Kwok v R [2018] NSWCCA 200

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kwok v R [2018] NSWCCA 200 Hearing dates: 7 September 2018 Date of orders: 21 September 2018 Decision date: 21 September 2018 Before: Ward JA at [1] Bellew J at [2] Beech-Jones J at [67] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – Sentence – Appeal – Accumulation of sentences – Where applicant appeared for sentence in respect of separate counts of manufacturing a prohibited drug and supplying a prohibited drug – Where the sentencing judge ordered partial accumulation – Where applicant argued that sentences ought to have been wholly concurrent because one offence comprehended the other – Separate and distinct offending – Partial accumulation within the proper exercise of sentencing discretion – No error established

CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed on a co-offender – Where the findings of the sentencing judge as to the greater role played by the applicant in comparison with that co-offender were warranted on the evidence – No error established

CRIMINAL LAW – Sentence – Appeal – Parity – Whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender – Where that co-offender had asked the sentencing judge to take into account an additional offence – Where the submissions made on behalf of the applicant attempted to estimate the percentage of the sentence imposed which was referable to the additional offence – Such approach contrary to principle and authority – No error established Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Attorney General's application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244 Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Kerr v R [2016] NSWCCA 218 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 R v Lamella [2014] NSWCCA 122 Wan v R [2017] NSWCCA 261 Category: Principal judgment Parties: Yuk Ho Kwok – Applicant Regina – Respondent Representation: Counsel: G Wendler – Applicant L Crowley – Respondent