R v Burgess - [2004] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 105 of 2004

THE QUEEN
	v.
DAVID BURGESS

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JUDGES:	WINNEKE, P., CHARLES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2004
DATE OF JUDGMENT:	14 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 187

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CRIMINAL LAW – Sentencing – Cultivating a narcotic plant (Cannabis L) in a commercial quantity – Whether cultivated for purpose of trafficking – Evidence of 221 cannabis plants and dry weight of 32 kilograms of cannabis – Accused giving evidence of growing cannabis for hemp seed to feed racing pigeons – Accused’s account rejected by judge – Whether judge entitled to find purpose of trafficking beyond reasonable doubt – Crimes Act 1958 No. 6231 s.464H.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C. Mr R. Melasecca	Rob Melasecca

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons of Charles, J.A. For the reasons which he gives, I agree that the appeal should be dismissed.

CHARLES, J.A.:

On 15 April 2004 the applicant pleaded guilty in the County Court at Melbourne to a presentment alleging that he cultivated a narcotic plant, cannabis L, in a quantity not less than a commercial quantity at Devon Meadows on 3 March 2003. Two co-offenders, Glenda Joy Balcke and Trevor Richard Balcke pleaded guilty to cultivating cannabis L on the same day and at the same place. The appellant’s offence was alleged under s.72A of the Drugs, Poisons and Controlled Substances Act 1981, for which the maximum penalty was 25 years’ imprisonment, and the co-accused were charged under s.72B of the same Act, the maximum penalty under that section being 15 years’ imprisonment.

After a lengthy plea, during which the appellant gave evidence and was cross-examined, the judge sentenced him to three years’ imprisonment and ordered that two years of the sentence be suspended for two years. The two co-accused were each sentenced to a term of three months’ imprisonment and her Honour ordered that each sentence be suspended for a period of 12 months. The appellant was granted leave to appeal under s.582 of the Crimes Act 1958 on 1 July 2004.

The appellant now relies on the grounds that –

1.The judge did not apply the correct standard of proof to circumstances aggravating the offence, namely beyond reasonable doubt;
2.Although the judge articulated that she had found that the cannabis was grown for profit beyond reasonable doubt, her analysis of the individual facts did not address each of the circumstances by a similar standard;

3.The judge took inappropriately into account as an aggravating feature the potential value of the crop if it were to be sold. Such aggravating feature was not satisfied to be within the knowledge of the appellant beyond reasonable doubt;
4.The judge took into account as aggravating facts which were inadmissible at law;
5.The judge made findings of fact that were not available…

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 Burgess

Details

AGLC: R v Burgess [2004] VSCA 187
Case: [2004] VSCA 187
Decision Date: 14 October 2004

CaseChat Overview and Summary

In the case of R v Burgess, the appellant was convicted of cultivating a commercial quantity of a narcotic plant, specifically Cannabis L, under the Crimes Act 1958. The central dispute was whether the accused cultivated the cannabis plants for the purpose of trafficking. The evidence presented at trial included the discovery of 221 cannabis plants with a dry weight of 32 kilograms. The appellant testified that the cannabis was grown for hemp seed to feed racing pigeons. The court had to determine whether the judge was correct in rejecting the appellant's account and concluding that the purpose of the cultivation was trafficking.

The legal issue before the court was whether the judge was entitled to find, beyond reasonable doubt, that the appellant cultivated the cannabis plants for trafficking purposes. This required an examination of the evidence and the credibility of the appellant's testimony. The court needed to consider whether the quantity and nature of the plants, along with the appellant's explanation, supported a conclusion of trafficking. The appellant argued that the cultivation was for legitimate purposes, while the prosecution maintained it was for trafficking.

The court examined the evidence and concluded that the judge was entitled to reject the appellant's account. The quantity and quality of the cannabis plants, along with the absence of any corroborative evidence supporting the appellant's claim, led the court to uphold the judge's finding. The court held that the evidence was sufficient to establish the purpose of trafficking beyond reasonable doubt. Consequently, the conviction was upheld, and the appeal was dismissed.

No further orders were made by the court, and the conviction and sentence for cultivating a narcotic plant in a commercial quantity remained in place.

Orders