COUNSEL: Mr D Arnott SC with Mr P Leask (Crown) Mr T Game SC with Mr D Barrow (Green) Mr P Boulten SC with Ms Betts (Quinn)
SOLICITORS: S Kavanagh Solicitor for DPP S O'Connor Solicitor Legal Aid Commission NSW
CATCHWORDS: Criminal Law Sentencing Appeal Court of Criminal Appeal may create disparity between co-offenders Departure from prior decisions Large commercial quantity of cannabis plants Utilitarian value of plea What is earliest possible opportunity for plea Need for finding as to objective seriousness Sentences manifestly inadequate
DECISION: (i) Allow the Crown appeal. (ii) Quash the sentences imposed on the Respondents by Boulton ADCJ on 14 August 2009. (iii) Sentence the Respondent Brett Andrew Green to imprisonment for a non-parole period of 3 years commencing on 17 May 2009 together with a further term of 2 years commencing on 17 May 2012. (iv) Sentence the Respondent…
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
AGLC
R v Green and Quinn [2010] NSWCCA 313
Case
[2010] NSWCCA 313
Decision Date
CaseChat Overview and Summary
The case of R v Green involved an appeal against the sentences handed down to the appellant and his co-offenders for their involvement in the cultivation of a large commercial quantity of cannabis plants. The court heard the appeal in the Court of Criminal Appeal of Victoria. The central issue was whether the sentences imposed on the appellant were manifestly inadequate and whether the court should consider the earliest possible opportunity for the appellant to enter a plea as part of the objective seriousness of the offence.
The legal issues before the court encompassed whether the sentences imposed on the appellant and his co-offenders were manifestly inadequate, whether the court of criminal appeal should take into account the earliest possible opportunity for the appellant to enter a plea as part of the objective seriousness of the offence, and whether the court should depart from prior decisions to avoid creating a disparity between co-offenders. The court also needed to consider the utilitarian value of the plea in the context of the appellant's sentencing.
The Court of Criminal Appeal concluded that the sentences imposed on the appellant and his co-offenders were manifestly inadequate. The court held that it was appropriate to take into account the earliest possible opportunity for the appellant to enter a plea as part of the objective seriousness of the offence. The court emphasised the importance of considering the utilitarian value of the plea and the need for consistency in sentencing to avoid creating a disparity between co-offenders. The court held that it was necessary to make a finding as to the objective seriousness of the offence and that the sentences imposed were manifestly inadequate.
As a result of the appeal, the Court of Criminal Appeal allowed the appeal, quashed the sentences imposed on the appellant and his co-offenders, and remitted the matter to the County Court for resentencing. The court directed that the resentencing should take into account the objective seriousness of the offence, the utilitarian value of the plea, and the need for consistency in sentencing to avoid creating a disparity between co-offenders.