R v Ashton [2002] NSWCCA 498

Reported Decision : 137 A Crim 73

New South Wales Court of Criminal Appeal

CITATION : R v Ashton [2002] NSWCCA 498 FILE NUMBER(S) : CCA 60610/99 HEARING DATE(S) : 11/12/2002 JUDGMENT DATE : 13 December 2002

PARTIES : Regina v Scott Richard Ashton JUDGMENT OF : Howie J at 1; Buddin J at 46

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0126 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : LMB Lamprati - Crown R Jankowski - Applicant SOLICITORS : SE O'Connor - Crown Leigh Johnson, Lawyers - Applicant CATCHWORDS : Criminal Practice and Procedure - Appeal - Fresh evidence admitted on applicant's mental state at time of sentence - extensive delay in hearing of appeal - sentence not served. Drug Misuse and Trafficking Act 1985 - s 23 LEGISLATION CITED : Justices Act 1902 - s 51A Crimes (Administration of Sentences) Act 1999- ss 92, 163 Criminal Appeal Act 1912 Bailey (1988) 35 A Crim R 458 CASES CITED: R v Ehrenberg (NSWCCA, unreported, 14 December 1990) Goodwin (1990) 51 A Crim R 328 R v T (NSWCCA, unreported, 19 June 1995) DECISION : See para. 45.

IN THE COURT OF CRIMINAL APPEAL 60610/99

HOWIE J BUDDIN J

FRIDAY 13 DECEMBER 2002 R v Scott Richard ASHTON Judgment 1 HOWIE J: On 15 September 1999 the applicant was sentenced by his Honour Judge Nield to imprisonment for two years made up of a minimum term of 18 months and an additional term of 6 months. His Honour ordered that the sentence be served by way of periodic detention to commence on 30 September 1999. The applicant has not served one day of that sentence. The prison records reveal that he has been treated as "away without leave" for the entirety of his sentence. This is despite the fact that the applicant was not granted bail pending the hearing of this appeal until 18 April 2002 even though the application for leave to appeal was filed on 14 October 1999. This situation is made even more extraordinary when counsel appearing for the applicant has conceded that the sentence imposed by Judge Nield was not, on the material then before his Honour, excessive or otherwise erroneous. 2 Notwithstanding these matters, at the conclusion of the hearing of the appeal I came to the view that the application for leave should be granted and the appeal allowed. I proposed that the sentence imposed by Judge Nield be quashed and in lieu that the applicant be sentenced to imprisonment for 18 months but that the sentence be suspended on the applicant entering into a bond for 18 months subject to certain conditions. As the applicant was not present at the hearing of the appeal, the matter was stood over for sentence and his bail continued until today. The following are the reasons why I came to the view that the appeal should be determined in the manner that I have proposed. 3 On 25 March 1999 the applicant pleaded guilty in the Local Court to a charge of supplying cannabis contrary to s 23 of the Drug Misuse and Trafficking Act. That offence carried a maximum penalty of 10 years imprisonment. The applicant was committed to the District Court for sentence under the provisions of s 51A of the Justices Act and adhered to his plea before Judge Nield. 4 For the purposes of the present appeal and having regard to the basis upon which this Court is asked to intervene, the facts can be very briefly stated. On 17 April 1999 police attended at premises in North Ryde from which the applicant operated an excavation business. A search of the premises revealed that in one room there were 114 cannabis plants each about one foot in height. The plants were being grown using hydroponic equipment including lamps, heaters, gas cylinders and water containers. In another room there were 41 cannabis plants each about two feet in height being grown in a similar manner. The applicant admitted his involvement in the cultivation of these plants. He told police that in January of that year a person, whom he would not name, brought the plants to his premises. He assisted this person in cultivating those plants and growing the 114 smaller plants from cuttings taken from the original plants. The applicant stated that he was growing the plants so that they could be sold by this person and with his share of the proceeds the applicant could pay off some of his business debts. 5 The applicant gave evidence before the sentencing judge and confirmed the version that he had given to police. 6 The applicant's father also gave evidence. He and his wife had adopted the applicant when he was about five weeks old. Part of his evidence was as follows: