R v Geoffrey John KELLY [2009] NSWDC 285

New South Wales District Court

CITATION: R v Geoffrey John KELLY [2009] NSWDC 285

JUDGMENT DATE: 24 July 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Non-parole period of 15 months. Balance of term of 15 months.

CATCHWORDS: CRIMINAL LAW - sentence - knowingly taking part in the cultivation of a prohibited plant in the large commercial quantity - prior criminal history - significant time period between commission of offence and arrest - time spent by offender rehabilitating himself - question of whether sentence should be served by way of periodic detention

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s 23(2)(a)

CASES CITED: R v Valensise [2006] NSWCCA 315

PARTIES: R Geoffrey John Kelly

FILE NUMBER(S): 2009/11/0137

SOLICITORS: Mr Vautin for the Director of Public Prosecutions Mr Whitby for Mr Kelly

JUDGMENT

1. This is a case where the offender committed a very serious crime. He was not arrested at the time. He spent the next five or six years completely rehabilitating himself. Then he was arrested and now faces sentence for the very serious crime which he committed some years ago.

2. Mr Whitby who appears for the offender, Mr Geoffrey John Kelly, argues that the penalty which I should impose should be part time gaol. Mr Vautin who appears for the Director of Public Prosecutions argues that the penalty must be full-time gaol. Hence the main issue that I have to deal with in sentencing Mr Kelly is whether the way in which he serves a custodial sentence is full-time or part-time.

3. With all sentencing it is most important to commence with a brief description of the nature of the crime. It is important for judges and magistrates when sentencing offenders to not underestimate the seriousness of the criminal behaviour for which they are sentencing offenders.