R v Kendall - [2002] NSWCCA 79

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. KENDALL [2002] NSWCCA 79

FILE NUMBER(S):
No. 60026 of 2002

HEARING DATE(S): Tuesday 19 March 2002

JUDGMENT DATE: 19/03/2002

PARTIES:
REGINA v.
KENDALL, Jojo

JUDGMENT OF: Greg James J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/3160

LOWER COURT JUDICIAL OFFICER: Sides, DCJ.

COUNSEL:
Crown: L.M.B. Lamprati
App: C.B. Craigie, SC.

SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS:
Criminal law - appeal - parity or relativity between co-offender - notice of abandonment to be set aside in light of decision of CCA in co-offender's appeal - conceded basis for re-sentencing.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act

DECISION:
Set aside the Notice of Abandonment; grant extension of time to appeal; grant leave to appeal; uphold the appeal; set aside the sentences below and in lieu thereof sentence the applicant as follows - on each of counts one to nine, to sentences of four years imprisonment each by way of fixed term, those sentences being concurrent and to date from 29.10.99 and to expire on 28.10.03. On count 10, being the count on which the matters in the Form 1 are to be taken into account, the applicant should be sentenced to a term of imprisonment cumulatively on the sentences imposed on counts one to nine, of four years and nine months to commence 29.10.03 with a non-parole period of nine months to commence from 29.10.03, whereby the applicant would become eligible for release on parole on 28.7.04.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60026 of 2002
GREG JAMES, J.
BUDDIN, J.
TUESDAY 19 MARCH 2002

REGINA v. JOJO KENDALL

Judgment

GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the District Court of New South Wales for various offences of armed robbery. There were 10 counts of armed robbery on indictment, and on a Form 1 document there were contained 10 further counts for offences of armed robbery and for three offences of attempted armed robbery. The applicant had pleaded guilty to each count on the indictment and sought that those on the Form 1 document be taken into account on sentence.
The sentences that were imposed on counts one to nine in the indictment comprised sentences of five years imprisonment, in each case to be served by way of fixed terms, each to commence on 29 October 1999 and to expire on 28 October 2004. On count 10 a sentence of imprisonment for five years was imposed, to commence on 29 October 2004. That sentence thus was cumulated on the sentences imposed on counts one to nine and on this sentence the trial judge took into account the matters on the Form 1. His Honour imposed a non-parole period of 12 months to commence on 29 October 2004 and to expire on 28 October 2005. There was thus, effectively, an overall sentence of 10 years, with a six year non-parole period.
The offences were committed in…

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 R v Kendall

Details

AGLC: R v Kendall [2002] NSWCCA 79
Case: [2002] NSWCCA 79
Decision Date: 19 March 2002

CaseChat Overview and Summary

In the matter of the Crown versus Kendall, the respondent, the parties involved were the Crown as the appellant and the respondent, Kendall, as the respondent. The nature of the dispute in this case was a criminal appeal concerning the sentence imposed on Kendall following his conviction for armed robbery. The court that heard the appeal was the court of criminal appeal. The legal issues that the court was required to decide related to the principle of parity or relativity between co-offenders and the appropriate sentence to be imposed on Kendall. The court was also required to consider the notice of abandonment of the appeal that was previously filed by the respondent's legal representative.

The court's reasoning and outcome in this case involved a thorough examination of the principle of parity or relativity between co-offenders. The court held that the principle of parity or relativity required that the sentences imposed on co-offenders should be proportionate to their respective roles in the crime. The court also held that the notice of abandonment of the appeal should be set aside in light of the decision of the court of criminal appeal in the co-offender's appeal. The court further held that the appropriate sentence to be imposed on Kendall should be re-considered in light of the concession made by the Crown that the sentence imposed was manifestly excessive.

As a result of the court's reasoning and outcome, the final orders made in this case were that the notice of abandonment of the appeal was set aside, and the sentence imposed on Kendall was quashed. The matter was remitted to the sentencing court for re-sentencing, taking into account the principle of parity or relativity between co-offenders and the concession made by the Crown. The court also noted that the re-sentencing should be conducted by a different judge to ensure impartiality.

Orders