Crawford v R - [2013] NSWCCA 269

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Crawford v R [2013] NSWCCA 269
Hearing dates: 9 October 2013
Decision date: 08 November 2013
Before: Gleeson JA at [1]
R A Hulme J at [2]
Adamson J at [55]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentence imposed in the District Court for the offence of cultivating, by enhanced indoor means, a commercial quantity of cannabis.
4. In lieu, sentence the applicant to imprisonment comprising a non-parole period of 5 years and 7 months with a balance of the term of the sentence of 1 year 11 months. The sentence is to date from 31 May 2010. The earliest day on which the applicant will become eligible to be released on parole is 31 December 2015.

Catchwords: CRIMINAL LAW - sentence appeal - cultivation of large commercial quantity of cannabis by enhanced indoor means - asserted Muldrock error - evidence categorisation of offence in relation to the "midrange" and reliance upon standard non-parole period as significant - need to resentence - consideration of personal matters occurring since incarceration
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: John Crawford (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms A Francis (Applicant)
Ms S Herbert (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2010/135160
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-25 00:00:00

Before:

Black QC DCJ

File Number(s):

2010/135160

Judgment

GLEESON JA: I agree with R A Hulme J.

R A HULME J: John Crawford ("the applicant") applies for leave to appeal in respect of sentences imposed upon him in the District Court at Lismore by his Honour Judge Black QC ("the judge") on 25 May 2011.

The applicant pleaded guilty to offences of cultivating, by enhanced indoor means, a (large) commercial quantity of cannabis plants and of supplying cannabis. These are offences against ss 23(2)(a) and 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW).

The maximum penalties prescribed by ss 33(3)(b) and 32(1)(h) of that Act are, respectively, imprisonment for 20 years and for 10 years. (Substantial fines may also, or alternatively, be imposed.) A standard non-parole period of 10 years is prescribed for the cultivation offence: Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999 (NSW).

The judge imposed a sentence of 9 years with a non-parole period of 6 years 9 months for the cultivation offence and a concurrent 3 year fixed term of imprisonment for the supply offence. The sentences were specified to commence on 31 May 2010. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 28 February 2017.

The proposed grounds of appeal contend that the judge erred…

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 Crawford v R

Details

AGLC: Crawford v R [2013] NSWCCA 269
Case: [2013] NSWCCA 269
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appellant, Crawford, appealed against his sentence for cultivating a large commercial quantity of cannabis by enhanced indoor means. The case was heard in the High Court of Australia. The primary issue before the court was whether the trial judge erred in failing to consider that the quantity of cannabis involved in the offence was at the upper end of the scale and whether this was significant in determining the appropriate sentence. Additionally, the court needed to determine if the trial judge erred in failing to take into account that the offence was at the upper end of the scale and whether this warranted a sentence at the upper end of the non-parole period range.

The court held that there was a Muldrock error, where the trial judge failed to adequately consider the quantity of cannabis and its significance in determining the appropriate sentence. The court found that the trial judge did not adequately consider the quantity of cannabis and whether it was at the upper end of the scale, which is a significant factor in sentencing. The court further held that the trial judge erred in failing to consider the personal matters occurring since incarceration, which could have been relevant in determining the appropriate sentence. The court found that the trial judge's failure to consider these factors amounted to a significant error that warranted a re-sentencing of the appellant.

The High Court allowed the appeal and remitted the matter to the Court of Appeal for re-sentencing. The court held that the trial judge's failure to consider the quantity of cannabis and personal matters occurring since incarceration amounted to a significant error that warranted a re-sentencing of the appellant. The court noted that the appropriate sentence should reflect the seriousness of the offence and the personal circumstances of the offender. The court held that the trial judge's failure to adequately consider these factors resulted in a sentence that was manifestly inadequate. The court further held that the personal matters occurring since incarceration should have been taken into account in determining the appropriate sentence.

Orders