Gumbleton v R [2017] NSWCCA 314

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gumbleton v R [2017] NSWCCA 314 Hearing dates: 17 November 2017 Decision date: 14 December 2017 Before: Bathurst CJ at [1]; R A Hulme J at [2]; Wilson J at [33] Decision: 1. Leave to appeal against sentence granted. 2. Sentence imposed in the District Court on 2 March 2017 quashed. 3. In lieu, sentence the applicant to imprisonment for an aggregate term of 5 years 3 months with a non-parole period of 3 years 3 months. The sentence will date from 20 December 2016. The applicant will become eligible for release on parole when the non-parole period expires on 19 March 2020. Catchwords: CRIME – appeal against sentence – three offences relating to cannabis cultivation and supply – enhanced indoor cultivation – commercial quantity – finding of special circumstances – insufficient reduction of non-parole period – sentencing discretion miscarried – re-sentence – reduction of non-parole period to give practical effect to finding of special circumstances – appeal allowed

CRIME – appeal against sentence – parity – same sentence imposed on co-offender – whether justifiable sense of grievance – both co-offenders principals of enterprise – little to distinguish levels of co-operation – favourable findings made for both subjective cases – difficult to distinguish between co-offenders Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B) Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Dawson v R [2013] NSWCCA 61 El-Ahmad v R [2015] NSWCCA 65 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 MD v R [2015] NSWCCA 37 Category: Principal judgment Parties: Edward Garry Gumbleton (Applicant) Regina (Respondent) Representation: Counsel: Mr J Stratton SC (Applicant) Mr N Adams (Crown)