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Court of Criminal Appeal 14 December 2016

Mooney v R

[2016] NSWCCA 303

Drugs
CRIMINAL LAW MATERIAL ERROR APPLICANT RE

Citation: Mooney v R [2016] NSWCCA 303
Court: Court of Criminal Appeal, NSW
Date: 14 December 2016
Judge(s): Ward JA, Campbell J, N Adams J (all agreeing)

Background

The applicant pleaded guilty in the Local Court to three drug offences and was sentenced in the District Court in September 2015. The offences were two counts of supplying methylamphetamine and one count of cultivating 21 cannabis plants at his home. The cannabis plants were found during a search warrant execution and the applicant admitted they were his and were for personal use.

For the cannabis cultivation offence (Sequence 3), the sentencing judge imposed a fixed term of nine months imprisonment. The maximum penalty for that offence under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) is 10 years imprisonment, not 15 years as stated in the Crown Sentence Summary tendered at the proceedings. The sentencing judge was never corrected on this point.

The applicant sought leave to appeal against the sentence imposed for Sequence 3 only. The Crown conceded the error.

  • Whether the sentencing judge's misapprehension about the maximum penalty for the cannabis cultivation offence constituted a material error warranting appellate intervention.
  • Whether, if a material error was established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act (NSW).
  • How the commencement dates of the related sentences for Sequences 1 and 2 should be adjusted if the Sequence 3 sentence was varied.

Decision

The Court had no difficulty finding a material error. The Crown Sentence Summary incorrectly stated the maximum penalty for the cannabis cultivation offence as 15 years imprisonment, when the correct maximum is 10 years. The sentencing judge proceeded on that incorrect basis, and the error was never corrected. The Court confirmed that sentencing by reference to an incorrect maximum penalty constitutes a material error that justifies the appellate court exercising its own sentencing discretion afresh.

On resentencing, N Adams J assessed the cannabis offending as involving 21 plants for personal use, accompanied by admissions and remorse. Taking into account the applicant's subjective circumstances and applying the principle of totality across the three sentences, her Honour concluded that a fixed term of six months (rather than nine months) was appropriate for Sequence 3.

To reflect the reduced Sequence 3 sentence while preserving a degree of accumulation across all three offences, the Court also adjusted the commencement dates of the Sequence 1 and Sequence 2 sentences under s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision allows a court on appeal to vary the commencement dates of other sentences when quashing or varying one sentence. The adjustments moved both commencement dates forward by approximately one month.

Orders Made

  • Leave to appeal granted.
  • Sentence for Sequence 3 (cannabis cultivation) set aside and substituted with a fixed term of six months imprisonment, commencing 18 September 2015 and expiring 17 March 2016.
  • Commencement date of Sequence 1 sentence varied to 18 February 2016, with non-parole period expiring 17 February 2017.
  • Commencement date of Sequence 2 sentence varied to 18 November 2015, with non-parole period expiring 17 November 2016.
  • First eligible date for release on parole: 17 February 2017.

Key Takeaways

  • A sentencing judge's reliance on an incorrect maximum penalty is a material error that enlivens the Court of Criminal Appeal's jurisdiction to resentence under s 6(3) of the Criminal Appeal Act (NSW).
  • The error here arose from a Crown Sentence Summary that overstated the maximum for cannabis cultivation under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) as 15 years, when the correct maximum is 10 years.
  • Under s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court varying one sentence on appeal may also adjust the commencement dates of other sentences to preserve the intended overall sentencing structure.
  • Where cannabis cultivation is for personal use and accompanied by early admissions and remorse, those factors bear on the appropriate fixed term, alongside the totality principle as it applies to concurrent and cumulative sentences.
  • Responsibility for ensuring the accuracy of sentencing documents lies with all parties: an uncorrected error in a Crown tendered document led directly to the resentencing exercise in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1), 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23(1), 32, 59(1)
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- Andreata v R [2015] NSWCCA 239
- Donaghey v R [2015] NSWCCA 119
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- R v Baxter (2007) 173 A Crim R 284; [2007] NSWCCA 237