Kay v R; Ellis v R [2017] NSWCCA 218

Kay v R; Ellis v R [2017] NSWCCA 218

The sentencing discretion miscarried because the sentence was imposed on agreed facts that overstated the cannabis leaf in the relevant bedrooms and lounge-room by 25.348 kg, and the quantity had influenced the assessment of objective seriousness. On resentencing, the corrected quantity was still substantial and the offenders knowingly participated in a large, sophisticated commercial cannabis operation for financial gain. Ellis' objective seriousness and modest subjective case meant no lesser sentence was warranted in law, so his appeal was dismissed. Kay's stronger subjective case, including his prior good record and first time in custody, justified reducing the head sentence while...

Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal against sentence granted for both applicants; Ellis' appeal dismissed; Kay's appeal allowed and his sentence quashed and replaced with a shorter head sentence.
Legal Topics
['sentence Appeal' 'knowingly Taking Part in Supply of Commercial Quantity of Cannabis Leaf' 'misstatement of Agreed Facts as to Drug Quantity' 'objective Seriousness' 'parity and Disparity Between Co Offenders' 'full Time Custody for Substantial Drug Trafficking']
['criminal Law' 'sentencing' 'drug Offences'] ['sentence Appeal' 'knowingly Taking Part in Supply of Commercial Quantity of Cannabis Leaf' 'misstatement of Agreed Facts as to Drug Quantity' 'objective Seriousness' 'parity and Disparity Between Co Offenders' 'full Time Custody for Substantial Drug Trafficking']

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Procedural Posture

Criminal Sentence Appeal / Applications for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentencing proceedings miscarried because the agreed facts overstated the amount of cannabis leaf the subject of the charges.' 'Whether the sentencing judge erred in assessing the offence as in the upper range for quantity alone and in assessing the market value of the cannabis.' 'Whether the applicants should be resentenced after correction of the cannabis quantity.' 'Whether Ellis should receive a lesser sentence because of his asserted motivation to obtain cannabis for pain management and because of his role.' "Whether Kay's sentence should be reduced to reflect his subjective case and the difference between him and Ellis."]

Ratio Decidendi

The sentencing discretion miscarried because the sentence was imposed on agreed facts that overstated the cannabis leaf in the relevant bedrooms and lounge-room by 25.348 kg, and the quantity had influenced the assessment of objective seriousness. On resentencing, the corrected quantity was still substantial and the offenders knowingly participated in a large, sophisticated commercial cannabis operation for financial gain. Ellis' objective seriousness and modest subjective case meant no lesser sentence was warranted in law, so his appeal was dismissed. Kay's stronger subjective case, including his prior good record and first time in custody, justified reducing the head sentence while...

Court Disposition

Leave to appeal against sentence granted for both applicants; Ellis' appeal dismissed; Kay's appeal allowed and his sentence quashed and replaced with a shorter head sentence.

Orders

  • ['In the matter of Ellis v R: Leave to appeal against sentence is granted.' 'In the matter of Ellis v R: The appeal is dismissed.' 'In the matter of Kay v R: Leave to appeal against sentence is granted.' 'In the matter of Kay v R: The sentence imposed by Wells SC DCJ on 13 December 2016 is quashed.' 'In the matter...