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R v Prior

R v Prior

Case [2019] NSWDC 870 1 November 2019

Sentencing

Drug supply

Cannabis

Cultivate cannabis by enhanced indoor means

Intensive Correctional Order

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Prior [2019] NSWDC 870
Hearing dates: 1 November 2019
Decision date: 01 November 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [70 ]

Catchwords:
SENTENCING – Drug supply (cannabis); cultivate cannabis by enhanced indoor means.
SENTENCING - Relevant factors on sentence – late plea – disputed facts – disputed expert opinion about cannabis yields and value - disputed expert opinion relevant principles applied – relevant principles cannabis cultivation and supply applied – need for therapy – medium low risk of reoffending – current employment – can Intensive Correction Order meet the purposes of punishment – community safety considered.
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Cahyadi v Regina [2007] NSWCCA 1, (2007) 168 A Crim R 41
Cheung v The Queen (2001) 209 CLR 1
Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588
Fox v Percy (2003) 214 CLR 118
GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
Karout v R [2019] NSWCCA 253,
Fangaloka v R [2019] NSWCCA 173
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Markarian v The Queen (2005) 228 CLR 357
Mill v R (1988) 166 CLR 59
Munro v R [2006] NSWCCA 350
Pullen v R [2018] NSWCCA 26
R v Daetz [2003] NSWCCA 216
R v Godden [2005] NSWCCA 160
R v Stanbouli (2003) 141 A Crim R 531
R v Storey [1998] 1 VR 359
Robertson v R [2017] NSWCCA 205
The Queen v Olbrich (1999) 199 CLR 270
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629
Category: Sentence
Parties: Michael John Prior
Director of Public Prosecutions
Representation:
Counsel:
Mr S Boland (for the offender)
Ms A Hughes, Solicitor Advocate
Solicitors:
Maguire McInerney (for the offender)

File Number(s): 2017/00194936

SENTENCE – ex tempore revised

Introduction

On 24 June 2019, the date fixed for his trial, Michael Prior accepted his guilt in relation to two serious offences:

Count 1: Cultivate cannabis plants by enhanced indoor means for commercial purpose (12 plants) pursuant to s 23(1A) of the Drug Misuse and Trafficking Act 1985; maximum penalty 15 years’ imprisonment and/or a substantial fine.

Count 2: Supply a prohibited drug (cannabis leaf) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985; maximum penalty 10 years’ imprisonment and/or a substantial fine.

The guilty pleas came after a lengthy pre-trial hearing during which Prior had disputed the legality of the police attendance at his home in Coniston at 9:00am on 29 June 2017. After a voir dire hearing, I ruled that it was neither unlawful nor improper for police to attend at his front…

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 Prior

Details

AGLC: R v Prior [2019] NSWDC 870
Case: [2019] NSWDC 870
Decision Date: 01 November 2019

CaseChat Overview and Summary

In the matter of R v Prior, the defendant faced charges related to the cultivation of cannabis using enhanced indoor methods. The case was heard in the relevant court, which provided its ruling on the appropriate sentence for the defendant. The dispute centred around several contentious issues, including the extent of the defendant's involvement in the cultivation, the potential yield and value of the cannabis, and the defendant's likelihood of reoffending. The court also had to consider the defendant's personal circumstances, including his current employment and the need for therapeutic intervention.

The legal issues that the court had to address included the proper application of sentencing principles in cases involving drug supply, particularly the cultivation of cannabis. The court had to weigh various factors, such as the defendant's late plea, the disputed facts of the case, and conflicting expert opinions regarding the yield and value of the cannabis. Furthermore, the court had to determine whether the defendant posed a significant risk of reoffending and whether an Intensive Correction Order could effectively meet the purposes of punishment and ensure community safety.

The court carefully considered the evidence and arguments presented by both parties. It found that the defendant's late plea and the disputed facts of the case warranted a reduction in sentence. The court also noted the defendant's need for therapy and his current employment, which were mitigating factors. After applying the relevant principles to the specific circumstances of the case, the court concluded that an Intensive Correction Order would be appropriate. This decision was based on the belief that such an order could adequately address the purposes of punishment and ensure community safety.

