Two judges of the NSWCCA (Basten JA and Hamill J) have held that the scope of appellate review of factual findings on sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW) extends beyond the categories identified in R v O'Donoghue to include cases where the sentencing judge 'mistook the facts' in a manner material to the exercise of the sentencing discretion, consistently with House v The King and Kentwell v The Queen. This view is acknowledged to be contrary to a substantial line of NSWCCA authority and Hamill J suggests the issue should be resolved by a five-judge bench. Separately, certificates under s 43 of the Drug Misuse and Trafficking Act do not constitute evidence of the number of 'growing plants' because the section does not discriminate between seeds, parts of plants and whole plants.
The full text is available to signed-in members, including the 37 later cases that cite this judgment.
12 of the 37 citing cases carry a classified treatment. How each court treated it is available to signed-in members.