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Kohari v The Queen

Kohari v The Queen

Case [2017] VSCA 33 1 March 2017

Criminal Liability

Appeal

Miscarriage of Justice

Plea of Guilty

Consciousness of Guilt

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0129

ROSS WILLIAM KOHARI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 January 2017, 3 and 16 February 2017
DATE OF JUDGMENT:	1 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 33
JUDGMENT APPEALED FROM:	DPP v Kohari (Unreported, County Court of Victoria, Judge Tinney, 10 December 2015)

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CRIMINAL LAW – Conviction – Charge of cultivation of a commercial quantity of cannabis and other charges – Whether miscarriage of justice arises by virtue of holding the applicant to his plea of guilty when plea was not motivated by genuine acknowledgement of guilt – Whether issuable question of guilt exists regarding applicant’s intention to cultivate a commercial quantity of cannabis – Appeal allowed – Applicant not adequately informed of elements of commercial cultivation offence – Applicant’s plea of guilty did not evince a ‘consciousness of guilt’ – Conviction on charge of cultivation of a commercial quantity of cannabis quashed – New trial ordered on that charge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Ms E McKinnon	Falcone and Adams Lawyers
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions
For Mr G Thexton and Mr R Hamilton	Ms E A Bennett	Colin, Biggers & Paisley

WEINBERG JA
KYROU JA:

On 8 September 2015, the applicant pleaded guilty to a total of eight offences, five of them indictable, and three summary. On 10 December 2015, he was sentenced in the County Court in accordance with the following table.

Offence Maximum Sentence Cumulation

INDICTMENT E13908119 ͒

1
Cultivation of a drug of Dependence in a Commercial Quantity
[s 72A Drugs, Poisons and
Controlled Substances Act 1981] 25 years’ imprisonment 4 months (aggregate sentence with charge 2) + 30 month CCO[1]
Base

2
Theft
[s 74(1) Crimes Act 1958] 10 years’ imprisonment 4 months (aggregate sentence with charge 1) + 30 month CCO

3
Possession of a drug of Dependence (amphetamine)
[s 73 Drugs, Poisons and Controlled Substances Act 1981]
1 year imprisonment
(and/or 30

penalty units)
Aggregate fine of $600 (with charges 4&5)

4
Possession of a drug of Dependence (ecstasy)
[s 73 Drugs, Poisons and Controlled Substances Act 1981]
1 year

imprisonment (and/or 30 penalty units)
Aggregate fine of $600 (with charges 3&5)

5

Possession of a drug of

Dependence (cannabis resin)
[s 73 Drugs, Poisons and Controlled Substances Act 1981]

1 year

imprisonment (and/or 30 penalty units)
Aggregate fine of $600 (with charges 3&4)

Related Summary Charges

6
Possess Property Suspected of
Being Proceeds of Crime
[s 195 Crimes Act 1958]
2 years’

imprisonment
1 month Concurrent

11
Possess Prohibited Weapon
[s 5AA Control of Weapons Act
1990] 2 years’ imprisonment (and/or 240 penalty units) Aggregate fine of $400 (with charge 13)

13
Possess Cartridge Ammunition
[s 124(1) Firearms Act 1996] 40 penalty units) Aggregate fine of $400 (with charge 11)

Total Effective Sentence (State…

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 Kohari v The Queen

Details

AGLC: Kohari v The Queen [2017] VSCA 33
Case: [2017] VSCA 33
Decision Date: 1 March 2017

CaseChat Overview and Summary

The case of Kohari v The Queen was heard in the court where the applicant, Kohari, appealed against his conviction and sentence. He was charged with cultivating a commercial quantity of cannabis among other charges. The central dispute was whether the applicant’s plea of guilty, which led to his conviction, was genuinely acknowledged, or if there was a miscarriage of justice by holding him to the plea. Additionally, the court examined if there was an issuable question of guilt regarding the applicant’s intention to cultivate a commercial quantity of cannabis.

The legal issues before the court involved the validity of the applicant’s plea and the adequacy of the information provided to him regarding the elements of the commercial cultivation offence. It was crucial to determine if the applicant’s plea demonstrated a 'consciousness of guilt' and if he had a genuine understanding of the offence. The court also needed to consider whether the applicant was adequately informed about the specifics of the commercial cultivation charge.

The court found that the applicant was not adequately informed of the elements of the commercial cultivation offence, and his plea of guilty did not reflect a 'consciousness of guilt'. As a result, there was a miscarriage of justice in holding him to his plea. The court quashed the conviction on the charge of cultivation of a commercial quantity of cannabis and ordered a new trial on that charge. This decision was based on the premise that the applicant’s plea did not demonstrate a genuine acknowledgement of guilt, and he was not sufficiently informed about the nature of the offence.

Orders