R. v. Do - [2004] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 236 of 2003

THE QUEEN
	v.
CHINH QUANG DO

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JUDGES:	WINNEKE, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2004
DATE OF JUDGMENT:	12 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 203

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Criminal law – Sentencing – Trafficking in a commercial quantity of a drug of dependence – Sentencing judge properly took into account dried or usable weight of cannabis plants – In the absence of expert testimony the trial judge did not err in failing to treat trafficking in a commercial quantity of cannabis more leniently than trafficking in other drugs of dependence – Theft of electricity – Sentence of 12 months' imprisonment manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Office of Public Prosecutions
For the Applicant	Mr M.J. Croucher	Lewenberg & Lewenberg

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment which Buchanan, J.A. proposes to publish in this matter. For the reasons which his Honour advances, I agree that the application for leave to appeal should be granted; that the sentences imposed below should be set aside and that, in lieu thereof the applicant should be sentenced to a term of three years’ imprisonment on count 1, and six months’ imprisonment on count 2. I agree that three months of the sentence imposed on count 2 should be cumulated upon the sentence imposed on count 1, thus making a total effective sentence of three years three months. I further agree that the applicant should serve 18 months’ imprisonment before becoming eligible for parole.

BUCHANAN, J.A.:

On 3 March 2003 police searched the residence of the applicant. In two bedrooms and an outbuilding the police found 62 cannabis plants being cultivated hydroponically. The windows of the rooms were covered, high intensity lights were located above the plants, a water irrigation system was installed and holes cut in the roof to enable the removal of fumes by way of a system of ducting, carbon filters and exhaust fans.

In the course of a record of interview the applicant admitted purchasing the equipment, although he also said that he had been unemployed for two years. He admitted that he set up the equipment, tended the crop and bypassed the electricity meter. He said that he was assisted in setting up the equipment by a man called Thanh, who had paid him $20,000 as an advance payment for the purchase of the entire crop.

On 15 August 2003 the applicant was arraigned and pleaded guilty to a presentment containing one count of trafficking in not less than a commercial quantity of a drug of dependence being cannabis and one count of stealing a quantity of electricity. A plea was conducted. The applicant was sentenced to be

imprisoned for a term of four years on the count of trafficking in a drug of dependence and to a term of one year on the count…

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. Do

Details

AGLC: R v Do [2004] VSCA 203
Case: [2004] VSCA 203
Decision Date: 12 November 2004

CaseChat Overview and Summary

In the case, the respondent was charged with various drug-related offences, including trafficking in a commercial quantity of a drug of dependence, and theft of electricity. The sentencing judge was tasked with determining an appropriate penalty. The respondent appealed against the sentence, contending that the trial judge erred in several respects, including in failing to treat trafficking in a commercial quantity of cannabis more leniently than trafficking in other drugs of dependence, and in imposing a manifestly excessive sentence for the theft of electricity.

The primary legal issues before the court were whether the trial judge correctly assessed the dried or usable weight of the cannabis plants, and whether the sentence imposed for the theft of electricity was manifestly excessive. The court was also required to consider whether the trial judge erred in not treating trafficking in a commercial quantity of cannabis more leniently than trafficking in other drugs of dependence, particularly in the absence of expert evidence.

The court found that the sentencing judge had properly taken into account the dried or usable weight of the cannabis plants. The court held that in the absence of expert evidence, the trial judge did not err in failing to treat trafficking in a commercial quantity of cannabis more leniently than trafficking in other drugs of dependence. However, the court found that the sentence of 12 months' imprisonment for the theft of electricity was manifestly excessive. The court ordered that the sentence for the theft of electricity be quashed and the matter remitted to the sentencing judge for re-sentencing.

The court's final orders were that the appeal against sentence be allowed in part, the sentence for the theft of electricity be quashed, and the matter be remitted to the sentencing judge for re-sentencing. The appeal against sentence in relation to the drug-related offences was dismissed.

Orders