Leeming JA at [1] Yehia J at [8] Weinstein J at [115]
Decision:
(1) Grant leave to appeal
(2) Appeal allowed
(3) The sentence imposed on the applicant in the District Court on 7 October 2022 is set aside and, in lieu thereof:
(a) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant is sentenced to a term of imprisonment of 1 year 2 months and 27 days, to be served by way of an Intensive Correction Order. That sentence will commence today, 10 July 2023.
(b) The standard conditions that apply during the term of the order are that the applicant:
i. Must not commit any offence; and
ii. Must submit to the guidance and supervision of Community Corrections for as long as they deem necessary.
(c) The additional condition that applies during the term of the order is that the applicant, within 7 days of his release from custody, make arrangements for an appointment with his General Practitioner, Dr Ellis Vivian, for the purpose of obtaining an updated Mental Health Treatment Plan and thereafter to comply with the treatment plan.
(4) The applicant is directed to attend the Community Corrections Office at Wyong within 7 days of today’s date to facilitate the administration of this order.
Catchwords:
CRIME — Appeals — Appeal against sentence — Cultivation of cannabis plants by enhanced indoor means — 36 plants — Whether error established in assessment of objective seriousness — Where there was a denial of procedural fairness in failure to raise an intention to depart from agreed position of the parties about remorse — Where applicant had prior good character — Where applicant had mental health conditions — Where sentencing judge declined to impose a term of imprisonment to be served by Intensive Correction Order — Where applicant has already served a period of 9 months in custody — Error established — Resentenced to an Intensive Correction Order — Immediate release
[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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AGLC
Carl v R [2023] NSWCCA 190
Case
[2023] NSWCCA 190
Decision Date
CaseChat Overview and Summary
The applicant in this case was convicted of cultivating cannabis plants by enhanced indoor means. The appeal was against the sentence imposed by the sentencing judge, who declined to impose a term of imprisonment to be served by an Intensive Correction Order. The case was heard in the Court of Appeal, which was required to determine whether the sentencing judge made any errors in the assessment of the objective seriousness of the offence or in the procedure followed. The appeal centred on the contention that the sentencing judge failed to consider the applicant's remorse, which was a matter agreed upon by the parties, and that this constituted a denial of procedural fairness. The applicant also had prior good character and mental health conditions, which were relevant factors in the sentencing process.
The Court of Appeal found that the sentencing judge did indeed make an error in procedure by not raising the issue of the applicant's remorse, which was an agreed position between the parties. This error was significant enough to warrant a reassessment of the objective seriousness of the offence. The Court also noted that the applicant had already served a period of 9 months in custody, and that the sentencing judge had declined to impose a term of imprisonment to be served by an Intensive Correction Order. Given these factors, the Court concluded that the error established warranted a resentencing.
The Court of Appeal set aside the original sentence and resentenced the applicant to an Intensive Correction Order, with immediate release. The Court emphasised that the resentencing took into account the error in procedure, the agreed position on the applicant's remorse, the applicant's prior good character, and the fact that the applicant had already served a significant period in custody. The Court also noted that the resentencing was consistent with the sentencing principles and the objectives of sentencing in Australian law.