The final orders of the court included a full-time custodial sentence to be served through an Intensive Correction Order. The specific details of the order can be found at [70]. This ruling reflects the court's balanced approach to sentencing, taking into account both the seriousness of the offence and the individual circumstances of the defendant.

Orders

Orders of the court

Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [70 ]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Prior [2019] NSWDC 870

Most Recent Citation

Guillot, David John v Hender, Francis William [1998] FCA 1033

Cases Citing This Decision

Ian Taylor v Matthew Gale [2009] ACTSC 90
Citation 1 (Para 1)

…A similar legislative scheme was considered by Mildren J in R v Prior (1992) 112 FLR 388. In that case, the accused supplied to another person a substance he believed to be, but which had not been proved to be, heroin. Section 64(a) of the Poisons and Dangerous Drugs Act 1983 (NT) provided for an offence of attempt…
Guillot, David John v Hender, Francis William [1998] FCA 1033
Citation 2

…[1989] VR 799 considered Reg v Mai (1992) 26 NSWLR 371 considered Reg v Lee (1990) 1 WAR 411 considered Reg v English (1993) 10 WAR 355 considered Reg v Prior (1992) 91 NTR 53 considered Reg v Barbouttis (1995) 37 NSWLR 256 considered Kristo v The Queen (1989) 39 A Crim R 86 considered Haughton v Smith [1975] AC 476…

See all citing cases →

Cases Cited

Karout v R [2019] NSWCCA 253
Citation 1 (Para 64)

…Before an intensive correction order can be imposed community safety must be considered; Karout v R [2019] NSWCCA 253, Fangaloka v R [2019] NSWCCA 173. That obligation does not derogate from the general purposes of sentencing outlined in s 3A or other relevant matters; s 66(3). Nor does it limit the consideration of…
R v Fangaloka [2019] NSWCCA 173
Citation 2 (Para 64)

…Before an intensive correction order can be imposed community safety must be considered; Karout v R [2019] NSWCCA 253, Fangaloka v R [2019] NSWCCA 173. That obligation does not derogate from the general purposes of sentencing outlined in s 3A or other relevant matters; s 66(3). Nor does it limit the consideration of…
Moore v R [2018] NSWCCA 26
Citation 3 (Para 65)

…fect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community; Pullen v R [2018] NSWCCA 26, at [84].…
Robertson v R [2017] NSWCCA 205
Citation 4 (Para 47)

…While a Court’s sentencing discretion cannot be judicially constrained, as Simpson J pointed out in Robertson v R [2017] NSWCCA 205, a sentence must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions. While every case must be determined on its merits and each offende…
R v Pham [2015] HCA 39
Citation 5 (Para 67)

…lves discretionary judgment and the mix of factors that must be weighed in determining the appropriate since vary from case to case: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [46]. I take the view that while serious and planned, the offences require custodial sentences but all the purposes of sentenc…
R v Bateson [2011] NSWSC 643
Citation 6 (Para 66)

…nt degree of leniency the order still involves a substantial punishment and is not a light sentence and can be burdensome and onerous. In Bateson v R [2011] NSWSC 643, Buddin J noted that an Intensive Correction Order:…
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Citation 7 (Para 28)

…ciently exposed to enable an evaluation as to how the witness used his expertise in reaching his opinion: Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at [744] (85)…
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2
Citation 8 (Para 28)

…hould be sufficiently exposed to enable an evaluation as to how the witness used his expertise in reaching his opinion: Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at [744] (85)…
Cahyadi v R [2007] NSWCCA 1
Citation 9 (Para 53)

…ermines whether sentences ought to be imposed concurrently or consecutively the sentences here should be substantially concurrent; Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41…
Munro v R [2006] NSWCCA 350
Citation 10 (Para 26)

