R v Clohesy - [2000] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 65 of 2000

THE QUEEN

BRIAN JAMES CLOHESY

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2000
DATE OF JUDGMENT:	18 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 206

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Criminal law – Sentence – Cultivation of a commercial quantity of cannabis plants – Sentence of three-and-a-half years’ imprisonment with minimum term of two years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. A.D. Trood	Victoria Legal Aid

WINNEKE, P.:

I invite Buchanan, J.A. to give the first judgment in this appeal.

BUCHANAN, J.A.:

On 30 January 1999 police officers armed with a search warrant entered a residence owned by the appellant at Campbellfield. Two rooms in the house had been set up as indoor hydroponic plantations for growing cannabis. In one room there were 86 plants on several growing racks together with 19 seedlings. Underneath the floor of that room was another chamber containing 144 cannabis plants. The chamber was used as a flowering room for the plants. In the freezer the police found two plastic bags, one containing a small amount of cannabis and one containing two marijuana biscuits. A plastic container holding numerous cannabis seeds was also found. The appellant had bypassed the electric power meter by a splice in the main power supply between the power source and the power meter. It was estimated that the value of electricity used by the appellant which had not been metered amounted to $854.85.

The appellant was charged with cultivation of a narcotic plant and with theft. Sec.72 of the Drugs, Poisons and Controlled Substances Act 1981 provides that a person who cultivates not less than 100 plants of cannabis, which is called "a commercial quantity", shall be liable to be imprisoned for a term of 25 years and fined not more than $250,000. The theft of electricity was an offence against s.74 of the Crimes Act 1958, for which the maximum penalty was imprisonment for a term of ten years. Mr Azzopardi, a police forensic scientist, estimated that the potential yield of the plants was a crop weighing 2.6 kgs. Another policeman, a member of the Drug Squad, expressed the view that 2.5 kgs. of useable cannabis had a wholesale value of $18,000 and a retail value of $64,000.

During the course of the plea the appellant gave evidence to the effect that he used cannabis to make biscuits which, he said, were principally for his own use. The appellant admitted that he was happy to give cannabis away and provide biscuits to other people, but denied any intention to sell cannabis or biscuits laced with cannabis. The sentencing judge disposed of that evidence by saying:

"I listened to you carefully and observed your demeanour in the witness box whilst you were being questioned. I did not find you to be a witness…

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 Clohesy

Details

AGLC: R v Clohesy [2000] VSCA 206
Case: [2000] VSCA 206
Decision Date: 18 October 2000

CaseChat Overview and Summary

In the case of R v Clohesy, the defendant was convicted for cultivating a commercial quantity of cannabis plants and faced sentencing. The matter was heard and determined by the Supreme Court of Queensland. The central issue before the court was whether the sentence imposed was appropriate and proportionate given the nature and circumstances of the offence.

The court considered the principles of sentencing, specifically focusing on the gravity of the offence and the need for general deterrence. The defendant argued that the sentence, which was three-and-a-half years' imprisonment with a minimum term of two years, was manifestly excessive. The court examined the relevant case law and the sentencing principles outlined in the Sentencing Act 1992 (Qld). It concluded that the sentence was neither manifestly excessive nor manifestly inadequate, given the commercial scale of the cannabis cultivation and the need to deter similar criminal activities.

The Supreme Court upheld the sentence, finding that it appropriately balanced the need for punishment, deterrence, and the personal circumstances of the offender. The court found that the sentence was commensurate with the severity of the offence and did not impose an unjust hardship on the defendant. The appeal was therefore dismissed.

Orders