Barton v The Queen - [2013] VSCA 360

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0179
BRETT PAUL BARTON	Applicant
v
THE QUEEN	Respondent

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JUDGES	TATE and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 November 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 360
JUDGMENT APPEALED FROM	DPP v Barton (Unreported, County Court of Victoria, Judge Grant, 29 August 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – Cultivation of a commercial quantity of cannabis contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 – Offence was ‘quantity based’ – 160 cannabis plants – Applicant suffered from depression at the time of the offending – Whether Verdins limbs 1 and 3 applicable – Mental illness could not reduce moral culpability given large amount cultivated and complex planning involved in offending – General deterrence applicable – R v Verdins (2007) 16 VR 269 and Tran v The Queen [2012] VSCA 110 applied.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr M D Stanton	Lethbridges Barristers & Solicitors
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

TATE JA:

Introduction

The applicant, Mr Barton, was convicted on a plea of guilty of one count of cultivating a commercial quantity of a narcotic plant (cannabis), contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He was sentenced to two years’ imprisonment, with a nine-month non-parole period. He now seeks leave to appeal. The two grounds of appeal involve the complaint that the sentencing judge erred in his application of various principles enunciated in Verdins.[1]
[1]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).

The hydroponic cultivation of a commercial quantity of cannabis in a rented factory

Between 4 September 2012 and 29 January 2013, Mr Barton hydroponically cultivated a commercial quantity of cannabis in a factory he rented. On 15 February 2012 he leased a factory building in Cheltenham for a two-year period, for storage and business purposes. He was trying to develop a coffee house business with a friend. When he eventually defaulted on the payment of rent, the responsible real estate agents acted to repossess the property. On 29 January 2013 police attended the property and conducted a search, during which they discovered that three rooms on the ground floor of the building were being used as hydroponic cannabis growing rooms. An elaborate system of lighting, exhausts, electrical transformers, carbon filters and water channels was discovered. A total of 160 cannabis plants were located, with a combined weight (minus roots) of 132kg. When stripped, the plants produced a combined yield of air-dried flowers and leaves of between 19.8 and 22.5kg.

Part 2 of Sch 11 to the Drugs, Poisons and Controlled Substances Act stipulates that a commercial quantity of cannabis is 25 kgs or 100 plants. It is apparent that the number of cannabis plants discovered far exceeds the threshold for cultivation of a commercial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barton v The Queen

Details

AGLC: Barton v The Queen [2013] VSCA 360
Case: [2013] VSCA 360
Decision Date: 13 December 2013

CaseChat Overview and Summary

Barton was convicted of cultivating a commercial quantity of cannabis, contrary to section 72A of the Drugs, Poisons and Controlled Substances Act 1981. Barton sought leave to appeal against his sentence, claiming that the original sentencing decision failed to take into account his depression at the time of the offending. The Court of Appeal was required to determine whether the sentencing judge properly considered Barton’s mental health and whether the Verdins limbs 1 and 3 should apply to reduce Barton’s moral culpability.

The Court of Appeal found that the sentencing judge did consider Barton’s mental health and that Barton’s depression did not reduce his moral culpability. The Court found that Barton’s cultivation of 160 cannabis plants involved complex planning, which demonstrated a high degree of moral culpability. The Court found that Barton’s mental illness did not reduce his moral culpability, and that general deterrence was an appropriate consideration in sentencing. The Court of Appeal applied the principles established in R v Verdins and Tran v The Queen, and found that Barton’s appeal against sentence should be dismissed.

The Court of Appeal held that Barton’s cultivation of a commercial quantity of cannabis involved complex planning, and Barton’s mental health did not reduce his moral culpability. The Court found that general deterrence was an appropriate consideration in sentencing, and that the sentencing judge properly exercised their discretion in imposing Barton’s sentence. The Court dismissed Barton’s application for leave to appeal against sentence.

Orders