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Cashel v The Queen

Cashel v The Queen

Case [2018] NSWCCA 292 14 December 2018

Appeal

Criminal Liability

Statutory Interpretation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Cashel v R [2018] NSWCCA 292
Hearing dates: 16 July 2018
Decision date: 14 December 2018
Before: Beazley P at [1]
R A Hulme at [2]
Button J at [6]
Decision:
(1) Leave to appeal against conviction on count 1 granted.
(2) Appeal against conviction on count 1 dismissed.
(3) Leave to appeal against conviction on count 2 granted.
(4) Appeal against conviction on count 2 allowed.
(5) The conviction on count 2 for manufacturing a commercial quantity of methylamphetamine quashed, and substituted with a conviction for knowingly taking part in the manufacture of a commercial quantity of methylamphetamine.
(6) The sentence imposed at first instance on count 2 is accordingly quashed.
(7) On substituted count 2, the applicant is sentenced to a non-parole period of 5 years 1 month, to commence on 24 December 2014, and expire on 23 January 2020, with a parole period of 2 years 9 months, to expire on 23 October 2022.
(8) The first date upon which the applicant is eligible for possible release to parole remains 23 January 2020.

Catchwords: CRIMINAL LAW – appeal against conviction – discussion of nature of offences of manufacture and knowingly take part in manufacture of a prohibited drug – statutory interpretation – manufacture requires drug to be actually produced – criminality in this case captured by knowingly take part in manufacture – conviction for manufacture quashed – substituted conviction for knowingly take part in manufacture – re-sentence on count 2
CRIMINAL LAW – appeal against conviction – applicant convicted of manufacturing a precursor – precursor taken into account with regard to quantity of prohibited drug that could be produced for purposes of separate offence – whether conviction with regard to precursor should be quashed on the basis that no “remnant” of criminality required to be captured by it – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW), s 5(1)
Drug Misuse and Trafficking Act 1986 (NSW), s 24
Cases Cited: Britten v Alpogut [1987] VR 929
Dayment v R [2018] NSWCCA 132
Haughton v Smith [1975] AC 476
Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444
Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
Mouroufas v R [2007] NSWCCA 58
Pearce v the Queen [1998] HCA 57; 194 CLR 610
R v Blyth [2001] NSWCCA 402,
R v Bucic [2016] NSWCCA 297
R v Butler (1834) 6 Car. & P. 367; 172 ER 1280
R v Deng (1996) 91 A Crim R 80
R v Jackson [2004] NSWCCA 110
R v Roderick (1837) 7 Car. & P. 795; 173 ER 347
R v Thomas (1993) 67 A Crim R 308
Texts Cited: Peter Gillies, Criminal Law (4th ed,1997, LBC Information Services)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 28…

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 Cashel v The Queen

Details

AGLC: Cashel v The Queen [2018] NSWCCA 292
Case: [2018] NSWCCA 292
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Cashel v The Queen involved an appeal against the conviction of the applicant, Cashel, who had been found guilty of manufacturing a prohibited drug and knowingly taking part in the manufacture of that drug. The appeal was heard by the court, which was required to consider the nature of the offences of manufacture and knowingly taking part in the manufacture of a prohibited drug, as well as the interpretation of the relevant statutory provisions. The applicant argued that the conviction for manufacturing the drug should be quashed as it required the actual production of the drug, which had not occurred in this case. The court agreed and quashed the conviction for manufacture, substituting it with a conviction for knowingly taking part in the manufacture.

The court considered whether the applicant's conviction for manufacturing a precursor should also be quashed, as there was no "remnant" of criminality required to be captured by this conviction. The court held that the conviction for manufacturing the precursor could stand, as it was taken into account with regard to the quantity of the prohibited drug that could be produced for the purposes of a separate offence. The applicant's appeal was dismissed, and the matter was remitted to the sentencing court for re-sentencing on count 2 of the indictment.

Orders