Chhim v The Queen; Arslanov v The Queen - [2010] VSCA 347

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0949
CHAN CHHIM	Appellant
v
THE QUEEN	Respondent

S APCR 2009 0951
ORHAN ARSLANOV	Appellant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 November 2010
DATE OF JUDGMENT	17 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 347
JUDGMENT APPEALED FROM	[2009] VCC 1650 (Judge Hampel)

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CRIMINAL LAW – Sentencing – Co-offenders sentenced together – Sentence of three years and six months’ imprisonment on count of cultivation of commercial quantity of cannabis – Sentence of 12 months’ imprisonment on count of theft of electricity – Error of fact – Erroneous attribution by prosecutor of admissions of one co-offender to the other – Sentencing discretion re-opened – Co-offenders played different but equal roles in joint venture – Inability of prosecution to quantify amount of electricity stolen – Appellants re-sentenced to total effective sentence of two years and seven months’ imprisonment.

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Appearances:	Counsel	Solicitors
For the Appellant Chhim	Mr A P Lewis	Lethbridges
For the Appellant Arslanov	Mr L C Carter	Matthew White & Assocs
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I agree with Redlich JA.

REDLICH JA:

Both appellants pleaded guilty in the County Court to one count of cultivation of a commercial quantity of cannabis over a three month period in 2009 and to one count of having stolen electricity during seven weeks within that same period. On count 1 they were each sentenced to three years and six months’ imprisonment and on count 2 to 12 months’ imprisonment, three months of which was to be served cumulatively upon the sentence on count 1, making a total effective sentence of three years and nine months’ imprisonment. In both cases a non-parole period of two years was fixed. Both appellants complain that the sentences imposed were manifestly excessive. The appellant Chhim also identified a specific error on the part of the sentencing judge.

The appellant Chhim had purchased a house at 3 Turano Court, Roxborough Park at the commencement of 2009. It had been immediately converted into a ‘growhouse’ in which four rooms had been set up for the growing of cannabis. When police attended the premises to execute a search warrant, a total of 151 cannabis plants weighing between 48 and 51 kilograms were found. Some of the plants had been growing for between 10 to 12 weeks before the seizure. Further, a quantity of loose cannabis weighing 2.03 kilograms was found. The usual paraphernalia associated with a sophisticated hydroponics cultivation system was found. The electricity had been illegally diverted to provide for the growing of the crops. When the police arrived both appellants were present at the house. The appellant Chhim was at the time tending to the plants. It was not in issue that the appellant Chhim owned the house and that Mr Arslanov resided there.

Erroneous attribution of admissions to Mr Chhim

The learned prosecutor, in opening…

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.

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Details

Case: [2010] VSCA 347
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellants, Chhim and Arslanov, were convicted of cultivating a commercial quantity of cannabis and stealing electricity. They appealed their sentences, which were imposed concurrently. The High Court of Australia considered the issue of whether the sentencing court made an error of fact in attributing admissions made by one co-offender to the other. The court was required to determine whether the error warranted a reopening of the sentencing discretion, and if so, whether the appellants should be re-sentenced given their differing but equal roles in the joint venture.

The court held that the error of fact in attributing admissions made by one co-offender to the other warranted a reopening of the sentencing discretion. The court found that the prosecutor had made an erroneous attribution, which influenced the sentencing court’s determination of the appellants’ respective roles and culpability. As the co-offenders played different but equal roles in the joint venture, the court found it appropriate to re-sentence the appellants. Furthermore, the court noted that the prosecution had been unable to quantify the amount of electricity stolen, which further supported the need for a re-sentencing hearing.

Accordingly, the High Court ordered that the appellants be re-sentenced. The court determined that a total effective sentence of two years and seven months’ imprisonment was appropriate, taking into account the appellants' respective roles and the need for general deterrence. The court emphasised the importance of ensuring that co-offenders are sentenced fairly and proportionately based on their individual contributions to the offence. The appellants’ sentences were thus reduced, reflecting a more accurate understanding of their roles in the joint venture.

Orders