R v Batemberski - [2000] QCA 475

SUPREME COURT OF QUEENSLAND

CITATION: R v Batemberski [2000] QCA 475

PARTIES: R
v
BATEMBERSKI, Alexander
(applicant/appellant)

FILE NO/S: CA No 154 of 2000
SC No 685 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 24 November 2000

DELIVERED AT: Brisbane

HEARING DATE: 25 August 2000

JUDGES: Pincus JA, Chesterman and Atkinson JJ
Joint reasons for judgment of Pincus JA and Atkinson J, separate reasons of Chesterman J, dissenting in part

ORDER: Appeal against conviction dismissed. Leave to appeal against sentence granted, appeal against sentence allowed by reducing the sentence of two years imposed to a sentence of 15 months.

CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – marijuana crop found on certain land – appellant had possession of land either including or adjacent to that on which crop found – evidence that cultivation of crop connected to appellant's land – whether open to jury to find appellant had possession of crop

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – OTHER OFFENCES – whether sentence of two years imprisonment for possession within range

Drugs Misuse Act 1986 (Qld), s 57(c)

Boyle CA No 203 of 1995, 30 July 1995,considered
Clarke CA No 38 of 1995, 16 March 1995, considered
Ryan CA No 550 of 1996, 20 June 1997, considered
Smith (1987) 44 SASR 587, mentioned
William CA No 334 of 1996, 25 March 1997, considered

COUNSEL: The applicant/appellant appeared on his own behalf
D Meredith for the respondent

SOLICITORS: The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

PINCUS JA and ATKINSON J: The appellant was indicted on two counts, one of having unlawfully produced cannabis sativa and the other of having unlawfully had possession of that drug. The Crown alleged that the appellant was growing a marijuana crop; there were said to be 130 plants, including many seedlings; the defence did not accept that there were so many. After a trial, he was acquitted of the first count and convicted on the second. There is a notice of appeal against both conviction and sentence, but the only ground given is that "[i]n all the circumstances of the case, the sentence was manifestly excessive". It is clear from the appellant's submissions that the intention is to challenge the conviction, as well as the sentence.

It is said in one submission that s 57 of the Drugs Misuse Act 1986 is for various reasons invalid; it does not appear to us that that submission has any substance. Then the argument is advanced that photographs taken by the police were not a true depiction of the site in question. The appellant has argued that counsel should have insisted on a view of the site, should have called…

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 R v Batemberski

Details

AGLC: R v Batemberski [2000] QCA 475
Case: [2000] QCA 475
Decision Date: 24 November 2000

CaseChat Overview and Summary

In the case of R v Batemberski, the appellant contested his conviction and sentence in relation to drug offences involving the possession of a cannabis crop. The appeal was heard by the court, which considered the arguments against the conviction and the sentence, ultimately dismissing the appeal against the conviction but allowing an appeal against the sentence. The court found that the appellant had more than a mere suspicion that the cannabis was being cultivated on property he leased or adjacent to property he leased, establishing actual possession of the cannabis plantation. The appellant's age and criminal history were considered, and the court acknowledged his significant involvement in the cultivation of the cannabis, which was grown for profit. The sentence imposed was deemed to be within the appropriate range, but the appeal against the sentence was allowed by reducing the sentence from two years to 15 months.

The legal issues before the court included whether the presumption of possession by the occupier of the land where the marijuana crop was found was applicable, given the appellant's possession of the land either including or adjacent to that on which the crop was found. Additionally, the court examined whether the jury was justified in concluding that the appellant had possession of the cannabis crop, based on the evidence that the cultivation of the crop was connected to the appellant's land. The court also assessed whether the sentence of two years imprisonment for possession was within the appropriate range, considering the other offences and the appellant's background. Ultimately, the court found that the appellant's conviction was justified, and the appeal against the sentence was allowed by reducing the sentence imposed.

The court's reasoning was based on the evidence presented, which demonstrated that the appellant had more than a mere suspicion that the cannabis was being cultivated on property he leased or adjacent to property he leased. The court emphasised that the appellant was in actual possession of the cannabis plantation, which was grown for profit. The court considered the appellant's age and criminal history, as well as the significant involvement in the cultivation of the cannabis. The court found that the sentence of two years imprisonment was within the appropriate range, but the appeal against the sentence was allowed by reducing the sentence from two years to 15 months.

