Burrows v The The Queen - [2022] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burrows v R [2022] NSWCCA 32
Hearing dates: 7 February 2022
Decision date: 25 February 2022
Before: Leeming JA at [1];
Rothman J at [55];
Harrison J at [56].
Decision:
1. Extend the time for filing a notice of appeal to 1 September 2021.
2. Grant leave to appeal.
3. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – cultivation of indictable quantity and commercial quantity of cannabis – further offences of supply and proceeds of crime taken into account – inferences available from acknowledgement of guilt to further offences – whether error in finding that cash found on premises was proceeds of sale of cannabis – whether error in characterising offending as “small cottage industry” or “small commercial enterprise” – whether sentence manifestly excessive

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 33, 44, 53A
Criminal Appeal Act 1912 (NSW), s 5, 10
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 23(2)(a), 32, 33

Cases Cited:
Crowley v R [2017] NSWCCA 99
Kresovic v R [2018] NSWCCA 37
R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Roberts [2011] NSWDC 212
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Category: Principal judgment
Parties: Glenn Burrows (Applicant)
The Crown (Respondent)
Representation:
Counsel:
B Cochrane (Applicant)
A Morris (Respondent)
Solicitors:
Bolt Findlay Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00106470
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 February 2021

Before:

McLennan SC DCJ

File Number(s):

2019/00106470

Judgment

LEEMING JA: The applicant, Mr Glenn Burrows, seeks leave to appeal from the sentence of 3½ years imprisonment, with a non-parole period of 20 months, imposed by the District Court following his guilty pleas to a number of offences associated with the cultivation of cannabis.
The applicant pleaded guilty to one count of cultivating a prohibited plant, namely 39 cannabis plants, contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period (s 32(1)(h)).
The applicant also pleaded guilty to one count of cultivating a number of prohibited plants, namely 82 cannabis plants, which was not less than the commercial quantity applicable to that prohibited plant, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act. A commercial quantity of cannabis for the purposes of this count, where the cultivation was by enhanced indoor means, is 50 plants. That offence carries a maximum penalty of 15 years imprisonment with no standard non-parole period (s 33(2)(b)).
Two further offences were taken into account on a “Form 1” in imposing sentencing on the second count, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely:

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 Burrows v The The Queen

Details

AGLC: Burrows v The The Queen [2022] NSWCCA 32
Case: [2022] NSWCCA 32
Decision Date: 25 February 2022

CaseChat Overview and Summary

The parties involved in the case were the appellant, Burrows, and the respondent, The Queen. The dispute pertained to an appeal against the sentence handed down to the appellant for cultivating an indictable and commercial quantity of cannabis, alongside additional offences of supply and proceeds of crime. The appeal was heard in the High Court of Australia. The legal issues that required resolution were whether the trial judge had erred in drawing inferences from the appellant's admission of guilt to additional offences, if there was an error in concluding that the cash found on the premises was the proceeds of cannabis sales, and whether the trial judge mischaracterised the offending as a "small cottage industry" or "small commercial enterprise." Furthermore, the court needed to determine if the sentence imposed was manifestly excessive.

The court examined the trial judge's inferences from the appellant's admission of guilt to the additional offences, considering the totality of the evidence and the credibility of the witnesses. The court found no error in the trial judge's approach, holding that the inferences drawn were consistent with the evidence presented. Regarding the characterisation of the offending, the court held that the trial judge had correctly assessed the scale of the operation, which involved a significant number of plants and a commercial aspect to the activity. The court also rejected the argument that the sentence was manifestly excessive, finding that the sentence was within the range of appropriate penalties for the crimes committed. The court determined that the trial judge had adequately considered the mitigating factors and appropriately weighed them against the seriousness of the offending.

Orders