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

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kay v R; Ellis v R [2017] NSWCCA 218 Hearing dates: 28 August 2017 Date of orders: 08 September 2017 Decision date: 08 September 2017 Before: Hoeben CJ at CL at [1]; Davies J at [54]; Bellew J at [55] Decision: In the matter of Ellis v R

(1) Leave to appeal against sentence is granted. (2) The appeal is dismissed.

In the matter of Kay v R:

(1) Leave to appeal against sentence is granted. (2) The sentence imposed by Wells SC DCJ on 13 December 2016 is quashed. (3) In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 1 year and 10 months, commencing 29 September 2016 and expiring 28 July 2018, with a balance of term of 1 year and 2 months, expiring 28 September 2019. Catchwords: CRIMINAL LAW – sentence appeal – knowingly take part in the supply of not less than the commercial quantity of cannabis leaf – offenders sentenced on basis of erroneous agreed facts as to amount of cannabis involved – need to re-sentence – no difference in the role of each offender – significant difference in the subjective cases of the offenders – in the case of one offender, no lesser sentence warranted – in the case of the other offender, appeal allowed and sentence reduced. Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1) Drug Misuse and Trafficking Act 1985 (NSW) – s 25(2) Cases Cited: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) Robertson v R [2017] NSWCCA 205 Category: Principal judgment Parties: Zachariah Trealor Kay – Applicant Clinton Scott Ellis – Applicant Regina – Respondent Crown Representation: Counsel: Mr P Smart – Applicants Mr E Balodis – Respondent Crown