R v Garcia - [2007] VSCA 194

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 16 of 2007

THE QUEEN
	v
JOHN GARCIA

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JUDGES:	NETTLE and ASHLEY JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2007
DATE OF JUDGMENT:	6 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 194

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CRIMINAL LAW – Sentencing – Appellant charged on presentment with cultivation of a narcotic plant in a commercial quantity (1 count) and theft of electricity (1 count) – Charged on second presentment with offences committed while on bail in respect of offences charged on the first presentment – Terms of imprisonment imposed in respect of offences charged on both presentments – Total cumulation directed of effective sentence imposed on second presentment upon effective sentence imposed on first presentment – Total cumulation held not to offend principle of totality – Sentencing Act 1991 s 16(1), 16(1A)(e), 16(3C).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Valos Black & Associates

NETTLE JA:

I ask Kaye AJA to deliver the first judgment.

KAYE AJA:

The appellant was charged on two presentments. On the first presentment he pleaded guilty to one count of cultivating a narcotic plant, Cannabis L, in a commercial quantity between 1 October 2004 and 2 June 2005, and to one count of theft of electricity between the same dates. On the second presentment the appellant pleaded guilty to one count of burglary and to one count of theft committed by him on 9 June 2006.

After a plea was presented on his behalf, he was sentenced, on the first presentment, to a total effective sentence of two years and three months' imprisonment, and, on the second presentment, to a further term of imprisonment of 12 months. The judge directed that the sentence of imprisonment on the second presentment be served cumulatively on the sentence imposed on the first presentment, making a total effective sentence of three years and three months' imprisonment. Her Honour fixed a minimum non-parole period of two years and three months. A declaration was made as to 438 days pre sentence detention.

In this appeal, which is brought by leave, the appellant relies on one ground, namely, that the sentencing judge erred by cumulating the whole of the 12 month of the total effective sentence imposed on the second presentment upon the effective sentence imposed on the first presentment.

The offence of cultivating a narcotic plant was committed by the appellant at premises at Clayton. On about 1 October 2004, the appellant took possession of those premises and fitted them out for the purposes of growing and cultivating cannabis. When the police searched the premises on 2 June 2005, they found that five rooms of the house had been used to establish a sophisticated and expensive electrically powered hydroponic installation, using powerful lights, exhaust systems and fans to promote the growth of cannabis plants. They found that the doors of each room had…

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 Garcia

Details

AGLC: R v Garcia [2007] VSCA 194
Case: [2007] VSCA 194
Decision Date: 6 September 2007

CaseChat Overview and Summary

In the matter of R v Garcia, the appellant faced charges on two separate presentments. The first presentment included a charge of cultivating a narcotic plant in a commercial quantity and another for theft of electricity. The second presentment involved offences committed while the appellant was on bail for the charges arising from the first presentment. The appellant was subsequently sentenced to imprisonment terms for the offences on both presentments. The court was tasked with determining whether the total cumulation of the sentences imposed on the second presentment with those on the first presentment complied with the principle of totality as outlined in the Sentencing Act 1991.

The central legal issue before the court was whether the total cumulation of the sentences imposed on the second presentment with those on the first presentment contravened the principle of totality. The appellant argued that the total cumulation of sentences breached this principle, but the prosecution contended that the sentences were imposed lawfully. The court had to examine the relevant provisions of the Sentencing Act 1991, particularly sections 16(1), 16(1A)(e), and 16(3C), to determine the appropriateness of the cumulation of sentences.

The court held that the total cumulation of the sentences imposed on the second presentment with those on the first presentment did not offend the principle of totality. It found that the sentences were imposed in accordance with the provisions of the Sentencing Act 1991. The court reasoned that the principle of totality was not violated because the sentences were calculated and imposed in a manner consistent with the statutory framework. The principle of totality, which ensures that the total punishment for all offences does not exceed what is proportionate to the aggregate gravity of the offences, was not breached in this case.

No additional orders were made by the court beyond affirming the total cumulation of sentences as lawful. The decision reinforces the court's adherence to the statutory guidelines in sentencing, ensuring that the principle of totality is applied correctly in cases involving multiple presentments and charges.

Orders