Brooks v The Queen - [2010] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0831

VICTOR IAN BROOKS
	v
THE QUEEN

---

JUDGES	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 August 2010
DATE OF JUDGMENT	2 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 322
JUDGMENT APPEALED FROM	R v Brooks (Unreported, County Court of Victoria, Judge Williams, 12 September 2008)

---

CRIMINAL LAW – Application for leave to appeal against conviction – Cultivating a commercial quantity of a narcotic plant – Sentence of six months’ imprisonment – Plea of guilty – Application to withdraw this plea refused – Applicant asserted he did not understand that by his plea he admitted that he intended to cultivate at least 25 kg of cannabis – Whether open to infer the applicant had such a state of mind from evidence that 42 kg actually cultivated – Whether judge erred in accepting evidence from the applicant’s former legal advisers – DPP Reference No 1 of 2004 (2005) 12 VR 290 followed – R v Broadbent [1964] VR 733 distinguished – Appeal dismissed.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Paul Horvath
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:
HARPER JA:
HANSEN JA:

On 4 December 2006, the applicant pleaded guilty to one count of cultivating a commercial quantity of a narcotic plant, namely Cannabis L, and one count of possession of that drug. He was convicted on both counts, and on 12 September 2008 sentenced to six months’ imprisonment on count 1 and three months’ imprisonment on count 2. The judge ordered that they be served concurrently. The total effective sentence was therefore 6 months’ imprisonment.

The first count is derived from s 72A of the Drugs, Poisons and Controlled Substances Act. The section is in the following terms:

A person who, without being authorized by or licensed under this Act or the regulations to do so, cultivates or attempts to cultivate a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).

A commercial quantity of Cannabis L is, when s 70 of the Act is read with Part 2 of Schedule 11, defined as 25.0 kilograms in weight, or 100 in number, of the plants. The evidence put before the judge on the plea was that the police found 72 plants weighing 42 kilograms at the applicant’s premises on 14 March 2005. The applicant does not challenge this evidence. The weight of the crop therefore put it squarely into the ‘commercial’ category.

On any view, given the plea of guilty, the sentence was merciful. And the sentence of imprisonment has been served. The applicant nevertheless seeks leave to appeal against his conviction on count 1 (cultivating a commercial quantity). The reasons which lie behind the…

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 Brooks v The Queen

Details

AGLC: Brooks v The Queen [2010] VSCA 322
Case: [2010] VSCA 322
Decision Date: 2 December 2010

CaseChat Overview and Summary

Brooks, the appellant, sought leave to appeal against his conviction for cultivating a commercial quantity of a narcotic plant. The respondent, The Queen, opposed the application. The appellant pleaded guilty but later sought to withdraw his plea, asserting that he did not understand that his plea admitted to the intention to cultivate at least 25 kilograms of cannabis. The issue before the court was whether it was open to infer from the evidence that the appellant had the requisite state of mind from the fact that 42 kilograms of cannabis were actually cultivated. Another issue was whether the judge erred in accepting evidence from the appellant’s former legal advisers.

The court held that the appellant’s plea of guilty admitted that he intended to cultivate at least 25 kilograms of cannabis, and it was open to the judge to infer that from the fact that 42 kilograms were cultivated. The court further held that the judge did not err in accepting evidence from the appellant’s former legal advisers. The court followed the decision in DPP Reference No 1 of 2004 (2005) 12 VR 290 and distinguished the decision in R v Broadbent [1964] VR 733. The court dismissed the appeal and refused the appellant leave to appeal.

The court ordered that leave to appeal must be refused. The court held that the appeal did not raise a question of law of general public importance, and the appellant did not establish that the judge’s decision was tainted by error. The court further held that the appellant’s appeal was an abuse of process and an unwarranted interference with the administration of justice.

Orders

Orders of the court

Leave to appeal must be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.