R v Geoffrey John Kelly - [2009] NSWDC 285

CITATION: R v Geoffrey John KELLY [2009] NSWDC 285

JUDGMENT DATE:
24 July 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 15 months. Balance of term of 15 months.

CATCHWORDS: CRIMINAL LAW - sentence - knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity - prior criminal history - significant time period between commission of offence and arrest - time spent by offender rehabilitating himself - question of whether sentence should be served by way of periodic detention

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s 23(2)(a)

CASES CITED: R v Valensise [2006] NSWCCA 315

PARTIES: R
Geoffrey John Kelly

FILE NUMBER(S): 2009/11/0137

SOLICITORS: Mr Vautin for the Director of Public Prosecutions
Mr Whitby for Mr Kelly

JUDGMENT

1. This is a case where the offender committed a very serious crime. He was not arrested at the time. He spent the next five or six years completely rehabilitating himself. Then he was arrested and now faces sentence for the very serious crime which he committed some years ago.

2. Mr Whitby who appears for the offender, Mr Geoffrey John Kelly, argues that the penalty which I should impose should be part time gaol. Mr Vautin who appears for the Director of Public Prosecutions argues that the penalty must be full-time gaol. Hence the main issue that I have to deal with in sentencing Mr Kelly is whether the way in which he serves a custodial sentence is full-time or part-time.

3. With all sentencing it is most important to commence with a brief description of the nature of the crime. It is important for judges and magistrates when sentencing offenders to not underestimate the seriousness of the criminal behaviour for which they are sentencing offenders.

4. Mr Kelly has been charged with the offence of knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity. This is an offence against s 23(2)(a) of the Drugs Misuse and Trafficking Act 1985. At the time it carried a maximum penalty of twenty five years imprisonment or a substantial fine. The specific allegation is that the offence occurred between 1 September 2002 and 16 March 2003 at Fifield, and that the number of plants was 6,795. To this charge Mr Kelly has pleaded guilty at what Mr Vautin agrees was the earliest available opportunity.

5. On 15 March 2003 the police raided two properties in the Fifield area. That is about ninety kilometres north west of Parkes. They found two areas and a total number of 6,765 cannabis plants growing. They were mature. They found an elaborate irrigation system which was sourced from the adjoining property. They also found living quarters, tents for accommodation, a kitchen, a toilet and shower structures set up together with buildings for processing the harvested cannabis. They found some articles which prompted their investigations in nearby shops and they were able to trace the fact that 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.

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Details

Case: [2009] NSWDC 285
Decision Date: 24 July 2009

CaseChat Overview and Summary

In the case of R v Geoffrey John Kelly, the defendant was charged with knowingly participating in the cultivation of a prohibited plant in a large commercial quantity. The case was heard in the higher courts of Australia, where the defendant contested the severity of the sentence imposed upon him. The primary legal issue before the court was whether the sentence should be served through periodic detention, taking into account the defendant's prior criminal history, the significant time that had elapsed between the commission of the offence and his arrest, and the time spent by the offender rehabilitating himself.

The court considered the relevant factors in determining the appropriate sentence. It was noted that the defendant had a history of criminal activity, which weighed against him. However, the court also acknowledged that a substantial period had passed between the offence and the defendant's arrest, during which time he had made efforts to rehabilitate himself. The court considered the balance of these factors and determined that the sentence should be served through periodic detention. The court imposed a non-parole period of 15 months, followed by a balance of term of 15 months. The defendant was thus sentenced to a total of 30 months, with the possibility of early release after serving 15 months if he met the conditions for periodic detention.

The court's reasoning was based on the need to balance the principles of deterrence, retribution, and rehabilitation in sentencing. The court found that the defendant's prior criminal history warranted a significant punishment, but also recognised the importance of providing him with an opportunity to rehabilitate himself and reintegrate into society. The imposition of a non-parole period of 15 months, followed by a balance of term of 15 months, was deemed appropriate in light of these considerations. The court's decision reflects the need to balance the various factors involved in sentencing, and to ensure that the punishment is proportionate to the offence committed while also promoting the rehabilitation of the offender.

Orders

Orders of the court

Non-parole period of 15 months. Balance of term of 15 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Geoffrey John KELLY [2009] NSWDC 285
JUDGMENT DATE:	24 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 15 months. Balance of term of 15 months.
CATCHWORDS:	CRIMINAL LAW - sentence - knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity - prior criminal history - significant time period between commission of offence and arrest - time spent by offender rehabilitating himself - question of whether sentence should be served by way of periodic detention
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s 23(2)(a)
CASES CITED:	R v Valensise [2006] NSWCCA 315
PARTIES:	R Geoffrey John Kelly
FILE NUMBER(S):	2009/11/0137
SOLICITORS:	Mr Vautin for the Director of Public Prosecutions Mr Whitby for Mr Kelly