Tan v R [2013] NSWCCA 164

Tan v R [2013] NSWCCA 164

The applicant cultivated 53 cannabis plants by enhanced indoor means, only three plants above the prescribed commercial quantity, was the principal offender, pleaded guilty, demonstrated significant remorse and had rehabilitation prospects. Having regard to comparable sentencing material, including appellate decisions, District Court cases and JIRS statistics, the sentencing judge's six-year starting point was outside the appropriate range established by current sentencing practice, making the sentence manifestly excessive.

Jurisdiction
Australia
Judgment Date
01 July 2013
Procedural Posture
Criminal Leave to Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed and a lesser sentence imposed.
Legal Topics
['manifestly Excessive Sentence' 'cultivation of Not Less Than a Commercial Quantity of a Prohibited Plant' 'enhanced Indoor Cultivation' 'remorse and Rehabilitation Prospects' 'use of Sentencing Statistics and Comparable Cases' 'special Circumstances']
['criminal Law' 'sentencing' 'drug Offences'] ['manifestly Excessive Sentence' 'cultivation of Not Less Than a Commercial Quantity of a Prohibited Plant' 'enhanced Indoor Cultivation' 'remorse and Rehabilitation Prospects' 'use of Sentencing Statistics and Comparable Cases' 'special Circumstances']

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Procedural Posture

Criminal Leave to Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed for cultivating not less than a commercial quantity of a prohibited plant was manifestly excessive.' "Whether the sentencing judge's starting point of six years was outside the appropriate range established by current sentencing practice."]

Ratio Decidendi

The applicant cultivated 53 cannabis plants by enhanced indoor means, only three plants above the prescribed commercial quantity, was the principal offender, pleaded guilty, demonstrated significant remorse and had rehabilitation prospects. Having regard to comparable sentencing material, including appellate decisions, District Court cases and JIRS statistics, the sentencing judge's six-year starting point was outside the appropriate range established by current sentencing practice, making the sentence manifestly excessive.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed and a lesser sentence imposed.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The sentence imposed on 27 April 2012 is quashed.' 'In lieu a non-parole period of two (2) years and two (2) months is imposed commencing 3 June 2011 expiring 2 August 2013. The balance of term is ten (10) months expiring 2 June 2014. The applicant is to be released on...