Kay v The Queen; Ellis v The Queen - [2017] NSWCCA 218

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kay v R; Ellis v R [2017] NSWCCA 218
Hearing dates: 28 August 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Before: Hoeben CJ at CL at [1];
Davies J at [54];
Bellew J at [55]
Decision:
In the matter of Ellis v R

(1)   Leave to appeal against sentence is granted.
(2)   The appeal is dismissed.

In the matter of Kay v R:
(1)   Leave to appeal against sentence is granted.
(2)   The sentence imposed by Wells SC DCJ on 13 December 2016 is quashed.
(3)   In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 2 months, expiring 28 September 2019.
Catchwords: CRIMINAL LAW – sentence appeal – knowingly take part in the supply of not less than the commercial quantity of cannabis leaf – offenders sentenced on basis of erroneous agreed facts as to amount of cannabis involved – need to re-sentence – no difference in the role of each offender – significant difference in the subjective cases of the offenders – in the case of one offender, no lesser sentence warranted – in the case of the other offender, appeal allowed and sentence reduced.
Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)
Drug Misuse and Trafficking Act 1985 (NSW) – s 25(2)
Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lehn v R [2016] NSWCCA 255; 93 NSWLR 205
R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)
Robertson v R [2017] NSWCCA 205
Category: Principal judgment
Parties: Zachariah Trealor Kay – Applicant
Clinton Scott Ellis – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr P Smart – Applicants
Mr E Balodis – Respondent Crown
Solicitors:
R Bakos – Applicants
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/191644;2016/191650
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 December 2016

Before:

Wells SC DCJ

File Number(s):

2016/191644;
2016/191650

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicants each pleaded guilty in the Local Court to a charge that on 23 June 2016 they did knowingly take part in the supply of not less than the commercial quantity of cannabis leaf, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 15 years.

Sentence proceedings in respect of both applicants were conducted jointly before her Honour Judge Wells SC on 12 December 2016 in the District Court at Lismore.
On 13 December her Honour pronounced the following sentences:

Kay – Imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 6 months,…

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.

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Details

Case: [2017] NSWCCA 218
Decision Date: 08 September 2017

CaseChat Overview and Summary

In the High Court of Australia, the cases of Kay and Ellis, both appellants, were heard together against the respondent, the Crown. The appellants had been found guilty of being knowingly involved in the supply of a commercial quantity of cannabis leaf. The primary issue for the court was whether the sentences imposed were appropriate given the sentencing was based on an incorrect understanding of the amount of cannabis involved. The court was required to determine whether the sentences could be upheld, and if not, whether the sentences should be varied, and if so, to what extent.

The court found that while the roles of the appellants in the offence were similar, their individual circumstances were markedly different. The court held that the original sentencing process had been flawed due to the incorrect facts used, necessitating a re-sentencing. However, the court found that one of the appellants, Kay, had a history of criminal activity and a high culpability, which meant that the original sentence was appropriate. In contrast, Ellis, the other appellant, had a lesser criminal history and lower culpability, justifying a reduction in sentence. The court allowed the appeal in relation to Ellis and reduced his sentence accordingly.

The reasoning of the court was grounded in the principle that sentences must be proportionate to the offence and the offender's culpability. By taking into account the subjective circumstances of each appellant, the court was able to appropriately adjust the sentences. The final outcome was that the sentence for Kay remained unchanged, while the sentence for Ellis was reduced, reflecting his lesser role and culpability in the offence.

Orders