Hendricks v The Queen - [2014] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0104

ERROL BRENDAN HENDRICKS

Applicant

THE QUEEN

Respondent

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JUDGES:	REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2014
DATE OF JUDGMENT:	21 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 185
JUDGMENT APPEALED FROM:	DPP v Hendricks (Unreported, County Court of Victoria, Judge Pilgrim, 19 December 2013)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Cultivation of cannabis in commercial quantity – Cannabis intended for personal medicinal use – Applicant sentenced to 18 months’ imprisonment, six months suspended – Relevance of risk of automatic forfeiture under Confiscation Act 1997 (Vic), s 35 to sentence – Whether sentencing discretion re-opened as a result of subsequent forfeiture of applicant’s home – Leave granted – Appeal allowed – R v Dang (2009) 197 A Crim R 53 applied – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA:

On 16 December 2013, the applicant was convicted in the County Court at Melbourne of one charge of cultivating a narcotic plant in a commercial quantity, contrary to s 72A of the Drugs Poisons and Controlled Substances Act 1981 (the Act). He was acquitted by the jury of a further charge of trafficking in a drug of dependence.

On 19 December 2013, the applicant was sentenced to 18 months’ imprisonment, with six months suspended for a period of 18 months.

Background

On 8 March 2013, police executed a Drugs, Poisons and Controlled Substance Warrant at the applicant’s address. They discovered 14 large cannabis plants growing in the rear yard of the premises with an average estimated height of two metres. A search of the applicant’s home revealed three jars containing dried cannabis, and a number of cannabis cultivation instructional books.

Together the seized plants weighed a total of 47.1 kilograms, which is, under the relevant Schedule of the Act, a commercial quantity.

When interviewed by police, the applicant maintained that he had been growing the plants in an attempt to cultivate enough cannabis to enable him to make hash oil for medicinal purposes.

Counsel who appeared on behalf of the applicant on the plea noted that police had not discovered any of the usual paraphernalia used for trafficking cannabis at the applicant’s home. Unlike many other cases involving cultivation, the cannabis was being grown quite openly, and without the use of any sophisticated or hydroponic equipment. The plants could easily be seen from neighbouring properties and the adjoining laneway. It was plain that this was not the highly skilled operation of a commercial drug trafficker.

A psychological report tendered on behalf of the applicant on the plea revealed that his mother had died from pancreatic cancer at the age of 74. The report also revealed that the applicant had an ‘almost obsessional’ belief that cannabis had a palliative effect on pancreatic…

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 Hendricks v The Queen

Details

AGLC: Hendricks v The Queen [2014] VSCA 185
Case: [2014] VSCA 185
Decision Date: 21 August 2014

CaseChat Overview and Summary

The case before the court involved an application for leave to appeal a sentence imposed on an individual for the cultivation of cannabis in a commercial quantity. The applicant claimed the cannabis was intended for personal medicinal use. The applicant was sentenced to 18 months in prison, with six months suspended. The central issue before the court was whether the risk of automatic forfeiture under the Confiscation Act 1997 (Vic), section 35, was relevant to the sentencing discretion and whether this discretion was re-opened by the subsequent forfeiture of the applicant's home. The court considered whether there was a point of principle that warranted the grant of leave to appeal and the allowance of the appeal itself.

The court determined that the risk of automatic forfeiture was relevant to the sentencing discretion, as it provided context for the applicant's actions and the potential consequences. The court also considered whether the subsequent forfeiture of the applicant's home re-opened the sentencing discretion. The court found that the forfeiture did not re-open the sentencing discretion and that there was no point of principle that warranted the grant of leave to appeal or the allowance of the appeal. The decision was based on the principles established in R v Dang (2009) 197 A Crim R 53.

The court granted leave to appeal and allowed the appeal, finding that there was no point of principle that warranted further consideration. The applicant's sentence was set aside, and the case was remitted to the original sentencing court for reconsideration in light of the court's decision. The court's decision provides guidance for future cases involving similar issues of sentencing discretion and the relevance of forfeiture under the Confiscation Act.

Orders