CRIMINAL LAW – Application for leave to appeal against sentence – One charge of cultivation of a narcotic plant (cannabis L) – 221 plants found at applicant’s residence – Applicant maintained plants were for personal use to self-medicate for mental health issues – Sentenced to 8 months’ imprisonment with a CCO of 18 months – Repeat offender – Whether sentence manifestly excessive – Whether specific errors which materially affected sentence – Leave to appeal refused.
Michael Pulis, the applicant, has applied for leave to appeal against a sentence imposed in the County Court by his Honour Judge Moglia on 5 August 2024 in relation to the cultivation of 221 cannabis plants at his home in Hillside, in breach of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).[1]
The applicant was sentenced to 8 months’ imprisonment with a Community Corrections Order (‘CCO’) of 18 months’ duration to take effect after the prison sentence was served.
The applicant contends, amongst other things, in his proposed grounds of appeal, that the sentence was manifestly excessive and that the judge made a number of specific errors which materially affect the sentence imposed.
We determined at the conclusion of the hearing of the application that there was no substance to the applicant’s arguments and refused leave to appeal. Our reasons for doing so now follow.
The charges and the sentence
On 16 July 2024, the applicant pleaded guilty to two discrete charges. The first, the subject of this application for leave to appeal, was that of cultivation of a narcotic plant (cannabis L) contrary to s 72B of the Act.[2] On 5 August 2024, he was sentenced to 8 months’ imprisonment. An 18-month CCO was also imposed, to be served at the end of the custodial sentence.[3]
[2]In the alternative, the applicant had initially been charged with cultivation of a narcotic plant in a quantity not less than a commercial quantity — which for cannabis L is defined in sch 11, pt 2 of the Drugs Poisons and Controlled Substances Act 1981 as 25kgs or 100 plants.
[3]This was a ‘treatment only’ CCO.
The maximum penalty for the offence is 15 years’ imprisonment.
The second charge (which is not the subject of this application) was a summary offence, of possessing a Schedule 4 poison (sildenafil citrate, a drug for treating erectile dysfunction) — of which…
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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AGLC
Pulis v The King [2025] VSCA 2
Case
[2025] VSCA 2
Decision Date
CaseChat Overview and Summary
In the matter of Pulis versus The King, the applicant sought leave to appeal against a sentence imposed for the cultivation of a narcotic plant, cannabis L. The applicant, a repeat offender, was found to have 221 plants at their residence and maintained that these plants were for personal use to self-medicate for mental health issues. The court sentenced the applicant to eight months' imprisonment with a Community Corrections Order of 18 months. The applicant argued that the sentence was manifestly excessive and that specific errors had materially affected the sentence. The central issue for the court was to determine whether the sentence was manifestly excessive or if there were specific errors that materially impacted the sentence.
The court examined the principles governing the grant of leave to appeal against sentence, considering the criteria set out in previous case law. It was established that leave would only be granted if the sentence was manifestly excessive or if there were specific errors which materially affected the sentence. The court weighed the evidence and arguments presented, including the applicant's personal circumstances and the nature of the offence. In its analysis, the court considered the seriousness of the offence, the applicant's criminal history, and the potential impact of the sentence on the applicant's mental health.
The court concluded that the sentence was not manifestly excessive, and there were no specific errors that materially affected the sentence. The court recognised the applicant's mental health issues but found that these did not justify a significantly reduced sentence. The court also noted that the applicant had a history of similar offences, which warranted a more severe sentence to deter future criminal behaviour. Accordingly, the court refused the applicant's application for leave to appeal against the sentence.
No orders were made as the application for leave to appeal against sentence was refused.