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Ivanoff v The Queen

Ivanoff v The Queen

Case [2015] VSCA 116 21 May 2015

Criminal Liability

Sentencing

Evidence

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0263

JASON URI IVANOFF	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	21 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 116
JUDGMENT APPEALED FROM:	DPP v Ivanoff (Unreported, County Court of Victoria, Judge Chettle, 5 November 2014)

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DETERMINED ON THE PAPERS

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CRIMINAL LAW – Conviction – Cultivation of a commercial quantity of cannabis – Total of 94 cannabis plants (36.42 kilograms) found at applicant’s home – Applicant admitted to growing cannabis for personal use, but denied having known or believed it would come to commercial quantity – Only issue at trial was whether applicant intended to grow cannabis in at least commercial quantity – Applicant had previously pleaded guilty to attempting to traffic in commercial quantity of cannabis – Whether admission of evidence of prior conviction resulted in substantial miscarriage of justice – Crown sought to lead evidence as coincidence evidence under s 98 of Evidence Act 2008 – Evidence did not constitute coincidence evidence – Trial judge correct in ruling evidence relevant to accused’s state of mind and admissible on that basis – Not reasonably arguable that admission of evidence resulted in substantial miscarriage of justice in any event – Leave to appeal refused.

CRIMINAL LAW – Conviction – During record of interview police indicated to applicant that cannabis seized from home amounted to a trafficable quantity rather than commercial quantity – Whether trial judge erred by directing jury to disregard relevant portion of the record of interview on basis that it was not relevant – Evidence of what police may have mistakenly believed regarding quantity of drugs not relevant to issues at trial – Ground not reasonably arguable – Leave to appeal refused.

CRIMINAL LAW – Sentence – Applicant sentenced to 18 months’ imprisonment with 2 year CCO (300 hours community service) – Whether sentence manifestly excessive – Evidence that drugs grown for personal use – Ground reasonably arguable – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
No Appearances

WEINBERG JA:

The applicant stood trial in the County Court charged with cultivation of a commercial quantity of a narcotic plant, namely cannabis, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981. This offence was said to have been committed between 24 January and 24 April 2013. He was sentenced on 5 November 2014 to 18 months’ imprisonment, to be followed by a 2 year Community Correction Order (‘CCO’) with a condition attached that he perform 300 hours of community service. He now seeks leave to appeal against both conviction and sentence.

The applicant’s offending came to light following the execution of a search warrant, on 24 April 2013, at his home in Trumpington Grove, Menzies Creek. There police located 34 mature cannabis plants growing,…

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 Ivanoff v The Queen

Details

AGLC: Jason Uri Ivanoff v The Queen [2015] VSCA 116
Case: [2015] VSCA 116
Decision Date: 21 May 2015

CaseChat Overview and Summary

The case of Ivanoff v The Queen involved the applicant appealing against his conviction and sentence for cultivating a commercial quantity of cannabis. The applicant admitted to growing cannabis for personal use but denied knowing or believing that it would reach a commercial quantity. The total number of cannabis plants found at the applicant's home was 94, amounting to 36.42 kilograms. The primary issue at trial was whether the applicant intended to grow cannabis in at least a commercial quantity. The applicant had previously pleaded guilty to attempting to traffic in a commercial quantity of cannabis.

The legal issues the court had to decide included whether the admission of evidence of the applicant's prior conviction resulted in a substantial miscarriage of justice, whether the trial judge correctly ruled that the evidence was relevant to the applicant's state of mind and thus admissible, and whether the trial judge erred in directing the jury to disregard a relevant portion of the record of interview. The court found that the evidence of the prior conviction did not constitute coincidence evidence and was relevant to the accused's state of mind. The court also ruled that the portion of the record of interview regarding the quantity of drugs seized was not relevant to the issues at trial. The court found that the sentence was reasonably arguable as being manifestly excessive given the evidence that the drugs were grown for personal use.

The court ruled that the admission of the prior conviction evidence did not result in a substantial miscarriage of justice. The court also determined that the trial judge correctly ruled the evidence relevant and admissible on the basis of the accused's state of mind. The court found that it was not reasonably arguable that the admission of evidence resulted in a substantial miscarriage of justice in any event. However, the court found that the sentence was reasonably arguable as being manifestly excessive and granted leave to appeal on the sentence. The court refused leave to appeal on the other grounds.

Orders