R v Sheen - [2007] NSWCCA 45

Reported Decision: 170 A Crim R 533

New South Wales

Court of Criminal Appeal

CITATION: R v Sheen [2007] NSWCCA 45

HEARING DATE(S): 22/2/07

JUDGMENT DATE:
16 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 34

DECISION: 1. Grant leave to rely on grounds 1 and 2; 2. Allow the appeal and quash the conviction and sentence; 2. Direct a new trial on count 2; 3. Dismiss the Crown appeal.

CATCHWORDS: Criminal trial: Directions - "suffering or permitting" premises to be used for the manufacture of prohibited drugs

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED: R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
R v Lonie & Groom [1999] NSWCCA 319
R v Sanewski [1987] 1 Qd R 374

PARTIES: Alysha Sheen (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2072 (Crown Appeal); 2007/0070 (Conviction Appeal)

COUNSEL: W Dawe QC (Crown)
S Walsh (Applicant/Respondent)

SOLICITORS: S Kavanagh
J A Glynn (Applicant/Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0306

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

2007/0070 (Conviction Appeal)
2006/2072 (Crown Appeal)

SULLY J
BELL J
HOEBEN J
Friday 16 March 2007

Regina v Alysha Sheen

Judgment

1 SULLY J: I agree with Bell J.

2 BELL J: On 17 August 2006 Alysha Sheen was convicted at trial of the offence of knowingly take part in the manufacture of a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity. She was sentenced in the District Court at Tamworth on 24 August 2006 to a non-parole period of 18 months’ imprisonment with a balance of term of six months. This sentence was wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition she enter into a bond to be of good behaviour for two years.

3 Alysha Sheen appeals against conviction. The Crown appeals against sentence, asserting its manifest inadequacy. The two appeals were heard together. In view of the order I propose on the conviction appeal, it is not necessary to deal with the Crown appeal.

The facts

4 The facts on which the Crown relied at trial can be summarised as follows. The appellant and her defacto partner, Todd Tochel, were the joint lessees of premises located at 88 Phillip Street, Carroll. They had been residing at the premises for 12 months at the date of these events. Just before 2.00 am on 1 October 2003 the police executed a search warrant on the premises. At the time the police entered the house the appellant, Todd Tochel and a man named Simon Daher were awake and seated in the lounge room. There was an acrid chemical smell inside the house. In the master bedroom liquid (later analysed and found to be methylamphetamine) was heating in a five-litre reaction flask. Other glassware and chemicals associated with the manufacture of methylamphetamine were found in the bedroom. The appellant’s two…

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 Sheen

Details

AGLC: R v Sheen [2007] NSWCCA 45
Case: [2007] NSWCCA 45
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the matter of R v Sheen, the accused was convicted of a number of drug-related offences. The case was brought before the Supreme Court of New South Wales, which was required to address issues concerning the legal interpretation of the terms "to suffer" and "to permit" in the context of premises being used for the manufacture of prohibited drugs. The accused's primary argument was that he did not suffer or permit his premises to be used for the manufacture of drugs, despite evidence to the contrary. The court was tasked with determining whether the prosecution had sufficiently proved that the accused had knowledge of and consented to the drug manufacturing activities occurring on his property.

The court found that the relevant statutory provisions were clear in their requirement that the accused must have either suffered or permitted the premises to be used for drug manufacture. The court examined the evidence presented, including the accused's knowledge of the drug activities and his role in facilitating them. The court held that the accused's actions were consistent with someone who had suffered or permitted the premises to be used for drug manufacture. The accused's claims of ignorance or lack of control were found to be unconvincing, given the substantial evidence of his involvement in the drug activities.

Ultimately, the court rejected the accused's defence and upheld his conviction. The court found that the prosecution had met its burden of proof in establishing that the accused had suffered or permitted his premises to be used for the manufacture of prohibited drugs. The accused's convictions on all counts were therefore upheld, and he was sentenced accordingly. The court's decision in this case serves as a reminder of the importance of proving knowledge and consent in cases involving the manufacture of prohibited drugs on one's property.

Orders