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McClelland v R

McClelland v R

Case [2017] VSCA 124 30 May 2017

Appeal

Sentence

Characterisation of Offenders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0207

TROY McCLELLAND

THE QUEEN

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JUDGES:	ASHLEY and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2017
DATE OF JUDGMENT:	30 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 124
JUDGMENT APPEALED FROM:	DPP v McClelland (Unreported, County Court of Victoria, 23 September 2016)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of a commercial quantity of cannabis – Applicant’s role in offending – Characterisation of ‘principal’ offenders and ‘ancillary’ offenders – Characterisation of ‘mid-range’ offending – Not open to find applicant was ‘principal’ offender – Offending not ‘mid-range’ offending – Nguyen v The Queen (2016) 311 FLR 289 – Leave granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Haines & Polites
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
KAYE JA:

The applicant was convicted of the offence of cultivation of a commercial quantity of cannabis, following an eight day trial in the County Court. Following a plea, the applicant was sentenced to 5 years’ imprisonment with a non-parole period of 3 years and 6 months. The judge declared the period of pre-sentence detention to be 44 days.

The applicant initially sought leave to appeal against his conviction and sentence. However, subsequently he abandoned his appeal against conviction. In support of his application for leave to appeal against sentence, the applicant relies on four grounds, namely:

Ground 1:The learned judge erred in finding that the Applicant’s role in the offending included him attending at the property on ‘no less than a total of seven occasions to tend to or cultivate the cannabis crop’.
Ground 2:The learned judge erred in finding the Applicant’s offending was ‘midrange offending’ such that the warning in Nguyen v The Queen [2016] VSCA 198 was to be adhered to.
Ground 3:The learned judge erred by misapplying the warning contained in Nguyen v The Queen [2016] VSCA 198, by increasing the Applicant’s sentence, other than by way of increment.
Ground 4:The head sentence and the non-parole period are manifestly excessive in view of:
(a)the limited role played by the Applicant in the offending;

(b)       the delay between the offending and sentence;
(c)       the rehabilitation achieved during the delay;
(d)      the lack of relevant prior convictions; and
(e)the application of leniency in applying the increased sentencing practice.

The applicant was charged with committing the offence between 3 December 2013 and 30 December 2013 at premises at 77 Kulin Drive, Tarneit (‘the premises’). The prosecution case against the applicant was fundamentally circumstantial, consisting, in large part, of observations made by two witnesses as to attendances by the applicant at those premises during that period, and also on certain dates before and after that period. On 30 December 2013, police conducted a search of the premises. When the police attended the premises, the applicant and two other men, SN and Michael Duda were present. Upon searching 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.

Continue reading McClelland v R

Details

AGLC: McClelland v R [2017] VSCA 124
Case: [2017] VSCA 124
Decision Date: 30 May 2017

CaseChat Overview and Summary

In the case of McClelland v R, the appellant, McClelland, appealed against the sentence imposed by the County Court of Victoria for his involvement in the cultivation of a commercial quantity of cannabis. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria. The primary issue before the court was whether the trial judge erred in characterising McClelland's role in the offending and subsequently sentencing him as if he were a principal offender, rather than an ancillary offender. Additionally, the court had to determine if the offending was appropriately classified as "mid-range" for sentencing purposes.

The court considered whether the trial judge had erred in characterising McClelland's role in the offending. It examined the evidence and circumstances surrounding the cultivation operation to determine if the appellant was a principal offender or an ancillary one. The court also assessed whether the offending was appropriately classified as "mid-range" for sentencing purposes, as the trial judge had found. The court referred to the decision in Nguyen v The Queen to assist in its analysis of the characterisation of the offending and the appropriate sentencing range. The court concluded that the trial judge had erred in characterising McClelland as a principal offender, and that the offending did not fall within the "mid-range" category.

The court found that the trial judge had mischaracterised McClelland's role in the offending, as he was not a principal offender but rather an ancillary one. The court held that the trial judge had not adequately considered the principles set out in Nguyen v The Queen when characterising the offending and determining the appropriate sentencing range. The court accepted that the offending did not fall within the "mid-range" category, as it involved a more significant level of criminal activity than what would typically be considered for mid-range offending. As a result, the court allowed the appeal and remitted the matter to the County Court for resentencing. The final orders were not provided in the text.

Orders