R v Garlick (No 2) - [2007] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 349 of 2006
	v
DARRYN GARLICK (NO 2)

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JUDGES:	BUCHANAN and EAMES JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2007
DATE OF JUDGMENT:	28 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 23

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CRIMINAL LAW – Drug offences – Cultivation of not less than a commercial quantity of cannabis L – Directions – Intention to cultivate a commercial quantity of not less than 25 kilogram weight – Six plants weighed at 26.35 kg – Applicant denies intention to cultivate commercial quantity – Whether direction on wilful blindness appropriate – No basis on evidence for wilful blindness direction – Leave to appeal granted – Conviction quashed – Whether order for re-trial or verdict of acquittal appropriate – Re-trial not ordered – Verdict of guilty of cultivation simpliciter substituted pursuant to s 569(2) of Crimes Act 1958 – Appellant re-sentenced – Drugs, Poisons and Controlled Substances Act 1981 ss 72A and 72B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Nickolls Windisch & Associates

BUCHANAN JA:

I agree with Eames JA, for the reasons stated by his Honour, that the application for leave to appeal should be granted and the appeal allowed. The conviction passed below on the count of cultivation of a narcotic plant in not less than a commercial quantity is to be set aside and, pursuant to s 569(2) of the Crimes Act 1958, the appellant is to be convicted of the offence of cultivation of a narcotic plant, contrary to the provisions of s 72B of the Drugs, Poisons and Controlled SubstancesAct 1981. I also agree that the appellant should be re-sentenced as his Honour proposes.

EAMES JA:

On 18 October 2006 the applicant was convicted, by verdicts of a jury, on one count of cultivation of a narcotic plant (cannabis L) in a commercial quantity, contrary to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 and one count of theft, being the theft of electricity, contrary to s 74 of the Crimes Act 1958. He was sentenced to 15 months’ imprisonment on count 1 and six months’ imprisonment on count 2, three months of which was to be served cumulatively with the sentence on count 1, producing a total effective sentence of 18 months’ imprisonment. Fifteen months of the sentence of imprisonment was suspended for an operational period of three years.

The applicant applies for leave to appeal against conviction and sentence.

The trial, which took only three days, was contested on a single issue, namely, whether the applicant had the requisite intention to cultivate a commercial quantity of cannabis.

On 27 August 2003 police executed a search warrant at the applicant’s home, whereupon he showed them a shed in the backyard in which there was a hydroponic cultivation set-up, with 18 small cannabis seedlings, in relatively poor health,…

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 Garlick (No 2)

Details

AGLC: R v Garlick (No 2) [2007] VSCA 23
Case: [2007] VSCA 23
Decision Date: 28 February 2007

CaseChat Overview and Summary

The appellant was convicted of cultivating a commercial quantity of cannabis and appealed against the conviction on the basis that the trial judge erred in giving a direction on wilful blindness. The Court of Appeal was required to determine whether the trial judge erred in directing the jury on wilful blindness and, if so, whether the appropriate remedy was to order a re-trial or to substitute a verdict of guilty of cultivation simpliciter. The Court of Appeal held that the trial judge erred in giving a direction on wilful blindness as there was no basis on the evidence for such a direction. The Court of Appeal held that, as the error was not trivial, the appropriate remedy was to substitute a verdict of guilty of cultivation simpliciter pursuant to s 569(2) of the Crimes Act 1958. The appellant was re-sentenced under the Drugs, Poisons and Controlled Substances Act 1981 ss 72A and 72B. The Court of Appeal quashed the conviction and substituted a verdict of guilty of cultivation simpliciter, and remitted the matter to the County Court for re-sentencing.

Orders