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DPP v Rzek

DPP v Rzek

Case [2003] VSCA 97 6 August 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 68 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
BRIAN RZEK

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2003
DATE OF JUDGMENT:	6 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 97

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Criminal law - Sentence – Crown appeal – Cultivation of cannabis in commercial quantity – 147 plants - Fine of $4000 – Whether manifestly inadequate – Claim that drugs grown for medicinal purposes rejected by judge – Judge unable to conclude purpose for which crop grown – Impact of imprisonment on family members – Whether offence at low end of range of such offences – Whether fine could only be imposed in addition to a sentence of imprisonment – Whether offence ordinarily requires sentence of imprisonment – Appeal allowed – Drugs, Poisons and Controlled Substances Act 1981, s.72A – Sentencing Act 1991, ss. 49, 109(3A).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.A. Coghlan Q.C., D.P.P. with Ms S. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest Q.C., with Mr R.J. Sarah	Paul A. Vale Pty.

BATT, J.A.:

Save, perhaps, in exceptional circumstances, cultivation of a narcotic plant, being cannabis, in a commercial quantity requires the imposition of a custodial sentence, though it may possibly be suspended wholly: R. v. Clohesy[1] The maximum penalty provided by Parliament is very substantial (25 years’ imprisonment and a fine of $300,000) and is the same as for trafficking in a commercial quantity of the drug.[2] This was not an exceptional case: rather, as not infrequently happens, the evidence simply was incomplete as to the purpose of the respondent. Mr. Priest, when asked, was unable to cite any case of cultivation of cannabis in a commercial quantity where a superior court had sanctioned or imposed a non-custodial sentence. In any case, the fine of $4,000 was, as Mr. Coghlan submitted, almost derisory.[3]
[1][2002] VSCA 206 at para.8.
[2]Further, item 49 of Schedule 4 to the Magistrates’ Court Act 1989 expressly excludes the offence from the summary jurisdiction of the Magistrates’ Court.
[3]In fact for this offence a fine could not be imposed instead of, but only in addition to, imprisonment: Sentencing Act 1991, s.109(3A).

For these reasons, and those given more extensively by Eames, J.A., which I have had the benefit of reading, I agree that the appeal should be allowed and the sentence varied as his Honour proposes.

VINCENT, J.A.:

I agree for the reasons advanced by Eames, J.A. that the penalty imposed upon the respondent could be appropriately described as almost derisory having regard to all the circumstances in this case.

I also agree with the disposition of the appeal proposed by him.

EAMES, J.A.:

This is an appeal against sentence brought by the D.P.P. under s.567A of the

Crimes Act 1958. The appeal relates to sentence imposed on Brian Rzek by a Judge of the County Court on 27 January 2003. On that day the respondent had…

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 DPP v Rzek

Details

AGLC: DPP v Rzek [2003] VSCA 97
Case: [2003] VSCA 97
Decision Date: 6 August 2003

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Rzek involved the appellant, the Director of Public Prosecutions, appealing a sentence imposed on the respondent, Rzek, who was convicted of cultivating cannabis in commercial quantity. The primary dispute centred on the appropriateness of the sentence, specifically a fine of $4000, which the prosecution argued was manifestly inadequate. The matter was heard in the Supreme Court of South Australia.

The legal issues before the court encompassed whether the sentence imposed was manifestly inadequate, whether imprisonment was required for the offence, and whether a fine could only be imposed in addition to a sentence of imprisonment. The court also considered the respondent's argument that the cannabis was cultivated for medicinal purposes and the impact of imprisonment on the respondent's family members.

The court found that the sentence was manifestly inadequate, noting that the cultivation of 147 plants placed the offence at the lower end of the range of such offences. It held that the primary judge's rejection of the medicinal purpose defence did not allow him to conclude the purpose for which the crop was grown. The court concluded that the offence ordinarily required a sentence of imprisonment, and that a fine could be imposed without a custodial sentence. The appeal was allowed, and the matter was remitted to the primary judge for resentencing.

The final orders included the quashing of the sentence of imprisonment for six months and the fine of $4000, with the matter being remitted for resentencing. The court emphasised the importance of considering the nature and circumstances of the offence and the need for a sentence that reflects the seriousness of cultivating cannabis in commercial quantity.

Orders