HEWITT v REGINA [2007] NSWCCA 353

HEWITT v REGINA [2007] NSWCCA 353

The sentencing judge erred by treating the applicant's prior cultivation conviction as serious aggravation and by finding that the offences were part of organised criminal activity, where the evidence showed only a low level of planning and did not establish ongoing or organised drug supply. However, the remaining grounds were not made out and, having regard to the offences, quantities, applicant's circumstances and applicable range, no lesser sentence was warranted; the sentences were not manifestly excessive.

Jurisdiction
Australia
Judgment Date
17 December 2007
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted, but the appeal dismissed.
Legal Topics
['factors in Aggravation' 'prior Convictions' 'planned or Organised Criminal Activity' 'cannabis Supply' 'cannabis Cultivation' 'manifest Excess']
['criminal Law' 'sentencing' 'drug Offences'] ['factors in Aggravation' 'prior Convictions' 'planned or Organised Criminal Activity' 'cannabis Supply' 'cannabis Cultivation' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the sentencing judge erred by treating the applicant's 1991 conviction for cultivating cannabis as a matter of serious aggravation." 'Whether the sentencing judge erred by regarding each offence as aggravated because it was part of an organised criminal activity.' 'Whether the sentencing judge erred by failing to have regard to the likely quality of the cannabis leaf and resin.' 'Whether the sentencing judge failed to take into account the likelihood that the applicant would consume some of the cannabis leaf and resin himself.' "Whether the sentencing judge failed to take into account the applicant's abstinence from cannabis, steps towards rehabilitation and low likelihood of re-offending." 'Whether the sentences were manifestly excessive.']

Ratio Decidendi

The sentencing judge erred by treating the applicant's prior cultivation conviction as serious aggravation and by finding that the offences were part of organised criminal activity, where the evidence showed only a low level of planning and did not establish ongoing or organised drug supply. However, the remaining grounds were not made out and, having regard to the offences, quantities, applicant's circumstances and applicable range, no lesser sentence was warranted; the sentences were not manifestly excessive.

Court Disposition

Leave to appeal granted, but the appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']