Hanks v The Queen

Case [2011] VSCA 7


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0219

SEAN HANKS

Appellant

v.

THE QUEEN

Respondent

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JUDGES:

REDLICH and BONGIORNO JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

18 January 2011

DATE OF JUDGMENT:

19 January 2011

MEDIUM NEUTRAL CITATION:

[2011] VSCA 7

JUDGMENT APPEALED FROM R v Hanks (Unreported, County Court of Victoria, Judge Thornton, 23 June 2010)

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CRIMINAL LAW – Sentence appeal –- Cultivation of commercial quantity of cannabis – Quantity of 66 kilograms together with sophisticated hydroponic set-up – Sentence of two years and three months’ imprisonment with a non-parole period of one year – Whether cultivation was for appellant’s own use – Whether the sentencing judge failed to give sufficient weight to the absence of any commercial profit or trafficking – No error demonstrated – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Appellant

Mr J Sutton

Revill & Papa Lawyers
For the Crown

Mr G J C Silbert SC

Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

  1. I ask my brother Bongiorno to deliver the first judgment.

BONGIORNO JA:

  1. On 22 April 2010, Sean Hanks pleaded guilty before her Honour Judge Thornton in the County Court to one count of cultivation of a commercial quantity of Cannabis L and one count of theft of the electricity used in that cultivation.

  1. On 23 June 2010, her Honour sentenced the appellant to two years' imprisonment on the cultivation charge and six months' imprisonment for the theft.  She cumulated half the sentence for the theft on the sentence for cultivation, making a total effective sentence of two years and three months' imprisonment.  Her Honour imposed a non‑parole period of one year.  Ancillary orders as to forensic samples and compensation were also made.

  1. On 24 September 2010, the appellant was granted leave to appeal his sentence by Buchanan JA in this Court.  His Honour granted leave on the ground that it was reasonably arguable that the sentencing judge failed to bring to account in sentencing him that it appeared that Hanks did not cultivate the cannabis for any commercial purpose.

  1. The facts which established the offences to which the appellant pleaded guilty, the circumstances of that plea, his background and antecedents and his psychological and psychiatric state are all very adequately set out by Judge Thornton in her sentencing remarks, a copy of which is appended to this judgment.  They need not be repeated.

  1. It is sufficient for present purposes to note that the hydroponics cultivation set‑up used by the appellant extended over a number of rooms of a housing commission house occupied by him and his uncle and that the quantity of Cannabis L upon which the cultivation charge was based was about 66 kilograms, more than twice a commercial quantity as defined in the Drugs, Poisons and Controlled Substances

Act 1981.  Almost $9,000 worth of electricity was used to grow the drug and there was evidence before the Court in which the police estimated the cost of the hydroponic equipment at between…

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Hanks v The Queen [2011] VSCA 7
Case
[2011] VSCA 7
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CaseChat Overview and Summary

The appellant, Hanks, was convicted of cultivating a commercial quantity of cannabis, specifically 66 kilograms, along with a sophisticated hydroponic setup. He appealed against his sentence of two years and three months' imprisonment, with a non-parole period of one year, arguing that the sentencing judge did not adequately consider that the cultivation was for his own use and failed to give sufficient weight to the absence of any commercial profit or trafficking.

The legal issues before the court were whether the sentencing judge erred in failing to give sufficient weight to the appellant's argument that the cultivation was for personal use and not for commercial profit or trafficking, and whether this constituted a miscarriage of justice warranting an appeal. The court needed to determine if the sentence was appropriate given the circumstances of the case and the absence of any commercial gain from the cultivation.

The court found that there was no error in the sentencing judge’s assessment. The sophisticated nature of the hydroponic setup and the quantity of cannabis cultivated indicated a significant operation, which the court deemed to be commercial in nature. The absence of evidence showing commercial profit or trafficking did not negate the commercial scale of the operation. The court held that the sentence imposed was appropriate and reflected the seriousness of the offence, and thus dismissed the appeal. The appeal was dismissed, and the original sentence stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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