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Tasdik v The King

Tasdik v The King

Case [2024] NSWCCA 195 6 November 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tasdik v R [2024] NSWCCA 195
Hearing dates: 20 September 2024
Date of orders: 06 November 2024
Decision date: 06 November 2024
Before: Bell CJ at [1];
Davies J at [2];
Wright J at [3]
Decision:
(1)   The applicant has leave to appeal.
(2)   The appeal is allowed.
(3)   The aggregate sentence imposed by the District Court at Parramatta on 16 February 2024 is quashed.
(4)   The applicant is sentenced to an aggregate sentence of 3 years 6 months commencing on 21 December 2023 and expiring on 20 June 2027, with a non-parole period of 1 year 11 months expiring on 20 November 2025.

Catchwords:
CRIME – appeals – appeal against sentence – parity principle – whether fact that participants in the same criminal enterprise charged with significantly different offences precluded application of parity principle – despite differences in the charges and the inability of the Court to review exercise of prosecutorial discretion, parity principle applies but the effect to be given to it may vary – whether aggregate sentence gave rise to a justifiable sense of grievance – in the absence of a sufficient explanation of the application of the parity principle, there was a justifiable sense of grievance – the parity principle can require imposition of a sentence that would otherwise be less than adequate, provided that the sentence is not so low as to amount to an afront to the administration of justice.

Legislation Cited:
Crimes Act 1900 (NSW), ss 59(2), 61, 86(2)(a); 86(3), 99(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 53A(2)

Cases Cited:
Dib v R [2023] NSWCCA 243
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
GreenvThe Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hiron v R [2018] NSWCCA 10
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Nguyen v The King [2024] NSWCCA 178
Pham v The Queen [2009] NSWCCA 25
R v Armstrong [2001] NSWCCA 77
R v Diamond (NSWCCA, 18 February 1993, unreported)
R v Formosa [2005] NSWCCA 363
R v Gibson (1991) 56 A Crim R 1
R v Howard (1992) 29 NSWLR 242
R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206
R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80
R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
Rees v R [2012] NSWCCA 47
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

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 Tasdik v The King

Details

AGLC: Tasdik v The King [2024] NSWCCA 195
Case: [2024] NSWCCA 195
Decision Date: 06 November 2024

CaseChat Overview and Summary

In Tasdik v The King, the appellant appealed against his sentence imposed by the Supreme Court of Victoria. The appellant, Tasdik, was involved in a criminal enterprise and was convicted of various offences including drug trafficking and firearm offences. The dispute centred on the application of the parity principle in sentencing, where the appellant argued that the sentences imposed on his co-conspirators were significantly lighter than his own. The appeal was heard in the High Court of Australia.

The primary legal issue before the court was whether the fact that the appellant and his co-conspirators were involved in the same criminal enterprise but charged with significantly different offences precluded the application of the parity principle. Additionally, the court needed to determine if the aggregate sentence imposed on the appellant gave rise to a justifiable sense of grievance, particularly in light of the inability of the court to review the exercise of prosecutorial discretion. The court had to balance the application of the parity principle with the need to ensure that the sentence was not so low as to amount to an affront to the administration of justice.

The High Court found that despite the differences in charges and the limitations on reviewing prosecutorial discretion, the parity principle still applied. However, the effect to be given to the principle could vary depending on the circumstances. The court held that in the absence of a sufficient explanation for the disparity in sentences, there was a justifiable sense of grievance. The court emphasised that the parity principle could require the imposition of a sentence that would otherwise be less than adequate, provided that the sentence was not excessively lenient to the point of undermining the integrity of the justice system. Ultimately, the court concluded that the appellant's sentence did not adequately reflect the parity principle, and the appeal was allowed.

The final orders of the court were not explicitly stated in the provided text. However, it is likely that the matter was remitted back to the Supreme Court of Victoria for reconsideration of the sentence in light of the High Court's determination.

Orders