DAY -v- THE QUEEN [2001] WASCA 284
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 284 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:41/2001 | 13 JUNE 2001 | |
| Coram: | KENNEDY J STEYTLER J MILLER J | 14/09/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | ALAN MARTIN DAY THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Cultivating cannabis plants with intent to sell or supply cannabis to another Plants cultivated by a hydroponic method on a commercial basis 109 plants of which 62 were immature seedling plants Sentence of 6 years' imprisonment with eligibility for parole Whether sufficient weight given to early plea of guilty, remorse, the need to care for disabled son and delay in sentencing Whether sentence excessive having regard to the range of sentences commonly imposed for such offences |
Legislation: | Misuse of Drugs Act 1981, s 7(1)(a) |
Case References: | Kennedy v R, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 Nguyen v The Queen [2001] WASCA 72 R v Lyon [2001] WASC 120 R v Shore (1992) 66 A Crim R 37 R v Todd [1982] 2 NSWLR 517 Troy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998 Atholwood v The Queen [1999] WASCA 256 Cabassi v The Queen [2000] WASCA 305 Duncan v The Queen (1982) 9 A Crim R 354 Little v The Queen [2001] WASCA 87 Maniaci v The Queen (2000) 114 A Crim R 308 Postiglione v The Queen (1997) 189 CLR 295 R v Rattray, unreported; DCt of WA (Hammond CJDC); No 247 of 2001; 19 March 2001 R v Thomson (2000) 49 NSWLR 383 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DAY -v- THE QUEEN [2001] WASCA 284 CORAM : KENNEDY J
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Cultivating cannabis plants with intent to sell or supply cannabis to another - Plants cultivated by a hydroponic method on a commercial basis - 109 plants of which 62 were immature seedling plants - Sentence of 6 years' imprisonment with eligibility for parole - Whether sufficient weight given to early plea of guilty, remorse, the need to care for disabled son and delay in sentencing - Whether sentence excessive having regard to the range of sentences commonly imposed for such offences
Legislation:
Misuse of Drugs Act 1981, s 7(1)(a)
(Page 2)
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Applicant : Mr D Grace QC & Mr L M Levy
Respondent : Mr K M Tavener
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kennedy v R, unreported; CCA SCt of WA; Library…
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- Day v The Queen [2001] WASCA 284
- Case
- [2001] WASCA 284
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CaseChat Overview and Summary
In the case of Day v The Queen, the respondent was convicted of cultivating cannabis plants with intent to sell or supply, using a hydroponic method on a commercial scale. The total number of plants found was 109, of which 62 were immature seedlings. The High Court of Australia was tasked with determining whether the sentence of six years' imprisonment, with eligibility for parole, was appropriate given the various mitigating factors presented.
The primary legal issues before the Court were whether the trial judge appropriately balanced the mitigating factors of the respondent's early guilty plea, remorse, the need to care for a disabled son, and the delay in sentencing against the severity of the offence. Additionally, the Court had to assess if the sentence was excessive when considering the range of penalties typically imposed for similar offences.
In reaching its decision, the Court found that the trial judge did not sufficiently account for the mitigating factors presented. The Court highlighted that the early guilty plea, the respondent's remorse, and the necessity to care for a disabled son were significant factors that warranted a more lenient sentence. The delay in sentencing was also considered, but it was not deemed to be of paramount importance. Given these considerations, the Court concluded that the sentence was excessive in relation to the range of penalties commonly imposed for cultivating cannabis plants with intent to sell or supply.
Consequently, the Court granted leave to appeal and allowed the appeal, thereby setting aside the original sentence. The matter was remitted to the trial court for re-sentencing, taking into account the factors the Court deemed necessary.
The primary legal issues before the Court were whether the trial judge appropriately balanced the mitigating factors of the respondent's early guilty plea, remorse, the need to care for a disabled son, and the delay in sentencing against the severity of the offence. Additionally, the Court had to assess if the sentence was excessive when considering the range of penalties typically imposed for similar offences.
In reaching its decision, the Court found that the trial judge did not sufficiently account for the mitigating factors presented. The Court highlighted that the early guilty plea, the respondent's remorse, and the necessity to care for a disabled son were significant factors that warranted a more lenient sentence. The delay in sentencing was also considered, but it was not deemed to be of paramount importance. Given these considerations, the Court concluded that the sentence was excessive in relation to the range of penalties commonly imposed for cultivating cannabis plants with intent to sell or supply.
Consequently, the Court granted leave to appeal and allowed the appeal, thereby setting aside the original sentence. The matter was remitted to the trial court for re-sentencing, taking into account the factors the Court deemed necessary.
Orders
Orders of the court
Leave to appeal granted
Appeal allowed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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