Ellul v The Queen - [2021] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0024

PAUL ELLUL	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2021
DATE OF JUDGMENT:	23 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 203
JUDGMENT APPEALED FROM:	[2020] VCC 1720 (Judge Tinney)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivating narcotic plant in commercial quantity and theft – TES of 4 years, with NPP of 2 years 4 months – Whether sentencing judge erroneously minimised matters in mitigation – Whether sentencing judge’s treatment of remorse erroneous – Whether judge erred in making findings on the basis of wrong or impermissible assumptions – Errors contended for not reasonably arguable – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Marcevski Lawyers
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The applicant pleaded guilty in the County Court to one charge of cultivating a narcotic plant (Cannabis L) in a quantity that was not less than the commercial quantity (charge 1) and one charge of theft of electricity (charge 2). On 27 October 2020, following a plea hearing on 26 October 2020, the applicant was sentenced as follows:

Charge on Indictment K13206732 Offence Maximum Sentence Cumulation

1

Cultivation of a narcotic plant (Cannabis L) in a commercial quantity (contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981)

25 years

4 years

Base

2

Theft (contrary to s 74(1) of the Crimes Act 1958)

10 years

7 days

Total Effective Sentence:

4 years’ imprisonment

Non-Parole Period:

2 years 4 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

1 day

6AAA Statement:

6 years’ imprisonment with a non-parole period of 4 years 6 months

The applicant now seeks leave to appeal on the following proposed grounds:

1.The judge erred when, after listing the principal matters raised in mitigation by the applicant’s counsel, he concluded ‘in truth, there were not that many matters in mitigation’.
2.The judge erred in the way he dealt with remorse in the applicant’s case and the finding he made concerning the applicant’s remorse.
3.The judge erred when he made findings that assumed the applicant had been, or had been intending to, cultivate cannabis for the entire period that he rented the factory.

Circumstances of the offending

The applicant’s offending occurred at a factory occupied by him as lessee. In August 2017, the applicant and another person entered into a lease of the factory for a period of two years. In October 2018, the applicant became the sole lessee of the factory. In June 2019, the applicant exercised an option to renew the lease. The lease was renewed for a further two years. At the commencement of the lease, the rent was $21,900 per annum.

On 30 November 2019, a…

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 Ellul v The Queen

Details

AGLC: Ellul v The Queen [2021] VSCA 203
Case: [2021] VSCA 203
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of Ellul v The Queen involved the defendant, Ellul, who was convicted of cultivating a narcotic plant in commercial quantity and theft. The defendant applied for leave to appeal against his sentence, which was a term of imprisonment of four years, with a non-parole period of two years and four months. The appeal was heard by the High Court of Australia. The primary focus of the appeal was the contention that the sentencing judge had made several errors in determining the sentence.

The legal issues before the court included whether the sentencing judge had erroneously minimised the matters in mitigation presented by the defendant, whether the judge had erred in assessing the defendant's remorse, and whether the judge had made findings based on wrong or impermissible assumptions. The defendant argued that the sentencing judge had failed to properly consider the mitigating factors and had made incorrect assumptions that affected the final sentence.

In delivering the judgment, the court found that the errors contended for by the defendant were not reasonably arguable. The court held that the sentencing judge had appropriately weighed the mitigating factors and had correctly assessed the defendant's level of remorse. Additionally, the court determined that the sentencing judge had not made findings based on wrong or impermissible assumptions. The court further concluded that there was no reasonable prospect that a less severe sentence would be imposed if the appeal were to be successful.

As a result of these findings, the application for leave to appeal was refused. The High Court upheld the original sentence imposed by the sentencing judge, affirming that the appeal did not present a reasonable prospect of success.

Orders