Grixti v The Queen

[2011] VSCA 220

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0368

DAVID PAUL GRIXTI
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	2 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 220
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Montgomery, 3 August 2010)

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CRIMINAL LAW – Sentence – Plea of guilty – Acts supporting conviction and sentence on count 3 (possession of cannabis) already punished by conviction and sentence on count 1 (cultivation of cannabis) – Double punishment – Time extended, leave granted and appeal against conviction on count 3 allowed – Conviction and sentence on count 3 quashed and verdict of acquittal entered – Individual sentences, cumulation orders and non-parole period confirmed.   

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
No appearance for the Crown

HARPER JA:

1. I would ask Hansen JA to deliver the first judgment.

HANSEN JA:

1. On 3 August 2010 the appellant pleaded guilty in the County Court to one count of cultivating a narcotic plant, Cannabis L, in not less than a commercial quantity (count 1), one count of theft of electricity (count 2) and one count of possessing Cannabis L (count 3). 

1. Following a plea in mitigation, he was sentenced on the same day as follows:

Count	Offence	Maximum	Sentence	Cumulation
1.	Cultivation of a narcotic plant in not less than a commercial quantity [s 72A Drugs, Poisons and Controlled Substances Act 1981]	25 years	2 years	Base
2.	Theft  [s 74(1) Crimes Act 1958]	10 years	6 months	3 months
3.	Possession of a drug of dependence [s 73(1)(c) Drugs, Poisons and Controlled Substances Act 1981]	5 years	6 months	Nil
Total Effective Sentence:		2 years and 3 months’ imprisonment
Non-Parole Period:		16 months
Pre-sentence detention declared:		Nil
s 6AAA Statement:  3 years’ imprisonment with a non parole period of 2 years

1. The appellant sought leave to appeal against sentence on three grounds.  On 10 February 2011, Nettle JA granted the appellant leave on the ground that the conviction of the appellant on count 3 and the imposition of a sentence of imprisonment on that count amounts to double punishment.

1. On 14 July 2009, police attended the appellant’s home.  The appellant showed police to two bedrooms of the house which had been set up to grow cannabis hydroponically.  The first bedroom contained four mature plants and associated hydroponic equipment.  The second bedroom contained four mature plants with a similar set up.  A search of the dining room revealed eight smaller plants with

lighting.  Police also located scales and plant nutrients.  The prosecutor on the plea told the judge that the combined weight of the eight mature plants was 39.75 kilograms.  It was not clear how much the eight smaller plants weighed.     

1. Count 1 alleged that between 1 April 2009 and 14 July 2009 the appellant cultivated not less than a commercial quantity of cannabis.  I interpolate that the definition of cultivate includes harvesting.  The plea was conducted on the basis that the total weight of the cannabis seized, including all plants and the harvested cannabis to which I refer below, was 45.42 kilograms.   

1. Electricity to the value of $2,041.05 was stolen from TRUenergy by means of an illegal electricity by‑pass for use in the cultivation of the cannabis crop.  This was count 2.

1. In addition to the living plants, a hessian bag containing cannabis was found in the second bedroom and a box of dried cannabis was found in the hallway.  The total weight of this harvested cannabis was 5.43 kilograms.  This possession was the basis of count 3.

1. The appellant contends that the prosecutor conceded on the plea and on the leave application that the cannabis the subject of count 3 was the result of the cultivation the subject of count 1.  The appellant submits that the facts are analogous with the situation in R v Langdon[1] where this Court held that double punishment had occurred where the applicants were sentenced for possession of amphetamines in circumstances where that same possession had formed the factual basis of trafficking counts for which they were also sentenced.  The Court quashed the conviction and sentences on the possession counts.  The appellant submits that in the present case, the Court should quash the conviction and sentence on count 3.

   [1](2004) 11 VR 18.

1. In the respondent’s written submission it was stated that count 3 related to possession of harvested material and not cannabis that was then under cultivation and further, that cultivation and possession are distinctly different offences and there was no factual overlap between the two.

1. It remains to be noted that the judge did not cumulate any of the sentence on count 3, having accepted the prosecutor’s statement that no cumulation was necessary.

1. In my view the appellant’s submission ought be accepted.  As Gillard AJA stated in Langdon,[2] the issue of whether there has been double punishment is to be resolved by approaching the question as matter of commonsense having regard to the factual circumstances of the case at hand.

   [2]Ibid 35 [97].

1. In the present case the prosecutor stated on the plea that the dried cannabis the subject of count 3 ‘was harvested material from the crop’.  That is reasonably to be taken as a concession that the cannabis the subject of count 3 was harvested from the plants the subject of count 1 during the cultivation period of 1 April to 14 July alleged in count 1.  By his plea and conviction on count 1, the appellant admitted cultivating cannabis in the relevant period, including the cannabis which he harvested that became the subject of count 3.  The total weight of the cannabis cultivated was 45.42 kilograms, which included the 5.43 kilograms of dried cannabis the subject of count 3.  There was no suggestion that any of the cannabis recovered, whether as living plants or dried cannabis, was cultivated outside the period charged in count 1.   

1. It follows that the conviction and sentence on count 1 punished the appellant for the cultivation of all of the cannabis.  In these circumstances, it was inappropriate to impose a sentence on count 3 for that constituted a double punishment on the face of the counts. 

1. The question that then arises is what should be done.  Counsel for the appellant submitted that the appropriate disposition was, in accordance with

authority, to not merely quash the sentence but also the conviction.[3] 

[3]See for example Maher v R [2011] VSCA 136.

1. In my view that course should be followed.  I would not deal with any sentence other than that imposed on count 3.  That is to say, the sentences on counts 1 and 2 stand, but I would set aside the conviction and sentence on count 3.

1. It was submitted by the appellant that in the circumstances, the non‑parole period of 16 months also properly fell to be reconsidered.[4]  Doing so, but having regard to the circumstances of the offending, in my view the non‑parole period of 16 months fixed by the judge is to be regarded as in the nature of a lenient and appropriate period that was open to his Honour to fix.  If it be necessary to do so, I would reimpose the same non-parole period.

   [4]Ludeman v R [2010] VSCA 333 [63].

HARPER JA:

1. I agree.

(Discussion re leave to appeal against conviction out of time).

1. The orders of the Court will be: 

1.        Application for leave to appeal against conviction on count 3 is allowed and the appeal is heard instanter and allowed.

2.        The conviction and sentence on count 3 are quashed and in lieu thereof there be entered a verdict of acquittal on that count.

3.        Save as aforesaid, the sentences and declarations pronounced by the County Court on 3 August 2010 are confirmed.

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