…igned to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested; Munro v R [2006] NSWCCA 350, at [17]–[19].…
Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
Citation 11 (Para 34)

…144(4) that necessary things be done to ensure a party is not unfairly prejudiced, are complied with: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229, at [68]-[69] During the course of the hearing that experience was made known to the parties.…
Markarian v The Queen [2005] HCA 25
Citation 12 (Para 52)

…is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it; Markarian v The Queen (2005) 228 CLR 357.…
R v Godden [2005] NSWCCA 160
Citation 13 (Para 48)

…s involves a disregard for public safety. Accordingly, the cultivation of cannabis for profit will usually attract a term of imprisonment: R v Godden [2005] NSWCCA 160.…
GAS v The Queen [2004] HCA 22
Citation 14 (Para 22)

…here may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case, GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198.…
R v Daetz [2003] NSWCCA 216
Citation 15 (Para 59)

…is the fact of the proceedings that is relied on by Mr Boland. It can be given in accordance with the general practice some limited weight: R v Daetz [2003] NSWCCA 216.…
Fox v Percy [2003] HCA 22
Citation 16 (Para 29)

…conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118, at [30]-[31].…
Weininger v The Queen [2003] HCA 14
Citation 17 (Para 24)

…The High Court both in Olbrich , at [24], and later in Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629, made this point specifically; a judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention unless the prose…
Cheung v The Queen [2001] HCA 67
Citation 18 (Para 22)

…the sentence to be imposed:” The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1. There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case, GAS v The Queen; SJK v The Queen [2004…
R v Olbrich [1999] HCA 54
Citation 19 (Para 22)

…formally, as in an agreed statement of facts. “It is for the sentencing judge, alone, to decide the sentence to be imposed:” The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1. There may be significant limitations as to a judge's capa…
Mill v The Queen [1988] HCA 70
Citation 20 (Para 53)

…ence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Prior’s offending behaviour; Mill v R (1988) 166 CLR 59 at [62] & [63]. While there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively the sentences here s…
The Queen v Olbrich [1999] HCA 5418
Citation 21 (Para 22)

…vidence, or admitted formally, as in an agreed statement of facts. “It is for the sentencing judge, alone, to decide the sentence to be imposed:” The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1. There may be significant limitations as to a…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 22 (Para 28)

…as to how the witness used his expertise in reaching his opinion: Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588; Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at [744] (85)…

Legislation Cited

Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 21)

Medium Neutral Citation:	R v Prior [2019] NSWDC 870
Hearing dates:	1 November 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [70 ]
Catchwords:	SENTENCING – Drug supply (cannabis); cultivate cannabis by enhanced indoor means. SENTENCING - Relevant factors on sentence – late plea – disputed facts – disputed expert opinion about cannabis yields and value - disputed expert opinion relevant principles applied – relevant principles cannabis cultivation and supply applied – need for therapy – medium low risk of reoffending – current employment – can Intensive Correction Order meet the purposes of punishment – community safety considered.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Cahyadi v Regina [2007] NSWCCA 1, (2007) 168 A Crim R 41 Cheung v The Queen (2001) 209 CLR 1 Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588 Fox v Percy (2003) 214 CLR 118 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 Karout v R [2019] NSWCCA 253, Fangaloka v R [2019] NSWCCA 173 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Markarian v The Queen (2005) 228 CLR 357 Mill v R (1988) 166 CLR 59 Munro v R [2006] NSWCCA 350 Pullen v R [2018] NSWCCA 26 R v Daetz [2003] NSWCCA 216 R v Godden [2005] NSWCCA 160 R v Stanbouli (2003) 141 A Crim R 531 R v Storey [1998] 1 VR 359 Robertson v R [2017] NSWCCA 205 The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629
Category:	Sentence
Parties:	Michael John Prior Director of Public Prosecutions
Representation:	Counsel: Mr S Boland (for the offender) Ms A Hughes, Solicitor Advocate Solicitors: Maguire McInerney (for the offender)
File Number(s):	2017/00194936