Greenaway v The Queen - [2013] NSWCCA 270

Court of Criminal Appeal

New South Wales

Case Title: Greenaway v R

Medium Neutral Citation: [2013] NSWCCA 270

Hearing Date(s): 9 October 2013

Decision Date: 08 November 2013

Before: Gleeson JA at [1]
R A Hulme J at [2]
Adamson J at [42]

Decision:
1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - take part in manufacture of large commercial quantity of methylamphetamine - well planned and organised operation - appellant a central part of the organisation - asserted Muldrock error - sentencing judge arrived at head sentence for which notional non-parole period equated to standard non-parole period before reducing for mitigating features - error established - no lesser sentence warranted

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited: Bolt v R [2012] NSWCCA 50
Diesing v R [2007] NSWCCA 326
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v DW [2012] NSWCCA 66
R v El-Azzi [2004] NSWCCA 455
R v Larsson (unreported, NSWCCA, 11 September 1997)
R v Pedavoli [2002] NSWCCA 87; (2002) 128 A Crim R 137
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Reardon v R [2012] NSWCCA 46
Wong v The Queen [2001] HCA 64; (2001) 207 CLR
Zreika v R [2012] NSWCCA 44

Category: Principal judgment

Parties: William Greenaway (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Ms A Francis (Applicant)
Ms S Herbert (Crown)

- Solicitors: Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2009/983

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Toner SC DCJ

- Date of Decision: 30 April 2010

- Court File Number(s): 2009/983

JUDGMENT

GLEESON JA: I agree with R A Hulme J.
R A HULME J: William Greenaway ("the applicant") applies for leave to appeal against a sentence imposed upon him in the District Court at Parramatta by his Honour Judge Toner SC on 30 April 2010.
The applicant had pleaded guilty to offences of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine (s 24(2) Drugs Misuse and Trafficking Act 1985 (NSW) - maximum penalty imprisonment for life and/or a fine of 5000 penalty units) and possessing a precursor intended for use in the manufacture of a prohibited drug (s 24A(1) of the same Act - maximum penalty imprisonment for 10 years and/or a fine of 2000 penalty units).
Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for a standard non-parole period of 15 years for the manufacturing offence.
The applicant was sentenced to 15 years 6 months for the manufacturing offence and 4 years for the precursor offence. Both sentences were specified to date from 8 January 2008; he had been in custody since his arrest on that date. The judge set a non-parole period…

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 Greenaway v The Queen

Details

AGLC: Greenaway v The Queen [2013] NSWCCA 270
Case: [2013] NSWCCA 270
Decision Date: 08 November 2013

CaseChat Overview and Summary

In Greenaway v The Queen, the appellant, Greenaway, appealed against his sentence for his involvement in the manufacture of a large commercial quantity of methylamphetamine. The case was heard in the High Court of Australia, which had to determine whether the original sentencing judge's approach resulted in an error that warranted a reduction in the appellant's sentence. The appeal centred on whether the sentencing judge had correctly applied the principles of sentencing in light of the appellant's role in a sophisticated and organised drug manufacturing operation.

The court was required to examine whether the sentencing judge correctly applied the principles of totality and whether the sentence imposed was appropriate for the gravity of the offence. A critical issue was whether the sentencing judge had erred by arriving at the head sentence first and then reducing it for mitigating features, rather than applying the mitigating features at the outset. The court had to determine if this error warranted a reduction in the appellant's sentence.

The High Court found that the sentencing judge had indeed erred in arriving at the head sentence first and then reducing it for mitigating features, a process which did not align with the principles of sentencing as outlined in Muldrock v The Queen. However, the court also found that despite this error, the sentence imposed was appropriate and no lesser sentence was warranted. The appellant's role in the operation was central, and the mitigating factors did not justify a significantly reduced sentence. Consequently, the appeal was dismissed.

Orders