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:
I ask my brother Bongiorno to deliver the first judgment.
BONGIORNO JA:
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.
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.
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.
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.
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…
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.
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AGLC
Hanks v The Queen [2011] VSCA 7
Case
[2011] VSCA 7
Decision Date
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.