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Cavanagh v The Queen

Cavanagh v The Queen

Case [2016] VSCA 305 30 November 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0097
S APCR 2016 0190

WILLIAM CAVANAGH	Applicant
v
THE QUEEN	Respondent
S APCR 2016 0106
REYN REKHVIASHVILI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 November 2016
DATE OF JUDGMENT:	30 November 2016 (Orders), 8 December 2016 (Delivery of Reasons)
MEDIUM NEUTRAL CITATION:	[2016] VSCA 305
JUDGMENT APPEALED FROM:	DPP v Cavanagh; DPP v Rekhviashvili (Unreported, County Court of Victoria, Judge Meredith, 9 February 2016 (Conviction), 22 April 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Applicants convicted by jury of trafficking by manufacture not less than a large commercial quantity methylamphetamine and possession of equipment and precursor chemicals for trafficking – Whether verdicts unsafe and unsatisfactory – Whether open to jury to find applicants parties to joint criminal enterprise to manufacture not less than a large commercial quantity methylamphetamine or aided and abetted principal offender – Whether open to jury to find applicants possessed equipment and precursor chemicals for trafficking – Whether open to jury to find applicants had intention to traffick in not less than a large commercial quantity methylamphetamine – Verdicts not unsafe and unsatisfactory – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Applicant Cavanagh convicted by jury of trafficking by manufacture not less than a large commercial quantity methylamphetamine and possession of equipment and precursor chemicals for trafficking – Sentenced to a total effective sentence of 7 years’ imprisonment with non-parole period of 3 years – New evidence that applicant suffering undiagnosed bowel cancer at the date of sentence – Applicant terminally ill – Sentencing discretion reopened – Appeal allowed – Total effective sentence confirmed – Non-parole period of 12 months’ imprisonment substituted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Cavanagh	Mr M D Stanton	Grigor Lawyers
For the Applicant Rekhviashvili	Mr D Grace QC	Theo Magazis & Associates
For the Respondent	Mr B F Kissane QC and Mr J Gullaci	Mr John Cain, Solicitor for Public Prosecutions

OSBORN JA
WHELAN JA
PRIEST JA:

Introduction

At the conclusion of oral argument in this Court on 30 November 2016, the Court made orders refusing both applicants leave to appeal against conviction.

With respect to William Cavanagh’s application for leave to appeal against sentence, the Court made orders granting leave to appeal and allowing the appeal. The appellant was resentenced as set out below.

The Court indicated that it would later publish reasons for those orders. These are those reasons.

Overview

At a trial in the County Court, the prosecution alleged that Gregory Rodin (‘Rodin’) and the two applicants, William Cavanagh (‘Cavanagh’) and Reyn Rekhviashvili (‘Rekhviashvili’), manufactured methylamphetamine at an apartment in Warleigh Grove, Brighton (‘Warleigh Grove’), that apartment having been leased by Rodin on 22 April 2014.

Rodin had also leased a storage unit at Kennards Self Storage, Huntingdale (‘Kennards’), on 18 December 2013. It was alleged that the three men manufactured the illicit drugs at Warleigh Grove using…

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 Cavanagh v The Queen

Details

AGLC: Cavanagh v The Queen [2016] VSCA 305
Case: [2016] VSCA 305
Decision Date: 30 November 2016 (Orders), 8 December 2016 (Delivery of Reasons)

CaseChat Overview and Summary

Cavanagh v The Queen involved two applicants who were convicted by a jury of trafficking by manufacture not less than a large commercial quantity of methylamphetamine and possession of equipment and precursor chemicals for trafficking. The applicants appealed against their convictions and sentences, arguing that the verdicts were unsafe and unsatisfactory and that the sentences imposed were excessive. The applicants also raised a new medical condition that arose after their sentencing.

The central legal issues were whether the jury was open to finding the applicants parties to a joint criminal enterprise to manufacture not less than a large commercial quantity of methylamphetamine or aided and abetted the principal offender, and whether the jury could find the applicants possessed equipment and precursor chemicals for trafficking. Additionally, the court had to determine whether it was open to the jury to find that the applicants had the intention to traffic in not less than a large commercial quantity of methylamphetamine.

The court held that the verdicts were not unsafe and unsatisfactory. The jury was open to finding the applicants parties to a joint criminal enterprise or aided and abetted the principal offender, and the evidence supported such findings. The court also found that the jury could find the applicants possessed equipment and precursor chemicals for trafficking and had the intention to traffic in not less than a large commercial quantity of methylamphetamine. Therefore, the appeal against conviction was dismissed.

Regarding the sentence, the court allowed the appeal due to the new evidence of the applicant's terminal illness, which was unknown at the time of sentencing. The court confirmed the total effective sentence of 7 years’ imprisonment but reduced the non-parole period to 12 months’ imprisonment.

Orders