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R v Cahill

R v Cahill

Case [2015] NSWCCA 53 2 April 2015

Intensive Correction Order

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cahill [2015] NSWCCA 53
Hearing dates: 5 March 2015
Decision date: 02 April 2015
Before: Leeming JA at [1];
Johnson J at [11];
Schmidt J at [139]
Decision:
Crown appeal dismissed

Catchwords: CRIMINAL LAW - Crown appeal - sentencing – Respondent pleaded guilty to 16 drug supply offences - three counts of supply commercial quantity of a prohibited drug - 13 counts of supply prohibited drug - four further offences taken into account on a Form 1 - offending conduct took place over three-month period - different prohibited drugs supplied - possession and use of drug supply paraphernalia - proceeds of supply to fund Respondent’s own drug use and his partying lifestyle - aggregate sentence of two years’ imprisonment to be served by way of Intensive Correction Order - held sentence manifestly inadequate - sentence not reasonably proportionate to objective gravity of offences - no proper weight given to standard non parole period - non-compliance with ss.53A(2)(b) and 54B(4) of the Crimes (Sentencing Procedure) Act 1999 - failure to comply with duty of sentencing judge - evidence on appeal of very substantial progress of Respondent towards rehabilitation - residual discretion to resentence the Respondent not exercised - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Cases Cited: Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
CMB v Attorney General for NSW [2015] HCA 9
EF v R [2015] NSWCCA 36
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hughes v R [2008] NSWCCA 48; 185 A Crim R 155
JM v R [2014] NSWCCA 297
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
PD v R [2012] NSWCCA 242
Power v The Queen [1974] HCA 26; 131 CLR 623
R v Begbie [2001] NSWCCA 206; 124 A Crim R 300
R v Clark (NSWCCA, unreported, 15 March 1990)
R v Dang [2005] NSWCCA 430
R v DH; R v AH [2014] NSWCCA 326
R v Dodd (1991) 57 A Crim R 349
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Pogson [2012] NSWCCA 225; 82 NSWLR 60
R v Shi [2004] NSWCCA 135
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
R v Zamagias [2002] NSWCCA 17
Truss v R [2008] NSWCCA 325
Wiggins v R [2010] NSWCCA 30
Texts Cited: ---
Category: Principal judgment
Parties: Regina (Appellant)
Simon William Cahill (Respondent)
Representation:
Counsel:
Ms GM O’Rourke (Appellant)
Mr…

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 R v Cahill

Details

AGLC: R v Cahill [2015] NSWCCA 53
Case: [2015] NSWCCA 53
Decision Date: 02 April 2015

CaseChat Overview and Summary

The case of R v Cahill involved a respondent who had pleaded guilty to a total of sixteen drug supply offences. The charges comprised three counts of supplying a commercial quantity of a prohibited drug, twelve counts of supplying a prohibited drug, and one additional offence that was taken into account on a Form 1. The offending conduct spanned a three-month period, during which the respondent supplied various prohibited drugs, possessed and used drug supply paraphernalia, and used the proceeds from these activities to fund his own drug use and a partying lifestyle. The court sentenced the respondent to an aggregate term of two years' imprisonment, to be served by way of an Intensive Correction Order.

The legal issues before the court were whether the sentence was manifestly inadequate and whether it was reasonably proportionate to the objective gravity of the offences. The court also needed to determine whether the sentence appropriately considered the standard non-parole period and whether the sentencing judge had complied with relevant sections of the Crimes (Sentencing Procedure) Act 1999. The court examined whether the sentence adhered to the statutory requirements and if it demonstrated proper weight to the factors relevant to sentencing.

The court found that the sentence was manifestly inadequate and did not reasonably reflect the objective gravity of the offences. The sentence did not give proper weight to the standard non-parole period, and the judge had failed to comply with sections 53A(2)(b) and 54B(4) of the Crimes (Sentencing Procedure) Act 1999. This non-compliance constituted a breach of the sentencing judge’s duty. Although the appeal presented evidence of the respondent's substantial progress towards rehabilitation, the court did not exercise its residual discretion to resentence the respondent. Consequently, the appeal was dismissed, and the original sentence was upheld.

There were no specific final orders beyond the dismissal of the appeal and the upholding of the original sentence.

Orders