Jason Uri Ivanoff v The Queen - [2015] VSCA 262

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0263

JASON URI IVANOFF	Appellant
V
THE QUEEN	Respondent

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JUDGES:	BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2015
DATE OF JUDGMENT:	17 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 262
JUDGMENT APPEALED FROM:	DPP v Ivanoff (Unreported, County Court of Victoria, Judge Chettle, 5 November 2014)

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CRIMINAL LAW – Appeal – Sentence – Previous convictions – Appellant sentenced to 18 months’ imprisonment with Community Correction Order for 2 years and 300 hours unpaid community work – Cultivation of cannabis in a commercial quantity – Cannabis intended for personal use – Appellant suffering depression due to stress at time of offending and of sentence – Appellant finding prison difficult at time of sentence – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

BEACH JA

KAYE JA:

The appellant was convicted, by the jury on his trial in the County Court, of one charge of cultivation of a narcotic plant, namely cannabis, in a commercial quantity between 24 January 2013 and 24 April 2013 contrary to s 72A of the Drugs, Poisons & Controlled Substances Act 1981 (‘the Act’). After hearing a plea, the judge sentenced the appellant to 18 months’ imprisonment, to be followed by a two year community correction order (‘CCO’), with a condition attached that he perform 300 hours of community service.

The appellant initially sought leave to appeal against both the conviction and the sentence. The leave application was determined on the papers by a judge of this Court. Leave was refused in respect of the conviction, but granted in respect of one ground relating to the sentence, namely, that the sentence was manifestly excessive.

The offending

The appellant’s offending took place at his home in Trumpington Grove, Menzies Creek. Following execution of a search warrant at those premises, the police located 34 mature cannabis plants growing, scattered amongst other plants, in a paddock at the rear of the house. They also found dried and semi-dried and mouldy plants in his bedroom. In addition, the police found three purpose-built tents, each containing a hydroponic setup, in the basement to the house. Two of those tents contained two mature plants each, and the third tent contained eight mature, but smaller, plants. There were also 48 small plants in individual pots enclosed in a plastic container.

When interviewed by the police, the appellant readily admitted to having cultivated the cannabis, but he stated that he did so in order to achieve a ‘perpetual supply’ for his personal use. A botanist who analysed the plants, gave evidence at trial that the total number of plants was 94, and that their total weight was 36.2 kilograms. Pursuant to the Act, a commercial quantity of cannabis is 25 kilograms or 100 plants.

The only issue at trial was whether the prosecution could establish the…

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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Details

AGLC: Jason Uri Ivanoff v The Queen [2015] VSCA 262
Case: [2015] VSCA 262
Decision Date: 17 September 2015

CaseChat Overview and Summary

The appellant, Jason Uri Ivanoff, appeals against his sentence of 18 months’ imprisonment with a Community Correction Order for 2 years and 300 hours unpaid community work, imposed for cultivating cannabis in a commercial quantity. Ivanoff maintains that the cannabis was intended for personal use. The appeal was heard in the High Court of Australia. Ivanoff argues that the sentence was excessive due to the circumstances of his offending and his personal circumstances, including his depression stemming from stress at the time of the offence and the difficulties he anticipated facing in prison.

The legal issues before the court were whether the sentence was appropriate in light of the appellant’s personal circumstances, the nature of the offence, and the mitigating factors presented. Specifically, the court had to consider the impact of the appellant's mental health and the intended use of the cannabis on the sentencing decision. The court was also required to assess whether the sentence imposed was proportionate to the offending and the appellant’s personal situation.

The court found that the sentence was excessive and disproportionate to the offence and the appellant's circumstances. The primary judge did not adequately consider the mitigating factors, including the appellant's mental health and the intended personal use of the cannabis. The court held that the sentence should reflect the appellant’s personal circumstances and the nature of the offending. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for reconsideration.

The final orders of the court were that the appeal was allowed, and the case was remitted to the sentencing court for reconsideration of the sentence, taking into account the mitigating factors and the proportionality of the sentence to the offence and the appellant’s personal circumstances.

Orders