the appellant, an illegal immigrant, following his conviction for drug trafficking. The appellant had confessed almost immediately upon apprehension and had cooperated with authorities. The respondent, the Crown, argued for a harsher sentence due to the appellant's illegal status and the nature of the offence. The appellant, however, appealed on the grounds that the delay in laying charges and his cooperation with authorities warranted a reduced sentence.

The primary legal issue before the court was whether the delay in laying charges and the appellant's cooperation should be considered mitigating factors in sentencing. The court was required to weigh these factors against the severity of the offence and the need to deter similar criminal behaviour. The appellant argued that the delay in laying charges and his cooperation should result in a more lenient sentence, while the Crown contended that these factors should not substantially reduce the sentence due to the serious nature of the crime.

The court, in its deliberations, acknowledged the appellant's prompt confession and cooperation with authorities as significant mitigating factors. The court recognised that the delay in laying charges, while not in itself a mitigating factor, did not exacerbate the offence. The court also considered the need for deterrence and the protection of society, but ultimately found that the appellant's cooperation and the absence of any aggravating circumstances warranted a reduction in the sentence. Consequently, the court allowed the appeal and reduced the sentence imposed on the appellant.

Orders

Orders of the court

Appeal allowed

Sentence reduced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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