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Court of Criminal Appeal 5 April 2024

Edquist-Wheeler v R

[2024] NSWCCA 49

Drugs

Citation: Edquist-Wheeler v R [2024] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 5 April 2024
Judges: Adamson JA, Lonergan J, Sweeney J (Sweeney J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to one count of cultivating a commercial quantity of prohibited plants by enhanced indoor means and exposing a child to the cultivation, contrary to s 23A(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum penalty of 18 years imprisonment. Police located 58 cannabis plants in hydroponic systems inside a rented property in North Kellyville, where the applicant lived with his partner and 11-year-old daughter.

A critical aggravating feature was that the applicant committed this offence only 25 days after receiving an Intensive Correction Order (ICO) for a substantially similar earlier offence involving 70 cannabis plants at different premises in June 2020. The ICO was revoked upon his arrest for the fresh offence on 11 January 2022. Three additional offences were taken into account on a Form 1, involving cultivation of a small quantity of plants, possession of over 2,900 grams of cannabis leaf, and possession of cannabis resin.

Acting Judge Marien SC sentenced the applicant to 4 years and 6 months imprisonment with a non-parole period of 3 years and 4 months, incorporating a 25% discount for the guilty plea. The applicant sought leave to appeal on three grounds relating to the commencement date of the sentence, the failure to find he was in protective custody, and the failure to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred in setting the commencement date of the sentence
  • Whether the sentencing judge erred by finding the applicant was not in protective custody and failing to take that factor into account
  • Whether the sentencing judge erred by declining to find "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs the ratio between the head sentence and non-parole period

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the original sentence and resentencing the applicant. Sweeney J (with whom Adamson JA and Lonergan J agreed) found error in the original sentencing, resulting in a reduced head sentence of 3 years and 6 months imprisonment.

On the commencement date, the Court accepted that the sentence should commence six months after revocation of the ICO, taking into account that the fresh offence was the reason for that revocation, the short period into the ICO when the offence occurred, and the total criminality of both offences. The Crown had itself suggested a commencement date approximately five months after the applicant entered custody, and that concession was considered in fixing the date of 11 July 2022.

On objective seriousness, the Court assessed the offence as falling between the low and mid-range. The number of plants, 58, sat at the lower end of the commercial quantity range of 50 to 199. The applicant's commission of the offence within 25 days of commencing his ICO for a virtually identical prior offence remained a very serious aggravating feature.

On special circumstances, the Court found that the accumulation of sentences justified a finding of special circumstances, and slightly reduced the non-parole period from the standard statutory ratio. However, the overall non-parole period across the total sentence remained at 75%, which the Court considered appropriate and declined to reduce further.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Acting Judge Marien SC quashed
  • Applicant resentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months, commencing 11 July 2022, with the head sentence expiring 10 January 2026 and the non-parole period expiring 10 January 2025

Key Takeaways

  • Committing an offence only 25 days into an ICO for a substantially identical earlier offence was treated as a very serious aggravating factor, attracting significant weight in the resentencing exercise.
  • Where a fresh offence directly causes the revocation of an existing ICO, the commencement date of the new sentence may be fixed to account for the overlap between the two sentencing episodes, reflecting the total criminality involved.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be found where multiple sentences are accumulated, but the Court of Criminal Appeal indicated that any reduction in the overall non-parole period has limits, and 75% was considered the floor in this case.
  • A guilty plea to cultivating cannabis while a child lived in the same household was treated as an acceptance that the child was exposed to the cultivation process, even where physical access to the cultivation areas was controlled by external locks.
  • The resentencing produced a meaningfully shorter head sentence (3 years 6 months, down from 4 years 6 months), primarily reflecting the corrected commencement date and the finding of special circumstances rather than any reassessment of the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Callaghan v R [2006] NSWCCA 58
- Carl v R [2023] NSWCCA 190
- GP v R [2017] NSWCCA 200
- Hardey v R [2019] NSWCCA 310
- Hejazi v R [2009] NSWCCA 282
- Huang v R [2019] NSWCCA 144
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Ozan v R [2021] NSWCCA 231
- R v Kaiva (Court of Criminal Appeal (NSW), 9 November 1998, unrep)
- R v Kitchener [2003] NSWCCA 134
- R v Simpson (1992) 61 A Crim R 58
- White v R [2016] NSWCCA 190