Cashel v R [2018] NSWCCA 292

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cashel v R [2018] NSWCCA 292 Hearing dates: 16 July 2018 Decision date: 14 December 2018 Before: Beazley P at [1] R A Hulme at [2] Button J at [6] Decision: (1) Leave to appeal against conviction on count 1 granted. (2) Appeal against conviction on count 1 dismissed. (3) Leave to appeal against conviction on count 2 granted. (4) Appeal against conviction on count 2 allowed. (5) The conviction on count 2 for manufacturing a commercial quantity of methylamphetamine quashed, and substituted with a conviction for knowingly taking part in the manufacture of a commercial quantity of methylamphetamine. (6) The sentence imposed at first instance on count 2 is accordingly quashed. (7) On substituted count 2, the applicant is sentenced to a non-parole period of 5 years 1 month, to commence on 24 December 2014, and expire on 23 January 2020, with a parole period of 2 years 9 months, to expire on 23 October 2022. (8) The first date upon which the applicant is eligible for possible release to parole remains 23 January 2020. Catchwords: CRIMINAL LAW – appeal against conviction – discussion of nature of offences of manufacture and knowingly take part in manufacture of a prohibited drug – statutory interpretation – manufacture requires drug to be actually produced – criminality in this case captured by knowingly take part in manufacture – conviction for manufacture quashed – substituted conviction for knowingly take part in manufacture – re-sentence on count 2 CRIMINAL LAW – appeal against conviction – applicant convicted of manufacturing a precursor – precursor taken into account with regard to quantity of prohibited drug that could be produced for purposes of separate offence – whether conviction with regard to precursor should be quashed on the basis that no "remnant" of criminality required to be captured by it – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW), s 5(1) Drug Misuse and Trafficking Act 1986 (NSW), s 24 Cases Cited: Britten v Alpogut [1987] VR 929 Dayment v R [2018] NSWCCA 132 Haughton v Smith [1975] AC 476 Hosseini v R [2009] NSWCCA 52; 193 A Crim R 444 Island Maritime Limited v Filipowski [2006] HCA 30; 226 CLR 328 McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51 Mouroufas v R [2007] NSWCCA 58 Pearce v the Queen [1998] HCA 57; 194 CLR 610 R v Blyth [2001] NSWCCA 402, R v Bucic [2016] NSWCCA 297 R v Butler (1834) 6 Car. & P. 367; 172 ER 1280 R v Deng (1996) 91 A Crim R 80 R v Jackson [2004] NSWCCA 110 R v Roderick (1837) 7 Car. & P. 795; 173 ER 347 R v Thomas (1993) 67 A Crim R 308 Texts Cited: Peter Gillies, Criminal Law (4th ed,1997, LBC Information Services) New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 November 1985 at 11122 Category: Principal judgment Parties: Neil Bruce Cashel (Applicant) Regina (Respondent) Representation: Counsel: T Quilter (Applicant) B Hatfield (Respondent)