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Crowley v R

Crowley v R

Case [2017] NSWCCA 99 17 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Crowley v R [2017] NSWCCA 99
Hearing dates: 3 May 2017
Date of orders: 17 May 2017
Decision date: 17 May 2017
Before: Johnson J at [1]; Adamson J at [2]; Campbell J at [47]
Decision:
1 Grant leave to appeal.
2 Dismiss the appeal.

Catchwords: CRIMINAL LAW – appeal – offence of cultivation of not less than the commercial quantity of a prohibited plant (cannabis) – enhanced means of cultivation – whether sentencing judge erred in determination of objective seriousness of offence leading to manifest excess – whether sentencing judge erred in finding of readiness to supply – whether sentencing judge erred in failing to take account applicant’s background – HELD –appeal dismissed
Legislation Cited: Criminal Procedure Act 1986 (NSW) s 166(1)
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 10, 23, 23(1A), 23(2), 23(2)(a), 25(2)(a), 33(1)(a), 33(2)(b), 33(3)(b), Sch1
Interpretation Act 1987 (NSW), s 34(2)(f)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Hooper [2004] NSWCCA 10
R v Seman (Court of Criminal Appeal (NSW), 15 May 1992, unrep)
SBF v The Queen (2009) 198 A Crim R 219; [2009] NSWCA 231
The Queen v De Simoni (1981) 147 CLR 383
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Texts Cited: New South Wales Legislative Assembly Parliamentary Debates (Hansard), 25 May 2006 at 473
Category: Principal judgment
Parties: Nickolas Skye Crowley (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Hawkins (Applicant)
S Hughes (Respondent)
Solicitors:
George Sten & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/306104
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

24 August 2016

Before:

Wells DCJ

File Number(s):

2015/306104

Judgment

JOHNSON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence imposed on him for the offence of cultivation of not less than the commercial quantity of a prohibited plant (cannabis) under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). On 24 August 2016 the applicant was sentenced to a term of imprisonment of three years which commenced on 24 August 2016, with a non-parole period of two years.
The applicant seeks leave to appeal on the following grounds:

The sentencing judge erred in the assessment of the objective seriousness of the offence which resulted in the sentence being manifestly excessive.

The sentencing judge failed to apply the principles in The Queen v De Simoni (1981) 147 CLR 383 in finding, and taking into account, that the applicant was ready to supply cannabis if it had not already occurred.

The sentencing judge erred in finding that the applicant “blamed” his mother for his offending contrary to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

Except where otherwise indicated,…

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 Crowley v R

Details

AGLC: Crowley v R [2017] NSWCCA 99
Case: [2017] NSWCCA 99
Decision Date: 17 May 2017

CaseChat Overview and Summary

In the matter of Crowley v R, the appellant, Crowley, appealed against his conviction and sentence for cultivating cannabis. The case was heard and determined in the High Court of Australia. The central dispute in this matter revolved around the sentencing imposed by the trial judge, which Crowley contended was excessive and not reflective of the true circumstances and context of the offence.

The legal issues central to the appeal were whether the sentencing judge erred in determining the objective seriousness of the offence, leading to a manifest excess in the sentence. Additionally, Crowley argued that the sentencing judge erred in finding that he was ready to supply the cultivated cannabis and failed to take into account his background and personal circumstances in the sentencing process. These issues required the court to carefully examine the sentencing principles and the trial judge's assessment of the evidence and circumstances.

The High Court, in dismissing the appeal, found that the sentencing judge had correctly assessed the objective seriousness of the offence, taking into account the quantity of cannabis cultivated and the enhanced means employed. The Court held that the sentence was not manifestly excessive and was within the range of appropriate penalties for such an offence. Furthermore, the Court found that the evidence supported the sentencing judge's conclusion that Crowley was ready to supply the cannabis. Lastly, the Court held that the sentencing judge had appropriately considered Crowley's background, even though it did not mitigate the offence to a significant degree. Consequently, the appeal was dismissed, affirming the conviction and sentence imposed by the trial judge.

Orders