R v Benov (aka Christian)

[1999] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 116 of 1998

THE QUEEN

v

GEORGE BENOV

(NOW KNOWN AS JOHNNIE CHRISTIAN)

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JUDGES:	BROOKING, TADGELL and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 1999
DATE OF JUDGMENT:	7 April 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 42

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CRIMINAL LAW - Sentence - Trafficking in cannabis - 30 months for hydroponic cultivation upheld.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	P.C. Wood,
and Mr B. Kayser	Solicitor for Public Prosecutions
For the Applicant	In person

BROOKING, J.A. (delivering the judgment of the Court):

1. Mr Benov - or perhaps I should say Mr Christian - you have sentences of 30 months and three months for trafficking in cannabis and methylamphetamine which were passed on 1 May 1998 in the County Court. You received a total effective sentence of 30 months with a non-parole period of 15 months.

2. Your complaint is not with the sentence with regard to the amphetamine but with the sentence with regard to cannabis. What you have to do if you are to succeed in your application today is to show us either that the judge made some significant mistake or that, while we cannot put our finger on some particular mistake, the sentence is so much larger than we ourselves would have passed as to show that something must have gone wrong.

3. Now you have given us a carefully prepared written argument with supporting documents which, as I said to you before, we all read before we came into court. You have made a number of points. I am not going to mention them all, but they include several findings which the judge made in your favour: the finding that the cannabis offence was not at or near the top of the scale, the finding he made about remorse, the finding that another man, not you, was the organiser. You have relied, of course, as you are well entitled to, on your early plea of guilty, on the fact that there was no evidence of any sale and the finding that this was a single crop. You have referred to the quantity of useable cannabis, about eight kilos, which you say is small. You have taken us to sentencing statistics and we have discussed those with you briefly, and you have taken us to some decisions on appeal in other cases. You have mentioned your financial position, your serious financial problems which led to this, as no doubt they did, and to your family situation, and you say of your previous convictions, that while they are there, none of them are really serious. Those are most of the points but by no means all of the points which you have made.

4. You say that in all the circumstances the sentence for the cannabis offence was

   just too long.

5. Now we have given consideration to what you have written and what you have said, but we find ourselves unable to say that the sentence passed here fell outside the range of sentences available to the judge, and accordingly your application for leave to appeal must be, and is, dismissed.

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