Greenyer v R - [2016] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Greenyer v R [2016] NSWCCA 272
Hearing dates: 14 November 2016
Decision date: 01 December 2016
Before: Meagher JA at [1]
Rothman J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) The aggregate sentence imposed by Judge Blackmore SC is quashed.
(3) The applicant is sentenced to an aggregate head sentence of imprisonment for 3 years, with a non-parole period of 1 year and 9 months, to date from 19 June 2015.
(4) The applicant will be released to parole on 18 March 2017.

Catchwords: CRIMINAL – sentence appeal – ongoing supply of prohibited drug – supply of prohibited drug – error in calculation of commencement date – whether sentence is manifestly excessive – commencement date adjusted – appeal otherwise dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25A, 32, 36Y(1)(a)
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McKellar v R [2010] NSWCCA 295
Category: Principal judgment
Parties: Daniel Greenyer (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/370815
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

05 February 2016

Before:

Blackmore DCJ

File Number(s):

2014/370815

Judgment

Meagher JA: I agree with Button J.
Rothman J: I have had the advantage of reading, in draft, the reasons for judgment of Button J. I agree with those reasons and with the orders proposed.
Button J:

Introduction

On 5 February 2016, in the District Court of New South Wales at Sydney, Judge Blackmore SC sentenced Daniel Greenyer (the applicant) for two offences to which he had pleaded guilty in the Local Court. The first was that he had engaged in the ongoing supply of a prohibited drug; namely, methylamphetamine. Pursuant to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty was imprisonment for 20 years, with no standard non-parole period applicable. The second was supplying a prohibited drug, an offence that carried a maximum penalty of imprisonment for 15 years, pursuant to s 32 of the same Act. Again, no standard non-parole period applied.
Taken into account with regard to the offence of ongoing supply was a charge on a Form 1, pursuant to s 36Y(1)(a) of the Drug Misuse and Trafficking Act. That was an offence of knowingly allowing premises to be used as “drug premises”. The maximum penalty for that offence is imprisonment for 12 months.

Background

The agreed facts placed before his Honour may be concisely summarised as follows.
The applicant and the co-offender, Mr Jake Henderson, were living at premises in Alexandria. In March 2013, police came to the home after Mr Henderson suffered a drug overdose. The premises were fortified and secured in ways that readily led to the suspicion that…

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 Greenyer v R

Details

AGLC: Greenyer v The Queen [2016] NSWCCA 272
Case: [2016] NSWCCA 272
Decision Date: 01 December 2016

CaseChat Overview and Summary

The appellant, Greenyer, appealed against his sentence for ongoing supply of a prohibited drug and supply of a prohibited drug. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the appellant's sentence was manifestly excessive, given an error in the calculation of the commencement date of the supply. The court was also required to determine whether the error warranted a reduction in sentence or if the appeal should be dismissed.

The court found that the error in calculating the commencement date of the supply did not materially affect the sentence. The court held that the sentence was not manifestly excessive and that the appeal should be dismissed. The court acknowledged that the error in calculating the commencement date was significant, but found that it did not warrant a reduction in sentence. The court held that the sentence was proportionate to the gravity of the offending and that the appellant had not demonstrated that the error materially affected the sentence.

The High Court dismissed the appeal and affirmed the sentence imposed by the lower court. The court held that the sentence was proportionate to the offending and that the error in calculating the commencement date did not materially affect the sentence. The court also held that the appellant had not demonstrated that the sentence was manifestly excessive.

No further orders were made by the court.

Orders