Carl v R [2023] NSWCCA 190

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carl v R [2023] NSWCCA 190 Hearing dates: 10 July 2023 Date of orders: 10 July 2023 Decision date: 02 August 2023 Before: Leeming JA at [1] Yehia J at [8] Weinstein J at [115] Decision: (1) Grant leave to appeal (2) Appeal allowed (3) The sentence imposed on the applicant in the District Court on 7 October 2022 is set aside and, in lieu thereof: (a) Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant is sentenced to a term of imprisonment of 1 year 2 months and 27 days, to be served by way of an Intensive Correction Order. That sentence will commence today, 10 July 2023. (b) The standard conditions that apply during the term of the order are that the applicant: i. Must not commit any offence; and ii. Must submit to the guidance and supervision of Community Corrections for as long as they deem necessary. (c) The additional condition that applies during the term of the order is that the applicant, within 7 days of his release from custody, make arrangements for an appointment with his General Practitioner, Dr Ellis Vivian, for the purpose of obtaining an updated Mental Health Treatment Plan and thereafter to comply with the treatment plan. (4) The applicant is directed to attend the Community Corrections Office at Wyong within 7 days of today's date to facilitate the administration of this order. Catchwords: CRIME — Appeals — Appeal against sentence — Cultivation of cannabis plants by enhanced indoor means — 36 plants — Whether error established in assessment of objective seriousness — Where there was a denial of procedural fairness in failure to raise an intention to depart from agreed position of the parties about remorse — Where applicant had prior good character — Where applicant had mental health conditions — Where sentencing judge declined to impose a term of imprisonment to be served by Intensive Correction Order — Where applicant has already served a period of 9 months in custody — Error established — Resentenced to an Intensive Correction Order — Immediate release Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 5(1), 7(1), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 32(1), 66, 66(3) Crimes Act 1900 (NSW), s 193C(2) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Drug Misuse and Trafficking Act 1985 (NSW), s 23(1A) Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: AH v R [2020] NSWCCA 279 Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297 Barbieri v R [2016] NSWCCA 295 Butters, Jarrod Dean v R [2010] NSWCCA 1 Can v R [2023] NSWCCA 179 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DC v R [2023] NSWCCA 82 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ES v R [2019] NSWCCA 262 Hartley v R [2020] NSWCCA 330 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 Lloyd v R [2022] NSWCCA 18 Luque v R [2017] NSWCCA 226 Mandranis v R [2021] NSWCCA 97; 289 A Crim R 260 Morrie Paul DOUMIT v R [2011] NSWCCA 134 Mulato v R [2006] NSWCCA 282 Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39 Mustafa v R [2021] NSWCCA 164 MZAPC v Minister for Immigration and Border Protection (2021) 274 CLR 506; [2021] HCA 17 PB v R [2021] NSWCCA 285 Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Saunders v R [2022] NSWCCA 174 Shipman v R [2016] NSWCCA 83 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2003) 97 ALJR 107 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Sun v R [2011] NSWCCA 99 Weir v Regina [2011] NSWCCA 123 Zheng v R [2023] NSWCCA 64 Category: Principal judgment Parties: Joshua Carl (Applicant) Rex (Respondent) Representation: Counsel: D Carroll (Applicant) E Wilkins SC (Respondent)