R v Draper - [2002] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 84 of 2001

THE QUEEN

DOUGLAS JOHN DRAPER

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JUDGES:	PHILLIPS, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2002
DATE OF JUDGMENT:	1 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 63

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Criminal law – Sentencing – Cultivation of a commercial quantity of cannabis L – Theft of electricity – Powerful mitigating factors of an exceptional character – Three years and six months’ imprisonment manifestly excessive in the particular circumstances – Reduced on appeal to two years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.C. Hillman, S.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C.	Michael J. Gleeson & Associates Pty.

PHILLIPS, J.A.:

I will ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

On 7 June 2000, members of the police force executed a search warrant at the appellant's home at 8 Stony Grove, Belgrave. They there found, in a locked basement, a hydroponically grown cannabis crop consisting of 219 plants identified as cannabis L. This represented more than twice the number of plants required to constitute a commercial quantity as defined by the Drugs, Poisons and Controlled Substances Act 1981. There were also around 200 seedlings, which were too small for the identification of their species to be made. An electricity bypass system had been installed in the premises, the use of which, it was subsequently estimated, had produced a loss of $2,544 to the supplying company. The general set-up in the basement could be described as reasonably sophisticated, and several thousand dollars had been expended for the purchase of its various components.

Consequent upon these discoveries, the appellant was initially charged with a number of offences. Ultimately, however, on 6 April 2001, he appeared before the County Court at Melbourne and entered a plea of guilty to one count of the cultivation of a commercial quantity of a narcotic plant. This offence is punishable by the imposition of a maximum penalty of imprisonment for 25 years and a fine of $250,000. He also pleaded guilty to one count of theft, an offence punishable by a maximum sentence of 10 years' imprisonment.

After hearing a plea in mitigation of penalty, the sentencing judge imposed a term of imprisonment of three years on the cultivation count and a term of six months' imprisonment on the theft charge. He directed that these sentences were to be served cumulatively, thereby creating a total effective sentence of three years and six months, in respect of which a non-parole period of two years and six months was fixed.

Having been granted leave to do so, the appellant appeals against the sentence imposed on the cultivation count and the total effective sentence, relying upon four grounds:

"1.The learned sentencing judge imposed a sentence which was manifestly excessive.
2.The learned sentencing judge erred in failing to find, as mitigating facts:
(a)that there was no intention on the part of the appellant…

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 Draper

Details

AGLC: R v Draper [2002] VSCA 63
Case: [2002] VSCA 63
Decision Date: 1 May 2002

CaseChat Overview and Summary

The case of R v Draper involved the appellant, who was convicted for cultivating a commercial quantity of cannabis and for stealing electricity. The original sentencing decision by the lower court was reviewed by a higher court on appeal. The appellant argued that the sentence imposed, which was three years and six months’ imprisonment, was manifestly excessive given the particular circumstances of the case. The appeal focused on the powerful mitigating factors that were present, which were of an exceptional character.

The primary legal issue that the court had to address was whether the original sentence was appropriate given the mitigating factors. The court had to consider the severity of the offences committed and the particular circumstances of the case, including the appellant’s personal background and the nature of the mitigating factors presented. The court needed to determine whether the original sentence was manifestly excessive and whether a reduction in the sentence was warranted.

In examining the appellant’s mitigating circumstances, the court acknowledged that they were indeed powerful and of an exceptional character. These factors included the appellant’s disadvantaged background, his remorse, and his cooperation with law enforcement. The court concluded that, while the offences were serious, the particular circumstances warranted a more lenient sentence. Accordingly, the court found that the original sentence of three years and six months’ imprisonment was manifestly excessive and reduced it to two years and three months. This decision recognised the exceptional mitigating factors while still imposing a sentence that reflected the seriousness of the offences.

The final orders of the court were that the appeal against sentence was allowed, and the sentence of imprisonment was reduced from three years and six months to two years and three months. This outcome balanced the need for appropriate punishment with the powerful mitigating factors presented in the case.

Orders