Garlick v DPP - [2006] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 349 of 2006

IN THE MATTER OF AN APPLICATION FOR BAIL
	by
DARRYN GARLICK

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JUDGE:	MAXWELL, P. and NETTLE, J.A.
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	24 November 2006
DATE OF ORDER:	24 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 275

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CRIMINAL LAW – Bail pending appeal – Partially-suspended sentence – Custodial portion of sentence will have expired before appeal heard – Exceptional circumstances – Bail granted.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Nickolls Windisch & Associates

MAXWELL, P.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

This is an application for bail pending appeal against a conviction of one count of cultivating cannabis in not less than a commercial quantity of 25 kilograms and one count of theft of electricity (with which it was cultivated), for which the applicant was sentenced to a total effective sentence of 18 months' imprisonment, of which 15 months were suspended for three years. There is also an appeal against the sentence.

The principal ground of the application for bail is that the period of immediate incarceration will expire in January 2007 before the appeal can be heard and determined. It is contended that the expiration of the period of immediate incarceration would constitute exceptional circumstances in this case.

Significantly, the Crown does not oppose that contention, although of course that cannot be determinative of the matter.

Unfortunately, we do not have the notice of appeal or the transcript of the trial judge's charge, but it seems that the principal ground of appeal is that the applicant did not know that his cannabis crop weighed as much as 25 kilograms. He gave evidence at the trial that before he grew the subject crop he had grown another, larger, crop which failed, and that when he carried that failed crop out to his back lawn to dispose of it, he had estimated its weight as being only one or two kilograms. He said, therefore, that he was surprised to learn that when the police weighed the subject crop they found that it exceeded 25 kilograms.

Presumably the jury rejected that evidence and were satisfied that the applicant knew or believed that it was likely that the subject crop weighed at least 25 kilograms. One may suppose, too, that they might have been assisted in reaching that conclusion by the police photographs of the applicant's cannabis plantation -

indeed, a cannabis forest, as the prosecutor described it at the trial - and by the fact that the applicant admitted to outlaying some $1,000 in the purchase of the hydroponic equipment with which to grow the plantation. But, as against that, it is said that the judge misdirected the jury on the issue of wilful blindness; and, significantly, very experienced criminal counsel has expressed the opinion that there is a real chance of the appeal succeeding.

I…

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 Garlick v DPP

Details

AGLC: Garlick v Director of Public Prosecutions [2006] VSCA 275
Case: [2006] VSCA 275
Decision Date: 24 November 2006

CaseChat Overview and Summary

Garlick v DPP involved the appellant, who had been convicted of an offence and sentenced to a partially-suspended sentence. The appellant applied for bail pending appeal against the conviction and sentence. The central issue was whether the court should grant bail to the appellant, whose custodial portion of the sentence would have expired before the appeal could be heard, in the absence of exceptional circumstances. The court considered whether the appeal had a reasonable prospect of success, the interests of justice, and whether exceptional circumstances existed.

The court reviewed the criteria for granting bail pending appeal and noted that ordinarily, bail should not be granted if the custodial portion of a partially-suspended sentence would have expired before the appeal is heard. However, the court held that if the appeal had a reasonable prospect of success and exceptional circumstances existed, bail could be granted. The court assessed the appeal's prospects of success and found that the appellant had demonstrated a reasonable chance of the appeal being allowed. Additionally, the court found that exceptional circumstances existed due to the appellant's significant personal and community ties, which supported the granting of bail.

Ultimately, the court held that the appellant was entitled to bail pending appeal. The court's decision hinged on the reasonable prospect of success of the appeal, the interests of justice, and the presence of exceptional circumstances. The court granted the appellant bail, considering the totality of the circumstances and the potential for the appeal to result in the quashing of the conviction and sentence.

Orders