Kwok v R

Case [2018] NSWCCA 200 21 September 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kwok v R [2018] NSWCCA 200
Hearing dates: 7 September 2018
Date of orders: 21 September 2018
Decision date: 21 September 2018
Before: Ward JA at [1]
Bellew J at [2]
Beech-Jones J at [67]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – Sentence – Appeal – Accumulation of sentences – Where applicant appeared for sentence in respect of separate counts of manufacturing a prohibited drug and supplying a prohibited drug – Where the sentencing judge ordered partial accumulation – Where applicant argued that sentences ought to have been wholly concurrent because one offence comprehended the other – Separate and distinct offending – Partial accumulation within the proper exercise of sentencing discretion – No error established

CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where the findings of the sentencing judge as to the greater role played by the applicant in comparison with that co-offender were warranted on the evidence – No error established
CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender – Where that co-offender had asked the sentencing judge to take into account an additional offence – Where the submissions made on behalf of the applicant attempted to estimate the percentage of the sentence imposed which was referable to the additional offence – Such approach contrary to principle and authority – No error established
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Attorney General’s application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of
2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
Kerr v R [2016] NSWCCA 218
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
R v Lamella [2014] NSWCCA 122
Wan v R [2017] NSWCCA 261
Category: Principal judgment
Parties: Yuk Ho Kwok – Applicant
Regina – Respondent
Representation:
Counsel:
G Wendler – Applicant
L Crowley – Respondent
Solicitors:
Chess Legal Pty Limited – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2013/185155
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 August 2016

Before:

Judge Lakatos SC

Judgment

WARD JA: I agree with Bellew J.
BELLEW J: On 23 July 2014 Yuk Ho Kwok (“the applicant”) pleaded guilty in the Local Court to the following offences:

between…

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 Kwok v R

Details

AGLC: Kwok v The Queen [2018] NSWCCA 200
Case: [2018] NSWCCA 200
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the case of Kwok v R, the applicant appealed against his sentence, arguing that the sentences imposed for separate counts of manufacturing and supplying a prohibited drug should have been wholly concurrent. The sentencing judge had ordered a partial accumulation of the sentences. The applicant contended that one offence comprehended the other and therefore the sentences should not have been cumulative at all. The High Court of Australia reviewed the appeal to determine whether the sentencing judge's decision to partially cumulate the sentences was an error.

The legal issues before the court included whether the sentencing judge correctly exercised his discretion in ordering a partial accumulation of sentences, and whether the applicant had a justifiable sense of grievance given the disparity between his sentence and that of his co-offender. The court considered whether the sentences should have been wholly concurrent, given the argument that one offence comprehended the other. Additionally, the court assessed the applicant's claim of parity with his co-offender in light of the different roles each played in the criminal activities.

The court found that the sentencing judge's decision to partially cumulate the sentences was within the proper exercise of his discretion. The court held that the offences were separate and distinct, justifying the partial accumulation. Furthermore, the findings of the sentencing judge regarding the applicant's greater role compared to his co-offender were supported by the evidence, thereby negating the applicant's claim of unjustifiable grievance. The court also noted that the applicant's approach to estimating the portion of the co-offender's sentence attributable to an additional offence was contrary to established principles and authority.

The High Court of Australia dismissed the appeal, upholding the original sentence. The court held that there was no error in the sentencing judge's decision to partially cumulate the sentences or in the assessment of the applicant's sense of grievance in relation to his co-offender's sentence. The applicant's arguments did not establish a basis for overturning the sentence imposed.

Orders