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Andreata v R

Andreata v R

Case [2015] NSWCCA 239 7 September 2015

Sentencing

Breach of Statutory Duty

Cultivation of Prohibited Plants

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Andreata v Regina [2015] NSWCCA 239
Hearing dates: 14 August 2015
Date of orders: 07 September 2015
Decision date: 07 September 2015
Before: Ward JA   at [1]
Adams J   at [2]
Beech-Jones J   at [3]
Decision:
(1)   Leave to appeal be granted.

(2)   Appeal allowed.

(3)   Set aside the sentences imposed by the District Court on 8 July 2014 for the offence of cultivate a prohibited plant and supply a prohibited drug and, in lieu thereof, sentence the applicant as follows:

(a) for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, to a fixed term of imprisonment of 12 months commencing 8 July 2014 and expiring 7 July 2015;
(b) for the offence of cultivate prohibited plant contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985, to a term of imprisonment comprised of a non-parole period of 18 months commencing 8 October 2014 and expiring 7 April 2016 with a balance of term of 18 months commencing 8 April 2016 and expiring on 7 October 2017.
Catchwords: SENTENCE APPEAL – cultivate prohibited plant by enhanced indoor means – supply cannabis – applicant found to have cultivated 61 plants – sentencing judge accepted not principal although did not accept role limited to watering plants – error in stating maximum sentence for supply charge conceded – no error in failing to afford 25% discount for cultivate charge – sentence for cultivate charge manifestly excessive – applicant re-sentenced.
Legislation Cited: - Crimes (Sentencing Procedure) Act 1999 – s 32(1)
- Criminal Appeal Act 1912 – s 6
- Criminal Procedure Act 1986 – s 166
- Drug Misuse and Trafficking Act 1985 – s 23(2), s 25(1), s 32(1), s 33(2)
Cases Cited: - Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Donaghey v R [2015] NSWCCA 119
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v R [2005] HCA 25; 228 CLR 357
- Nguyen v R [2012] NSWCCA 42
- Pham v R [2009] NSWCCA 266
- Portolesi v R [2012] NSWCCA 157
- R v AB [2011] NSWCCA 229; 59 MVR 356
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Thi Lan Nguyen v R [2009] NSWCCA 181
- Tan v R [2013] NSWCCA 164
- Truong v R [2009] NSWCCA 41
- Wong v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Adam Angelo Andreata – Applicant
Regina – Respondent
Representation:
Counsel:
T. Game SC, A. Djemal – Applicant
Ms T. Smith – Respondent
Solicitors:
L. MacDougall – Applicant
Solicitor for…

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 Andreata v R

Details

AGLC: Andreata v R [2015] NSWCCA 239
Case: [2015] NSWCCA 239
Decision Date: 07 September 2015

CaseChat Overview and Summary

Andreata v R involved the appellant, who was found guilty of cultivating a prohibited plant by enhanced indoor means and supplying cannabis. The appeal focused on the sentence imposed by the trial judge. The nature of the dispute centred on whether the sentence was excessive and whether certain errors were made during the sentencing process. The High Court of Australia was tasked with determining these issues.

The legal issues before the court were whether the sentencing judge had erred in determining the maximum penalty for the supply charge, whether there was an error in not applying a 25% discount for the cultivation charge, and whether the sentence for the cultivation charge was manifestly excessive. The court had to examine the principles of sentencing, the application of the relevant legislation, and the proportionality of the sentence.

The court found that while the sentencing judge had accepted that the appellant was not the principal in the cultivation operation, they did not accept that his role was limited to watering the plants. The court acknowledged an error in the maximum penalty stated for the supply charge but held that there was no error in not applying a 25% discount for the cultivation charge. The court concluded that the sentence for the cultivation charge was manifestly excessive and, therefore, re-sentenced the appellant. The court's decision underscored the importance of accurate sentencing and the application of legal principles in criminal cases.

The final orders of the court were to re-sentence the appellant on the cultivation charge, acknowledging the errors identified in the original sentencing process. The court provided a detailed rationale for the new sentence, ensuring that it aligned with the principles of sentencing and the proportionality of punishment.

Orders