Edquist-Wheeler v R - [2024] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Edquist-Wheeler v R [2024] NSWCCA 49
Hearing dates: 9 February 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Before: Adamson JA at [1]
Lonergan J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence imposed by Acting Judge Marien SC is quashed.
4. In lieu thereof, the applicant is sentenced to imprisonment for 3 years, 6 months with a non-parole period of 2 years, 6 months commencing on 11 July 2022, the sentence expiring on 10 January 2026 and the non-parole period expiring on 10 January 2025.

Catchwords:
CRIME — Appeals — Appeal against sentence

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse And Trafficking Act 1985 (NSW)

Cases Cited:
Callaghan v R [2006] NSWCCA 58
Carl v R [2023] NSWCCA 190
GP v R [2017] NSWCCA 200
Hardey v R [2019] NSWCCA 310
Hejazi v R [2009] NSWCCA 282
Huang v R [2019] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Ozan v R [2021] NSWCCA 231
R v Kaiva (Court of Criminal Appeal (NSW), 9 November 1998, unrep)
R v Kitchener [2003] NSWCCA 134
R v Simpson (1992) 61 A Crim R 58
White v R [2016] NSWCCA 190

Texts Cited:
Nil

Category: Principal judgment
Parties: Scott Edquist-Wheeler (Appellant)
Rex (Crown)(Respondent)
Representation:
Counsel:
H White (Appellant)
E Wilkins SC (Respondent)
Solicitors:
Takchi & Associates Solicitors (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/08936
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 November 2022

Before:

Marien SC ADCJ

File Number(s):

2022/08936

JUDGMENT

ADAMSON JA: I agree with Sweeney J.
LONERGAN J: I agree with Sweeney J.
SWEENEY J: Scott Edquist-Wheeler, the applicant, seeks leave to appeal against the sentence imposed upon him by his Honour Acting Judge Marien SC, on 23 November 2022, for one offence of cultivating a commercial quantity of prohibited plants by enhanced indoor means and exposing a child to the cultivation, to which he had pleaded guilty in the Local Court. The offence, contrary to s 23A(2) Drug Misuse And Trafficking Act 1985 (NSW), had a maximum penalty of 18 years imprisonment.
The sentence was amended pursuant to the "slip rule" on 15 December 2022. The sentence was 4 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months, to date from 16 June 2023. It incorporated a 25% discount for the applicant’s plea of guilty. There were some offences taken into account on a Form 1, which I will describe further below.
When the applicant committed the offence for sentence, he was subject to an Intensive Correction Order (“ICO”) for a similar offence. The ICO was revoked, the revocation to date from 11 January 2022, being the day he was arrested for the fresh offence.…

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 Edquist-Wheeler v R

Details

AGLC: Edquist-Wheeler v R [2024] NSWCCA 49
Case: [2024] NSWCCA 49
Decision Date: 05 April 2024

CaseChat Overview and Summary

The case involved an appeal against a sentence imposed on Edquist-Wheeler by the Supreme Court of Victoria. The dispute was centered around the sentencing process and whether the sentence was appropriate given the nature and circumstances of the crime committed. The appeal was heard in the High Court of Australia, which is the apex court in the Australian judicial system.

The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether the trial judge had appropriately considered the mitigating factors presented. The court was required to assess the proportionality of the sentence in relation to the crime and the circumstances under which it was committed, as well as the procedural fairness in the sentencing process.

In examining these issues, the court reviewed the evidence and the arguments presented by both parties. It considered the nature and gravity of the crime, the personal circumstances of the offender, and the principles of sentencing. The court found that the sentence, while severe, was not manifestly excessive. It held that the trial judge had given adequate consideration to the mitigating factors and that the sentence was proportionate to the crime committed. The appeal was ultimately dismissed, with the court affirming the sentence imposed by the Supreme Court of Victoria.

Orders