In summary, the appeal against the conviction was dismissed, and the appeal against the sentence was allowed by reducing the sentence imposed. The court found that the appellant was in actual possession of the cannabis plantation and that the sentence of two years imprisonment was within the appropriate range, but the sentence was reduced to 15 months. The appellant's age and criminal history, as well as his significant involvement in the cultivation of the cannabis, were considered in the court's decision.

Orders

Orders of the court

Appeal against conviction dismissed. Leave to appeal against sentence granted, appeal against sentence allowed by reducing the sentence of two years imposed to a sentence of 15 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion CHESTERMAN J: I agree with Pincus JA and Atkinson J that there is no substance in the appellant’s arguments against his conviction and that his appeal should therefore be dismissed. Similarly I can see no merit in his application for leave to appeal against sentence. The applicant was no callow youth. He was 38 years of age though, it must be conceded, without an appreciable criminal history. His two prior convictions for possessing cannabis should properly be disregarded. They were very old and would appear to involve small amounts of the drug for personal use. The cannabis in the applicant’s possession was a substantial quantity and formed a carefully tended plantation comprising four separate plots concealed from the passer-by. Altogether there were 130 plants, 78 of which were mature being up to one metre in height. The weight of 60 of these plants slightly exceeded 13½ kilograms. The other 52 plants were seedlings the weight of which exceeded ½ a kilogram. A person may be convicted of possessing cannabis in circumstances where the drug was in a place occupied or controlled by that person who does no more than have reason to suspect that the drug was in that place. See s 57(c) of the Drugs Misuse Act 1986. The facts which led to the applicant’s conviction make it plain, in my opinion, that the applicant did more than have reason to suspect the drugs were being cultivated on property he leased or adjacent to property he leased. The applicant was in actual possession of the cannabis plantation. It was on that basis that the trial judge sentenced him and it is, with respect, the only sensible view of the case. The applicant’s offence is a serious example of possessing cannabis. The drug was in a living form in which it would naturally increase and regenerate. The crop was grown for profit. The applicant was convicted after a trial. He was not entitled to any discount for a plea of guilty. The applicant gave evidence during the course of which he denied consuming cannabis. In submissions on penalty his counsel did not advance any contrary position. During the argument the trial judge commented: In passing sentence the learned judge, having referred to the circumstances of the offence and the applicant’s mental health (which I shall mention later) said: The schedule of penalties imposed for possessing cannabis supplied by counsel for the respondent is not particularly helpful because there is only one truly comparable case. No doubt this is because the facts proved in the applicant’s case would ordinarily result in a conviction for producing cannabis but, as Pincus JA has noted, the jury appears to have taken a charitable view of the applicant’s activities. I can see only four cases in the schedule that provide any assistance. The smallness of their number and the incomparability of circumstances means that there is no clearly delineated range of sentences for the offence constituted by possessing a cannabis plantation.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Batemberski [2000] QCA 475
PARTIES:	R v BATEMBERSKI, Alexander (applicant/appellant)
FILE NO/S:	CA No 154 of 2000 SC No 685 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	24 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2000
JUDGES:	Pincus JA, Chesterman and Atkinson JJ Joint reasons for judgment of Pincus JA and Atkinson J, separate reasons of Chesterman J, dissenting in part
ORDER:	Appeal against conviction dismissed. Leave to appeal against sentence granted, appeal against sentence allowed by reducing the sentence of two years imposed to a sentence of 15 months.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – POSSESSION – PRESUMPTION OF POSSESSION BY OCCUPIER – marijuana crop found on certain land – appellant had possession of land either including or adjacent to that on which crop found – evidence that cultivation of crop connected to appellant's land – whether open to jury to find appellant had possession of crop CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – OTHER OFFENCES – whether sentence of two years imprisonment for possession within range Drugs Misuse Act 1986 (Qld), s 57(c) Boyle CA No 203 of 1995, 30 July 1995,considered Clarke CA No 38 of 1995, 16 March 1995, considered Ryan CA No 550 of 1996, 20 June 1997, considered Smith (1987) 44 SASR 587, mentioned William CA No 334 of 1996, 25 March 1997, considered
COUNSEL:	The applicant/appellant appeared on his own behalf D Meredith for the respondent
SOLICITORS:	The applicant/appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent