Cunningham v Regina - [2017] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cunningham v Regina [2017] NSWCCA 222
Hearing dates: 22 May 2017
Decision date: 13 September 2017
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
McCallum J at [3]
Decision:
Leave to appeal granted; appeal dismissed

Catchwords:
CRIME – appeals – sentencing – strong subjective case – where offender sentenced to 12 months’ imprisonment to be served by way of intensive correction order – whether sentencing judge erred in failing to impose a non-custodial sentence
CRIME – appeals – sentencing – manifest excess – whether sentence imposed was within the permissible exercise of the sentencing judge’s discretion
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
Mental Health Act 2007 (NSW)
Category: Principal judgment
Parties: Liam Cunningham (applicant)
Regina (respondent)
Representation:
Counsel:
P Coady (applicant)
N Adams (respondent)
Solicitors:
Brenda Duchen Solicitor (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2015/178800
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Crime

Citation:

[2017] NSWDC 106

Date of Decision:

27 January 2017

Before:

Berman DCJ

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of McCallum J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons.
HOEBEN CJ at CL: I agree with McCallum J.
McCALLUM J: Liam Cunningham seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to one count of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence was imprisonment for fifteen years. The drug in question was 15.86g of psilocin mushrooms, also known as “magic mushrooms”. Two further charges were taken into account on a Form 1 schedule, relating to 4.1 grams of cannabis and a bottle of morphine hydrochloride.
The applicant had pleaded guilty at the earliest opportunity and was allowed a discount of 25% to reflect the utilitarian value of the plea. He was sentenced to a period of 12 months imprisonment to be served by way of an intensive correction order.
The applicant raises two grounds of appeal as follows:

The learned sentencing judge erred in failing to impose a non-custodial sentence.

The sentence imposed was manifestly excessive.

The offences may be described briefly. The applicant came to the attention of police when it was reported that his car was parked close to the Gap at Vaucluse at 4:20am. Owing to the Gap’s reputation as a place attended by people at risk of self-harm, police approached the car. They saw the applicant sitting in the driver’s seat. He was shirtless, despite cold temperatures. The car was searched. The psilocin mushrooms were found in two separate bags in the glove box together with a small set of scales. The cannabis was found in the passenger side footwell. The bottle…

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 Cunningham v Regina

Details

AGLC: Cunningham v Regina [2017] NSWCCA 222
Case: [2017] NSWCCA 222
Decision Date: 13 September 2017

CaseChat Overview and Summary

In this case, the appellant, Cunningham, challenged the sentence imposed on him by the sentencing judge, which was 12 months’ imprisonment to be served by way of an intensive correction order. The nature of the dispute was whether the sentencing judge erred in failing to impose a non-custodial sentence, and whether the sentence imposed was within the permissible exercise of the sentencing judge’s discretion. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had erred in not considering a non-custodial sentence. The court considered whether the sentence imposed was within the permissible exercise of the sentencing judge’s discretion, and whether the sentence was manifestly excessive. The court also considered whether the sentencing judge had erred in not considering a non-custodial sentence.

The court held that the sentence imposed was within the permissible exercise of the sentencing judge’s discretion. The court found that the sentencing judge had considered the appellant’s culpability, the seriousness of the offence, and the need for deterrence and rehabilitation in imposing the sentence. The court held that the sentence imposed was not manifestly excessive and that the sentencing judge had not erred in failing to impose a non-custodial sentence. The court found that the sentencing judge had considered all relevant factors in imposing the sentence and that the sentence was appropriate in the circumstances of the case.

The final orders of the court were that the appeal be dismissed and that the sentence imposed by the sentencing judge be upheld. The court held that the sentence imposed was within the permissible exercise of the sentencing judge’s discretion and that the sentencing judge had not erred in failing to impose a non-custodial sentence.

Orders