Berton v The Queen - [2018] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Berton v R [2018] NSWCCA 81
Hearing dates: 23 April 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Before: Hoeben CJ at CL [1];
Rothman J at [51];
Button J at [57]
Decision:
(1) Leave to appeal be granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – cultivation of cannabis by enhanced indoor means – shed being used to hydroponically grow cannabis plants – co-offender tending plants – whether sufficient evidence to connect lessee paying rent for shed to joint criminal enterprise – sufficient evidence available – open to jury to find beyond reasonable doubt that offence proved.
Legislation Cited: Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Drug Misuse and Trafficking Act 1985 (NSW) – s 23(2)(a)
Cases Cited: Dickson v R [2017] NSWCCA 78
Gillard v The Queen [2003] HCA 64; 219 CLR 1
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Olivier Lawrence Berton aka Stephan Berton – Applicant
Regina – Respondent Crown
Representation:
Counsel:
A Bellanto QC – Applicant
E Balodis – Respondent Crown
Solicitors:
Y Maksisi – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/204442
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

1 June 2017

Before:

English DCJ

File Number(s):

2015/204442

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was found guilty by a jury in the Campbelltown District Court on 1 March 2017 that on or about 9 May 2014 at Rossmore in the State of New South Wales he did by enhanced indoor means cultivate a number of prohibited plants, namely 55 cannabis plants, which is not less than the commercial quantity for that prohibited plant.

This offence is contrary to the provisions of s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and attracts a maximum penalty of imprisonment for 15 years. 55 cannabis plants is just over the commercial quantity of 50 plants grown by enhanced indoor means.
On 1 June 2017 English DCJ sentenced the applicant to imprisonment with a non-parole period of 2 years and 22 days, commencing 1 June 2017 and expiring 22 June 2019, with a balance of term of 8 months and 7 days expiring 29 February 2020.
The applicant seeks leave to appeal against his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant relies upon a single ground of appeal: The verdict is unreasonable and cannot be supported by the evidence.

Factual background

There was no issue that in May 2014 police executed a search warrant at 55 Whitaker Road, Rossmore. This was a five acre rural property on which was constructed a house and a machinery shed. When police searched the shed, they found lights, transformers, whiteboards, buckets, ducted material on the ceilings and fans. They also found 55 hydroponically grown cannabis plants.…

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 Berton v The Queen

Details

AGLC: Berton v The Queen [2018] NSWCCA 81
Case: [2018] NSWCCA 81
Decision Date: 04 May 2018

CaseChat Overview and Summary

Berton v The Queen was a criminal case heard by the High Court of Australia. The appellant, Berton, had been convicted of cultivating cannabis by enhanced indoor means, specifically through the use of a hydroponic system in a shed. His co-offender tended to the plants within the shed. The central issue was whether the evidence was sufficient to connect Berton, who paid rent for the shed, to a joint criminal enterprise with his co-offender. The court had to determine if the evidence was adequate for a jury to find beyond reasonable doubt that Berton was part of the joint criminal activity.

The court examined the evidence presented, including the fact that Berton paid rent for the shed, and his co-offender tended the plants. The court held that the evidence, while circumstantial, was sufficient to allow a jury to conclude beyond reasonable doubt that Berton was connected to the joint criminal enterprise. The court found that the jury could reasonably infer that Berton's payment of rent for the shed and the presence of his co-offender tending the plants established a joint criminal enterprise. The evidence, when considered as a whole, supported the conclusion that Berton was part of the criminal activity.

The High Court of Australia upheld the appellant's conviction, confirming that there was sufficient evidence for the jury to find Berton guilty beyond reasonable doubt. The court concluded that the evidence, though circumstantial, was compelling enough to support the conviction. The appeal was dismissed, and Berton's conviction was upheld.

Orders