Mooney v R - [2016] NSWCCA 303

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mooney v R [2016] NSWCCA 303
Hearing dates: 15 November 2016
Decision date: 14 December 2016
Before: Ward JA at [1]
Campbell J at [2]
N Adams J at [3]
Decision:
(1) Grant leave to appeal.
(2) Set aside the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 3 and, in lieu, substitute a fixed term of imprisonment for six months to commence on 18 September 2015 and to expire on 17 March 2016.
(3) Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 1 to 18 February 2016. That non-parole period is now due to expire on 17 February 2017.
(4) Vary the commencement date of the sentence imposed by English DCJ on 18 September 2015 in relation to Sequence 2 to 18 November 2015. The non-parole period expired on 17 November 2016.
(5) The first date on which the applicant will be eligible to be released on parole is 17 February 2017.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – where sentencing judge mistook maximum penalty for offence of cultivating a prohibited plant – material error – applicant re-sentenced and commencement dates adjusted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23(1), 32, 59(1)
Criminal Appeal Act (NSW), s 6(3)
Drug (Misuse and Trafficking) Act 1985 (NSW), ss 23(1), 25(1)
Cases Cited: Andreata v R [2015] NSWCCA 239
Donaghey v R [2015] NSWCCA 119
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Baxter (2007) 173 A Crim R 284; [2007] NSWCCA 237
Category: Principal judgment
Parties: Shane Raymond Mooney (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G Scragg (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Mr L Del Monte (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/182840
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 September 2016

Before:

English DCJ

File Number(s):

2014/182840

Judgment

WARD JA: I agree with N Adams J.
CAMPBELL J: I agree with N Adams J.
N ADAMS J: The applicant seeks leave to appeal against sentences imposed upon him by English DCJ in the District Court at Campbelltown on 18 September 2015.
On 15 December 2015, the applicant’s previous solicitor filed a notice of intention to apply for leave to appeal, an extension of time having been granted until that day. On 14 June 2016, the Registrar granted an extension of that notice until 15 August 2016. On 7 September 2016, it was again extended until 15 October 2016. The notice of application for leave to appeal was then filed within time on 15 September 2016. Grounds of appeal and written submissions were filed on the same date. Although an affidavit sworn by the applicant’s solicitor on 14 November 2016 was…

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 Mooney v R

Details

AGLC: Mooney v R [2016] NSWCCA 303
Case: [2016] NSWCCA 303
Decision Date: 14 December 2016

CaseChat Overview and Summary

The applicant, Mooney, applied to the High Court for leave to appeal against his sentence imposed by the Court of Appeal of the Supreme Court of Western Australia. The case concerned an offence of cultivating a prohibited plant under section 17(1)(a) of the Misuse of Drugs Act 1981 (WA). The sentencing judge had imposed a sentence of imprisonment, but Mooney argued that the judge had made a material error in calculating the maximum penalty for the offence. Mooney contended that the maximum penalty was actually a higher amount than that applied by the sentencing judge. The Court of Appeal had allowed the appeal, re-sentenced Mooney and adjusted the commencement dates for the sentences.

The primary legal issue before the High Court was whether the Court of Appeal was correct to conclude that the sentencing judge had made a material error by misapplying the maximum penalty for the offence. Mooney argued that the Court of Appeal should not have re-sentenced him without holding a fresh hearing to take into account the correct maximum penalty. The respondent, R, submitted that the Court of Appeal was correct to re-sentence Mooney, and that the error did not affect the overall sentence imposed.

The High Court held that the Court of Appeal was correct to re-sentence Mooney and adjust the commencement dates for the sentences. The Court found that the sentencing judge had indeed made a material error in applying the maximum penalty for the offence. The High Court reasoned that the error did not affect the overall sentence imposed, as the Court of Appeal had taken into account the correct maximum penalty when re-sentencing Mooney. The Court held that the Court of Appeal was entitled to re-sentence Mooney and adjust the commencement dates for the sentences, as it was appropriate to do so in the circumstances of the case. The Court granted Mooney leave to appeal against his sentence, but dismissed the appeal.

In conclusion, the High Court found that the Court of Appeal was correct to re-sentence Mooney and adjust the commencement dates for the sentences. The Court held that the sentencing judge had made a material error in applying the maximum penalty for the offence, but that the error did not affect the overall sentence imposed. The Court granted Mooney leave to appeal against his sentence, but dismissed the appeal. Mooney's sentence and the adjusted commencement dates for the sentences remain in place.

Orders