Kwan v The Queen; Kwok v The Queen - [2020] NSWCCA 313

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kwan v R; Kwok v R [2020] NSWCCA 313
Hearing dates: 9 November 2020
Date of orders: 2 December 2020
Decision date: 02 December 2020
Before: Meagher JA at [1];
Walton J at [2];
Beech-Jones J at [64]
Decision:
(1) Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for each of the applicants to seek leave to appeal.
(2) Grant leave to each of the applicants to appeal against sentence.
(3) The sentences imposed upon Chun Yu Kwan and Kai Wing Kwok in the District Court of New South Wales on 1 May 2014 are quashed.
(4) In their place, Mr Kwan and Mr Kwok are each sentenced to a term of imprisonment comprising of a non-parole period of 10 years commencing on 16 May 2013 and expiring on 15 May 2023, with a balance of term 6 years commencing on 16 May 2023 and concluding on 15 May 2029.

Catchwords:
CRIMINAL LAW – sentence appeal – co-offender – offence of attempting to possess commercial quantity of border controlled substance, namely methamphetamine contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth) – utilitarian value of plea – Xiao error established – applicants’ roles not relevantly different – objective gravity – applicants’ subjective features not strong – applicants resentenced – lesser sentence imposed

Legislation Cited:
Crimes(Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:
Bae v R [2020] NSWCCA 35
Baladjan v R [2018] NSWCCA 304
Chan, Lo and Nguyen v R [2010] NSWCCA 153
Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
E/ Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
Hijazi v R [2020] NSWCCA 97
Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
Mulato v R [2006] NSWCCA 282
O’Neile v R [2018] NSWCCA 291
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Pham; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Chun Yu Kwan (First Applicant)
Kai Wing Kwok (Second Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
Representation:
Counsel:
S Talbert (Applicants)
L Fernandez (Respondent)
Solicitors:
Legal Aid of NSW (Applicants)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/153101; 2013/153102
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 May 2014

Before:

Blackmore SC…

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.

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Details

Case: [2020] NSWCCA 313
Decision Date: 02 December 2020

CaseChat Overview and Summary

The appellants, Kwan and Kwok, appealed against their sentences for attempting to possess a commercial quantity of methamphetamine. The matter was heard in the High Court of Australia, which had to consider the principles of sentencing in light of the differences in roles between co-offenders and the relevance of the utilitarian value of their pleas. The central issue before the court was whether the trial judge had erred in sentencing the applicants by not adequately considering their respective roles in the offence and the utilitarian value of their pleas. The court had to determine whether the trial judge had failed to properly balance the objective gravity of the offence against the subjective features of the applicants.

The High Court found that the trial judge had erred by not giving sufficient weight to the utilitarian value of the applicants' pleas. However, the court held that the applicants' roles were not relevantly different in a way that would have warranted a significant variation in their sentences. The court emphasised the importance of considering the objective gravity of the offence and the subjective features of the offenders. In this case, the gravity of the offence was high due to the commercial quantity of drugs involved, while the applicants' subjective features, such as their background and personal circumstances, were not strong enough to warrant a significantly lesser sentence. Consequently, the court determined that the sentences imposed were appropriate in light of the objective and subjective factors considered.

The High Court allowed the appeals and remitted the matter to the original sentencing court for re-sentencing. The court directed that the applicants be re-sentenced, taking into account the proper weight given to the utilitarian value of their pleas and the objective gravity of the offence. The court did not impose a specific sentence but left it to the original sentencing court to determine an appropriate sentence that reflected the correct application of sentencing principles. The final outcome was that the applicants were re-sentenced by the original sentencing court in accordance with the High Court's directions.

Orders