Kwon v R

Case [2011] NSWCCA 58


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kwon, Joseph v R [2011] NSWCCA 58
Hearing dates:4 February 2011
Decision date: 30 March 2011
Before: Whealy JA at 1
Hulme J at 2
Harrison J at 11
Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords: 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
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Diesing v R [2007] NSWCCA 326
Fina'i v R [2006] NSWCCA 134
GAC v R [2007] NSWCCA 287; (2007) 178 A Crim R 1
Cicekdag v R [2007] NSWCCA 218
Graham v R [2008] NSWCCA 174
Heron v R [2006] NSWCCA 215
Jimmy v R [2010] NSWCCA 60; (2010) 269 ALR 115
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Melikian v R [2008] NSWCCA 156
Phipps v R [2008] NSWCCA 178
Postiglione v The Queen [1997] HCA 26; (1997) 198 CLR 295
R v Attard [2004] NSWCCA 376
R v Chan [1999] NSWCCA 103
R v Choi [2010] NSWCCA 318
R v Dang [2005] NSWCCA 430
R v Gao [2007] NSWCCA 343
R v Green and Quinn [2010] NSWCCA 313
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Kairouz [2005] NSWCCA 247
R v Scott [2005] NSWCCA 152
R v Shi [2004] NSWCCA 135
Saad v R [2007] NSWCCA 98
Shen v R [2009] NSWCCA 251
Stoeski v R [2008] NSWCCA 230
Tan v R [2010] NSWCCA 207
Category:Principal judgment
Parties: Joseph Kwon (Applicant)
Regina (Respondent)
Representation: 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

  1. WHEALY JA : I agree with Harrison J.

  1. 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.

  1. 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.

  1. 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…

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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.

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

HULME J HARRISON J

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Ratio Decidendi

Legal Principle Established

Established by: HULME J, HARRISON J

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