Gumbleton v The Queen - [2017] NSWCCA 314

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gumbleton v R [2017] NSWCCA 314
Hearing dates: 17 November 2017
Decision date: 14 December 2017
Before: Bathurst CJ at [1];
R A Hulme J at [2];
Wilson J at [33]
Decision:
1. Leave to appeal against sentence granted.
2. Sentence imposed in the District Court on 2 March 2017 quashed.
3. In lieu, sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months. The sentence will date from 20 December 2016. The applicant will become eligible for release on parole when the non-parole period expires on 19 March 2020.

Catchwords:
CRIME – appeal against sentence – three offences relating to cannabis cultivation and supply – enhanced indoor cultivation – commercial quantity – finding of special circumstances – insufficient reduction of non-parole period – sentencing discretion miscarried – re-sentence – reduction of non-parole period to give practical effect to finding of special circumstances – appeal allowed
CRIME – appeal against sentence – parity – same sentence imposed on co-offender – whether justifiable sense of grievance – both co-offenders principals of enterprise – little to distinguish levels of co-operation – favourable findings made for both subjective cases – difficult to distinguish between co-offenders
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
Criminal Appeal Act 1912 (NSW) s 6(3)
Cases Cited: Dawson v R [2013] NSWCCA 61
El-Ahmad v R [2015] NSWCCA 65
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
MD v R [2015] NSWCCA 37
Category: Principal judgment
Parties: Edward Garry Gumbleton (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr J Stratton SC (Applicant)
Mr N Adams (Crown)
Solicitors:
Law Magill Solicitors
Solicitor for Public Prosecutions

File Number(s): 2016/191654
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

2 March 2017

Before:

Wells SC DCJ

File Number(s):

2016/191654

Judgment

BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.
R A HULME J: Edward Garry Gumbleton (“the applicant”) was sentenced in the District Court at Lismore by her Honour Judge Wells on 2 March 2017. Her Honour imposed an aggregate sentence of imprisonment for 5 years 3 months with a non-parole period of 3 years 9 months. The applicant will become eligible for release on parole on 19 September 2020.
Details of the offences and the sentences the judge indicated she would have imposed if she was not imposing an aggregate sentence are as follows:

Offence

Provision of the Drug Misuse and Trafficking Act 1985 (NSW)

Maximum penalty

Indicative sentence

Knowingly take part in the cultivation, by enhanced indoor means, of cannabis plants for a commercial purpose

s 23(1A)

Imprisonment for 15 years and/or a fine of 3500 penalty units

2 years 7 months

Knowingly take part in the supply of not less than the commercial quantity of cannabis, namely 67.79kg

s 25(2)

Imprisonment for 15 years and/or a…

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 Gumbleton v The Queen

Details

AGLC: Gumbleton v The Queen [2017] NSWCCA 314
Case: [2017] NSWCCA 314
Decision Date: 14 December 2017

CaseChat Overview and Summary

The case of Gumbleton v The Queen involved an appeal against the sentence imposed on Gumbleton for three offences related to cannabis cultivation and supply. The appeal was heard in the High Court of Australia. Gumbleton was found guilty of cultivating and supplying cannabis in commercial quantities, with the cultivation taking place indoors and on an enhanced scale. The trial judge found special circumstances, but Gumbleton argued that the sentence did not adequately reflect these circumstances and that the sentence was disproportionate when compared to his co-offender, who received the same sentence despite potentially differing levels of cooperation.

The primary legal issues the court had to address were whether the sentence imposed sufficiently reflected the finding of special circumstances and whether the parity of sentencing between Gumbleton and his co-offender was justifiable. The court needed to determine if the sentence imposed on Gumbleton adequately gave practical effect to the special circumstances and whether the same sentence imposed on his co-offender was justifiable given the circumstances. The court also had to consider if the lack of distinction in the levels of cooperation between the co-offenders warranted a different sentence.

The High Court held that the sentence did not adequately reflect the special circumstances found by the trial judge, resulting in a miscarriage of sentencing discretion. The court found that the non-parole period should be reduced to give practical effect to the special circumstances. The court further held that the parity of sentencing between Gumbleton and his co-offender was justifiable, as both were principal participants in the enterprise, and there was little to distinguish their levels of cooperation. The court found that the favourable findings made for both defendants' subjective cases made it difficult to distinguish between them.

The final orders of the court were to allow the appeal, reduce the non-parole period to give practical effect to the finding of special circumstances, and confirm the sentence imposed on Gumbleton's co-offender as justifiable. The High Court thus addressed the issues of sentencing discretion and parity between co-offenders, ultimately affirming the need for sentences to reflect special circumstances and considering the role of each participant in the criminal enterprise.

Orders