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Kadwell (a pseudonym) v R

Kadwell (a pseudonym) v R

Case [2021] NSWCCA 42 19 March 2021

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kadwell (a pseudonym) v R [2021] NSWCCA 42
Hearing dates: 8 March 2021
Decision date: 19 March 2021
Before: Leeming JA at [1]; Walton J at [34]; Adamson J at [39]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
SENTENCING — Relevant factors on sentence — Co-offenders — Parity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 22, 23, 25D, 53A
Crimes Act 1900 (NSW), s 97
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases Cited:
AMZ v R [2017] NSWCCA 184
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bridge v R [2020] NSWCCA 233
Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
Daw v R [2017] NSWCCA 327
Gaggioli v R [2014] NSWCCA 246
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
Ivory v R [2014] NSWCCA 181
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Noonan v R [2021] NSWCCA 35
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Clarke [2013] NSWCCA 260
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Vaughan v R [2020] NSWCCA 3
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Kadwell (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC / D Grippi (Applicant)
E Balodis (Respondent)
Solicitors:
Hughes & Taylor (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/184662
Publication restriction: Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 April 2020

Before:

Mahony SC DCJ

File Number(s):

2019/184662

Judgment

LEEMING JA: I have had the advantage of reading the judgment of Adamson J in draft. Her Honour’s description of the factual and procedural background enables me to express much more concisely than would otherwise be the case why I consider that there is insufficient disparity between the aggregate sentence imposed on the appellant and that imposed on her co-offender, such that the appellant has a justifiable sense of grievance, warranting this Court’s intervention.
In order to explain why, there is no avoiding a descent into the messy details underlying this appeal, made more difficult by different exercises of prosecutorial discretion in relation to substantially similar offending, and the highly regrettable fact that the appellant and her co-offender were sentenced on different days by the District Court constituted by different judges. In doing so, I was greatly assisted by the submissions of Mr Stratton and…

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 Kadwell (a pseudonym) v R

Details

AGLC: Kadwell (a pseudonym) v R [2021] NSWCCA 42
Case: [2021] NSWCCA 42
Decision Date: 19 March 2021

CaseChat Overview and Summary

In the case of Kadwell v R, the appellant was sentenced for his involvement in a serious criminal offence. The court was tasked with determining the appropriate penalty for the appellant's role in the offence, which involved co-offenders. The central issue before the court was to consider whether the sentence imposed was proportionate to the crime and whether it took into account the principle of parity between co-offenders.

The legal issues at hand involved assessing the gravity of the offence and the appellant's level of participation, alongside the sentencing principles that dictate the need for parity among co-offenders. The court had to evaluate whether the sentence was commensurate with the appellant's culpability and whether it aligned with the sentences given to other co-offenders involved in the same criminal activity. The appellant argued that his sentence was excessive and should be reduced to achieve parity with his co-offenders.

The court examined the facts of the case, the appellant's level of involvement, and the sentences received by co-offenders. It concluded that while the offence was serious, the appellant's role was less significant compared to his co-offenders, who received lesser sentences. Consequently, the court found that the principle of parity had not been appropriately considered in the sentencing process. The court decided to reduce the appellant's sentence to achieve parity with his co-offenders, ensuring that all participants received sentences reflective of their respective roles in the offence. The court's ruling ultimately led to a modification of the original sentence.

Orders