CRIMINAL LAW - appeal against sentence - grounds for interference - whether error in assessing objective seriousness of offences as falling "just below the mid range" - whether failure to give proper effect to a finding of special circumstances - whether sentence manifestly excessive - parity between co-offenders - no error established - leave to appeal granted - appeal dismissed
Counsel: G Thomas (Applicant) P Ingram SC (Respondent) Solicitors: S Kavanagh, Solicitor for Public Prosecutions (Respondent)
File Number(s):
2009/131094
Decision under appeal
Before:
Williams DCJ
File Number(s):
2009/131094
Judgment
WHEALY JA : I agree with Harrison J.
HULME J : In this matter I have had the advantage of reading the reasons for judgment of Harrison J. Subject to the following matters I agree with his Honour's remarks.
I do not feel able to agree with his Honour's conclusion that when the sentence imposed on the Applicant for his second offence is compared with that imposed on Mr Choi, considerations of parity do not require that the sentence imposed on the Applicant be reduced.
As Harrison J has pointed out, there were differences - to the disadvantage of the Applicant - in their offending, role and activities in relation to this second offence and Mr Choi was charged with the, in its terms, less serious offence of knowingly take part in the supply. However the difference in their sentences was too great to…
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
AGLC
Kwon v R [2011] NSWCCA 58
Case
[2011] NSWCCA 58
Decision Date
CaseChat Overview and Summary
The appellant, Kwon, was convicted of two counts of intentionally causing grievous bodily harm. The case came before the court on an appeal against sentence. The prosecution sought to have the appeal dismissed, contending that no ground for interference had been established. The appeal hinged on the assessment of the objective seriousness of the offences, the consideration of special circumstances, and the parity between co-offenders. The appellant argued that the sentence was manifestly excessive, and that the trial judge failed to properly account for the special circumstances found.
The court examined the grounds for interference with the sentence, focusing on whether the trial judge erred in assessing the objective seriousness of the offences, whether the special circumstances were given proper effect, and whether the sentence was manifestly excessive. The court considered the principles of sentencing and the need for parity between co-offenders. Ultimately, the court determined that no error was established in the trial judge's assessment of the objective seriousness of the offences or in the consideration of the special circumstances. The court also found that the sentence was not manifestly excessive and that there was no need for parity between co-offenders.
Having found no error in the trial judge's assessment or consideration of the special circumstances, the court dismissed the appeal. The court did, however, grant leave to appeal, acknowledging that the issues raised were of significant public importance. The court's decision underscores the importance of accurately assessing the objective seriousness of offences and properly considering special circumstances in sentencing. The court's dismissal of the appeal highlights the principle that sentences should not be interfered with lightly, and that the trial judge's assessment of the objective seriousness of offences and consideration of special circumstances should be given due deference.