Criminal law Appeal Sentence Cultivating cannabis with intent 42 plants Prosecution accepted that appellant played limited role Other charges against him withdrawn Then he pleaded guilty Entitled to greater discount for guilty plea than allowed
Legislation:
Nil
Case References:
Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 4 April 1998 R v Bulger [1990] Qd R 559 R v Doyle (1994) 71 A Crim R 360 R v Gray [1977] VR 225 R v Holder [1983] 3 NSWLR 245 Simpson v The Queen (1993) 68 Crim R 439 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Fazari v R, unreported; CCA SCt of WA; Library No 960651; 14 November 1996 Gilbert v R, unreported; CCA SCt of WA; Library No 920164; 27 March 1992 House v The King (1936) 55 CLR 499 Langridge v R (1996) 17 WAR 346; (1996) 87 A Crim R 1 Miles v R (1997) 17 WAR 518 Pizzata v R, unreported; CCA SCt of WA; Library No 930596; 29 October 1993 Poole v R [1999] WASCA 46 R v GP (1997) 18 WAR 196 R v Jankovic (1995) 81 A Crim R 14 R v Liddington (1997) 18 WAR 394 R v Loughnan, unreported; CCA SCt of WA: Library No 4966; 23 June 1983 R v Marchesano (1992) 61 A Crim R 137 R v Phillips, unreported; CCA SCt of WA; Library No 5038; 19 August 1983 R v Stol (1989) 44 A Crim R 137 R v Tait (1979) 46 FLR 386 R v Yanko, unreported; SCt of WA; Library No 960030; 23 January 1996 Weng Keong Chan (1989) 38 A Crim R 337
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ATHOLWOOD -v- R [1999] WASCA 256 CORAM : MALCOLM CJ
IPP J WALLWORK J
HEARD : 21 JULY 1999 DELIVERED : 21 JULY 1999 PUBLISHED : 15 NOVEMBER 1999 FILE NO/S : CCA 66 of 1999 BETWEEN : DAVID JAMES ATHOLWOOD
Appellant
AND
THE QUEEN Respondent
Catchwords:
Criminal law - Appeal - Sentence - Cultivating cannabis with intent - 42 plants - Prosecution accepted that appellant played limited role - Other charges against him withdrawn - Then he pleaded guilty - Entitled to greater discount for guilty plea than allowed
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Sentence reduced
Representation:
Counsel:
Appellant : Mr R Richter QC Respondent : Mr K P Bates & Ms T R Watt
Solicitors:
Appellant : Pryles & Defteros Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kennedy v R, unreported; CCA SCt…
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.
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Details
AGLC
Atholwood v The Queen [1999] WASCA 256
Case
[1999] WASCA 256
Decision Date
CaseChat Overview and Summary
The appellant, Atholwood, appealed against the sentence imposed by the primary judge. Atholwood was convicted of cultivating cannabis with intent, following the discovery of 42 plants in his possession. The prosecution accepted that Atholwood played a limited role in the cultivation. Other charges against him were withdrawn, and Atholwood then pleaded guilty. The appeal centred on the sentence imposed by the trial judge, with Atholwood contending that he was entitled to a greater discount for his early guilty plea than was allowed by the trial judge.
The court was required to determine whether the sentence imposed was appropriate and whether Atholwood was entitled to a greater discount for his guilty plea. The court considered the totality principle, which required it to consider the overall punishment and ensure that the sentence was proportionate to the offending. The court also needed to assess the impact of the appellant's limited role in the offending on the appropriate sentence.
The court found that the sentence imposed by the primary judge was too severe and did not adequately reflect Atholwood's limited role in the offending. The court accepted that Atholwood was entitled to a greater discount for his early guilty plea than was allowed by the trial judge. The court accepted that the totality principle required the sentence to be proportionate to the offending, and that Atholwood's limited role should have been given greater weight in determining the appropriate sentence. The court reduced the sentence and allowed the appeal.