Llewellyn v Tasmania - [2018] TASCCA 12

[2018] TASCCA 12

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Llewellyn v Tasmania [2018] TASCCA 12

PARTIES:  LLEWELLYN, Timothy Robert
  v
  STATE OF TASMANIA

FILE NO:  CCA 724/2018
DELIVERED ON:  29 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  17 April 2018
JUDGMENT OF:  Blow CJ, Brett J and Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in a controlled substance – Growing and possessing cannabis intending that some of it be sold – Sentence of nine months' imprisonment with six months thereof suspended.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  G Stevens
             Respondent:  L Mason SC
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASCCA 12
Number of paragraphs: 31

Serial No 12/2018
File No CCA 724/2018

TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
BRETT J (Dissenting)
MARSHALL AJ
29 August 2018

Orders of the Court (30 May 2018)

Appeal allowed.

Sentence of nine months' imprisonment, with six months thereof suspended, set aside.

Appellant sentenced to nine months' imprisonment with effect from 28 April 2018, with the unserved balance of that sentence suspended on condition that he commit no offence punishable by imprisonment for a period of two years from 30 May 2018.

Serial No 12/2018
File No CCA 724/2018

TIMOTHY ROBERT LLEWELLYN v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
29 August 2018

This is a sentencing appeal. The appellant, Timothy Llewellyn, pleaded guilty before a magistrate to a single charge of trafficking in a controlled substance, namely cannabis. He was subsequently sentenced by Slicer AJ to nine months' imprisonment, with six months of that sentence suspended on condition that, for a period of three years following his release from prison, he was to commit no crime or offence involving any commercial dealing in a prohibited plant or substance. He appealed, contending that his sentence was manifestly excessive. On 30 May 2018 this Court allowed the appeal, set aside the original sentencing orders, and imposed a substituted sentence. These are my reasons for joining in the making of those orders.
The charge alleged that the appellant, his wife, and a man related to her trafficked in cannabis on a single day, namely 6 September 2017. On that day police officers searched a property occupied by the three defendants. In a shed they found two grow rooms in which cannabis plants were being grown hydroponically. The first grow room contained seven small cannabis plants, four of which were in a propagation tray. The second grow room contained four mature cannabis plants, 13 small cannabis plants, and quantities of cannabis leaf. In the house, they also found 75.5 grams of cannabis leaf, 23 snap lock bags containing a total of 158.3 grams of cannabis bud, a set of scales, two "tick sheets", $310 in cash, and…

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 Llewellyn v Tasmania

Details

AGLC: Llewellyn v Tasmania [2018] TASCCA 12
Case: [2018] TASCCA 12
Decision Date: 29 August 2018

CaseChat Overview and Summary

The appellant, Llewellyn, appealed against a sentence imposed by a magistrate for trafficking in a controlled substance, specifically for growing and possessing cannabis with the intention of selling some of it. The sentence comprised nine months' imprisonment, with six months suspended. The appeal was heard by the Supreme Court of Tasmania, comprising Blow CJ, Brett J, and Marshall AJ.

The central legal issue before the Full Court was whether the sentence imposed by the magistrate was manifestly excessive or inadequate, thereby providing grounds for interference on appeal. This required the court to consider the principles of sentencing for drug trafficking offences and to assess whether the magistrate had erred in their application of these principles in determining the appropriate penalty for the appellant's conduct.

The Court reasoned that while trafficking in cannabis was a serious offence, the magistrate had taken into account relevant mitigating factors, including the appellant's prior good character and the fact that the cannabis was grown for personal use with only a small surplus intended for sale. The court found that the magistrate had correctly balanced these mitigating factors against the gravity of the offence. Consequently, the sentence of nine months' imprisonment with six months suspended was deemed to be within the appropriate range and not manifestly excessive. The appeal against sentence was therefore dismissed.

Orders