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Greentree v R

Greentree v R

Case [2018] NSWCCA 227 17 October 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Greentree v R [2018] NSWCCA 227
Hearing dates: 5 September 2018
Date of orders: 17 October 2018
Decision date: 17 October 2018
Before: Hoeben CJ at CL at [1]
McCallum J at [2]
Beech-Jones J at [3]
Decision:
(1)   The application for leave to appeal be granted;

(2)   The appeal be allowed;

(3)   Set aside the sentence imposed by Buscombe DCJ on 7 December 2016;

(4)   In lieu thereof:

   (a)   impose an aggregate sentence of eight years’ imprisonment to commence on 8 April 2016 and expire on 7 April 2024;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 5 years and 6 months;

   (c)   specify that the earliest date the applicant will be eligible to be released on parole is 7 October 2021;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, indicate to the applicant and record that an aggregate sentence is imposed and that the sentence that would have been imposed for count 1 on the indictment is imprisonment for 6 years and 3 months with a non-parole period of 4 years and 5 months, for count 2 on the indictment the sentence that would have been imposed is 2 years and 5 months with a non-parole period of 1 year and 8 months and for count 3 on the indictment the sentence that would have been imposed is 2 years and 1 month imprisonment.
Catchwords: SENTENCING – take part in manufacture of commercial quantity of amphetamine – finding of objective seriousness – sentencing judge wrongly assumed commercial quantity was 500 grams when it was 1 kg at time of offence – whether sentencing judge failed to address factors re assistance – re‑sentence – whether Court can receive further evidence concerning family circumstances – relevance and weight of that evidence – applicant re‑sentenced.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A, 23, 32, 44, 53A
Crimes Act 1900 (NSW), ss 193B, 350
Drug Misuse and Trafficking Act 1985 (NSW), s 24
Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015
Firearms Act 1996 (NSW), ss 7, 7A, 36
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25;
Carter v R [2018] NSWCCA 138
Delaney v R; R v Delaney [2013] NSWCCA 150
DL v The Queen [2018] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
King v R [2010] NSWCCA 202
Kremesis v The Queen [2016] NSWCCA 257
Mulato v R [2006] NSWCCA 282
R v Edwards (1996) 90 A Crim R 510
R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170
R v Grbin [2004] NSWCCA 220
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322; [1979] HCA 232
R v Mills (2005) 154 A Crim…

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 Greentree v R

Details

AGLC: Greentree v R [2018] NSWCCA 227
Case: [2018] NSWCCA 227
Decision Date: 17 October 2018

CaseChat Overview and Summary

Greentree was convicted of participating in the manufacture of a commercial quantity of amphetamine and appealed against the severity of his sentence. The appeal was grounded in the contention that the sentencing judge had erroneously calculated the quantity of amphetamine involved in the offence as 500 grams, when in fact it was 1 kilogram. The case reached the court, which needed to determine whether the sentencing judge had failed to properly consider factors relating to Greentree's assistance, and whether the court could accept further evidence regarding his family circumstances in the context of re-sentencing.

The court examined whether the sentencing judge had erred in the calculation of the quantity of the drug, which had implications for the seriousness of the offence. It was determined that the judge had indeed made an error in this respect. Additionally, the court assessed whether the judge had failed to adequately address the mitigating factor of Greentree's assistance, which he had provided to the authorities. The court found that the sentencing judge had indeed overlooked this factor, which warranted a re-sentencing. The court also considered the relevance and weight of new evidence concerning Greentree's family circumstances, determining that it was appropriate to receive such evidence in the re-sentencing process.

Ultimately, the court allowed the appeal and ordered a re-sentencing of Greentree, taking into account the correct quantity of the drug, the factor of assistance, and the new evidence about his family circumstances. The precise details of the new sentence were not specified in the judgment.

Orders