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…