Kwan v R; Kwok v R [2020] NSWCCA 313

Kwan v R; Kwok v R [2020] NSWCCA 313

The sentencing judge erred by not allowing a discount for the utilitarian value of the applicants' plea of guilty. The appropriate discount for the pleas entered at committal was 25%. Accordingly, the Court was required to exercise the sentencing discretion afresh and resentence both applicants, taking into account the seriousness of the offence, objective and subjective circumstances, and established principles. A total sentence of 16 years’ imprisonment with a non-parole period of 10 years was appropriate.

Jurisdiction
Australia
Judgment Date
02 December 2020
Procedural Posture
Criminal / Appeal Against Sentence; Application for Extension of Time and for Leave to Appeal Sentence
Outcome
Appeals allowed; sentences imposed by the District Court quashed; applicants resentenced
Legal Topics
['sentence Appeal' 'attempting to Possess Commercial Quantity of Border Controlled Substance' 'utilitarian Value of Plea' 'discount for Plea of Guilty' 'objective Seriousness' 're Sentencing']
['criminal Law'] ['sentence Appeal' 'attempting to Possess Commercial Quantity of Border Controlled Substance' 'utilitarian Value of Plea' 'discount for Plea of Guilty' 'objective Seriousness' 're Sentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal / Appeal Against Sentence; Application for Extension of Time and for Leave to Appeal Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to allow a discount for the utilitarian value of the applicants' plea of guilty in sentencing for a Commonwealth drug offence"]

Ratio Decidendi

The sentencing judge erred by not allowing a discount for the utilitarian value of the applicants' plea of guilty. The appropriate discount for the pleas entered at committal was 25%. Accordingly, the Court was required to exercise the sentencing discretion afresh and resentence both applicants, taking into account the seriousness of the offence, objective and subjective circumstances, and established principles. A total sentence of 16 years’ imprisonment with a non-parole period of 10 years was appropriate.

Court Disposition

Appeals allowed; sentences imposed by the District Court quashed; applicants resentenced

Orders

  • ['Pursuant to Criminal Appeal Act 1912 (NSW), s 10(1)(b), extend the time for each of the applicants to seek leave to appeal.' 'Grant leave to each of the applicants to appeal against sentence.' 'The sentences imposed upon Chun Yu Kwan and Kai Wing Kwok in the District Court of New South Wales on 1 May 2014 are...