REGINA v. KENDALL [2002] NSWCCA 79

REGINA v. KENDALL [2002] NSWCCA 79

Because the sentencing judge had sentenced the applicant and Antecki on the basis of their relative culpability, and this Court had already upheld Antecki's appeal and reduced his sentence as manifestly excessive, the applicant would have a reasonably based and justifiable sense of grievance if relief were refused. The notice of abandonment was therefore set aside, time and leave were granted, the appeal was upheld, and the applicant was re-sentenced to preserve the proper relativity with the co-offender.

Jurisdiction
Australia
Judgment Date
19 March 2002
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Application to Set Aside Notice of Abandonment, Extension of Time, Leave to Appeal and Appeal Against Sentence
Outcome
Notice of abandonment set aside; extension of time granted; leave to appeal granted; appeal upheld; sentences below set aside; applicant re-sentenced.
Legal Topics
['armed Robbery' 'parity or Relativity Between Co Offenders' 'manifestly Excessive Sentence' 'notice of Abandonment' 'extension of Time to Appeal' 'leave to Appeal Against Sentence' 'form 1 Matters' 'non Parole Period' 'special Circumstances']
['criminal Law' 'sentencing' 'criminal Appeals'] ['armed Robbery' 'parity or Relativity Between Co Offenders' 'manifestly Excessive Sentence' 'notice of Abandonment' 'extension of Time to Appeal' 'leave to Appeal Against Sentence' 'form 1 Matters' 'non Parole Period' 'special Circumstances']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Application to Set Aside Notice of Abandonment, Extension of Time, Leave to Appeal and Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the applicant should be permitted to proceed with the appeal despite a notice of abandonment and out of time.' "Whether the sentences should be set aside on parity grounds in light of the Court of Criminal Appeal's reduction of the co-offender's sentence as manifestly excessive." 'How the substituted sentences should be structured to preserve the appropriate relativity between the applicant and his co-offender.']

Ratio Decidendi

Because the sentencing judge had sentenced the applicant and Antecki on the basis of their relative culpability, and this Court had already upheld Antecki's appeal and reduced his sentence as manifestly excessive, the applicant would have a reasonably based and justifiable sense of grievance if relief were refused. The notice of abandonment was therefore set aside, time and leave were granted, the appeal was upheld, and the applicant was re-sentenced to preserve the proper relativity with the co-offender.

Court Disposition

Notice of abandonment set aside; extension of time granted; leave to appeal granted; appeal upheld; sentences below set aside; applicant re-sentenced.

Orders

  • ['Set aside the Notice of Abandonment.' 'Grant extension of time to appeal.' 'Grant leave to appeal.' 'Uphold the appeal.' 'Set aside the sentences imposed in the District Court.' 'On each of counts one to nine, sentence the applicant to four years imprisonment by way of fixed term, concurrent, dating from 29...