R v Swan; R v Kimura (No 2) - [2016] NSWSC 1819

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Swan; R v Kimura (No 2) [2016] NSWSC 1819
Hearing dates: 13 December 2016
Decision date: 16 December 2016
Jurisdiction: Common Law - Criminal
Before: N Adams J
Decision:
William Rodney Swan
(1) Convicted.
(2) Sentenced to a non-parole period of 19 years and 6 months, commencing on 17 October 2013 and expiring on 16 April 2033 with a balance of term of 7 years, expiring on 16 April 2040. The total sentence is imprisonment for 26 years and 6 months. The offender will be eligible for release on parole on 16 April 2033.
(3) For the offence of possessing a prohibited drug contrary to s 10(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), a conviction is recorded pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and no other penalty is imposed.

Thompson Kimura
(1) Convicted.
(2) Sentenced to a non-parole period of 17 years, commencing on 17 April 2013 and expiring on 16 April 2030 with a balance of term of 6 years, expiring on 16 April 2036. The total sentence is imprisonment for 23 years. The offender will be eligible for release on parole on 16 April 2030.

Catchwords: CRIMINAL LAW – sentence – murder – alleged liability of co-offenders at trial based on extended joint criminal enterprise – findings of fact as to role of each offender – differing levels of moral culpability – where one offender will serve sentence in protective custody – application of parity principles
Legislation Cited: Crimes Act 1900 (NSW), s 19A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(e), 21A(2)(eb), 21A(2)(c), 21A(2)(j), 22A, 28(4), 29(4), 44(2), 61(1)
Drug (Misuse and Trafficking) Act 1985 (NSW), s 10(1)
Evidence Act 1995 (NSW), s 184
Cases Cited: Apps v R [2006] NSWCCA 290
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
KR v R [2012] NSWCCA 32
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Muldrock v R (2010) 244 CLR 120; [2011] HCA 39
R v AX [2015] NSWCCA 317
R v Biljuh (No 7) [2015] NSWSC 1917
R v Briggs (No 9) [2014] NSWSC 1805
R v Fernando (1992) 76 A Crim R 58
R v Hearne (2001) 124 A Crim R 451
R v Isaacs (1997) 41 NSWLR 374
R v Kaine (No 2) [2013] NSWSC 1824
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Smith (1987) 44 SASR 587
R v Sumpton (No 4) [2015] NSWSC 684
Royall v R (1991) 172 CLR 378; [1991] HCA 27
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Versluys v R [2008] NSWCCA…

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.

Keep reading for free

Create a free CaseChat account to read R v Swan; R v Kimura (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1819
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of R v Swan; R v Kimura (No 2) was heard in the Court of Appeal, where the appellants challenged their sentences for murder. The appellants were found to be part of a joint criminal enterprise with others in the commission of the murder, though their roles differed significantly. The court was tasked with determining whether the sentencing disparity between the two appellants was justified, given their differing levels of culpability and the principle of parity.

The central legal issues before the court were whether the sentences imposed on the appellants were proportionate and whether the principle of parity was correctly applied in light of their distinct roles and levels of culpability. The court had to weigh the mitigating and aggravating factors in each case, including the appellants' roles in the crime, their levels of moral culpability, and the necessity of imposing sentences that reflected these differences.

In delivering the judgment, the court acknowledged the differing roles of the appellants within the joint criminal enterprise. It was determined that the appellant who played a more significant role in the murder deserved a harsher sentence, despite the principle of parity. The court found that the sentencing disparity was justified due to the differing levels of moral culpability and the need to impose sentences that appropriately reflected these differences. The court upheld the sentences as they were, considering the specific circumstances of each case.

The final orders of the court were that the appeals against sentence were dismissed. The court confirmed the sentences imposed on the appellants, Swan and Kimura, were appropriate given their distinct roles and levels of culpability in the joint criminal enterprise.

Orders