Kadwell (a pseudonym) v R

Case [2021] NSWCCA 42


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

  1. 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.

  2. 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…

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

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

Orders of the court

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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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