Andreata v Regina [2015] NSWCCA 239

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Andreata v Regina [2015] NSWCCA 239 Hearing dates: 14 August 2015 Date of orders: 07 September 2015 Decision date: 07 September 2015 Before: Ward JA at [1] Adams J at [2] Beech-Jones J at [3] Decision: (1) Leave to appeal be granted.

(2) Appeal allowed.

(3) Set aside the sentences imposed by the District Court on 8 July 2014 for the offence of cultivate a prohibited plant and supply a prohibited drug and, in lieu thereof, sentence the applicant as follows:

(a) for the offence of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, to a fixed term of imprisonment of 12 months commencing 8 July 2014 and expiring 7 July 2015;

(b) for the offence of cultivate prohibited plant contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985, to a term of imprisonment comprised of a non-parole period of 18 months commencing 8 October 2014 and expiring 7 April 2016 with a balance of term of 18 months commencing 8 April 2016 and expiring on 7 October 2017. Catchwords: SENTENCE APPEAL – cultivate prohibited plant by enhanced indoor means – supply cannabis – applicant found to have cultivated 61 plants – sentencing judge accepted not principal although did not accept role limited to watering plants – error in stating maximum sentence for supply charge conceded – no error in failing to afford 25% discount for cultivate charge – sentence for cultivate charge manifestly excessive – applicant re-sentenced. Legislation Cited: - Crimes (Sentencing Procedure) Act 1999 – s 32(1) - Criminal Appeal Act 1912 – s 6 - Criminal Procedure Act 1986 – s 166 - Drug Misuse and Trafficking Act 1985 – s 23(2), s 25(1), s 32(1), s 33(2) Cases Cited: - Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 - Donaghey v R [2015] NSWCCA 119 - Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 - House v R [1936] HCA 40; 55 CLR 499 - Kentwell v The Queen [2014] HCA 37; 252 CLR 601 - Markarian v R [2005] HCA 25; 228 CLR 357 - Nguyen v R [2012] NSWCCA 42 - Pham v R [2009] NSWCCA 266 - Portolesi v R [2012] NSWCCA 157 - R v AB [2011] NSWCCA 229; 59 MVR 356 - R v Olbrich [1999] HCA 54; 199 CLR 270 - R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 - Thi Lan Nguyen v R [2009] NSWCCA 181 - Tan v R [2013] NSWCCA 164 - Truong v R [2009] NSWCCA 41 - Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Adam Angelo Andreata – Applicant Regina – Respondent Representation: Counsel: T. Game SC, A. Djemal – Applicant Ms T. Smith – Respondent