R v Hartog - [2000] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.212 of 1999

THE QUEEN

PHILIP BRUCE HARTOG

---

JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 July 2000
DATE OF JUDGMENT:	18 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 133

---

Criminal law - Sentence - Cultivating a commercial quantity of cannabis - Whether the likelihood of the commission of further crimes was taken into account - Whether cultivation of cannabis is to be equated with dealing in heroin - Sentence manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Miss L. Lieder, Q.C.	Lewenberg & Lewenberg

PHILLIPS, J.A.:

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

BUCHANAN, J.A.:

The appellant pleaded guilty in the County Court to one count of cultivating a commercial quantity of cannabis contrary to the provisions of s.72(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 and to one count of theft contrary to s.74 of the Crimes Act 1958. On 13 September 1999 the appellant was sentenced to seven years' imprisonment on the charge of cultivation and to six months' imprisonment on the charge of theft. The terms were to be served concurrently. A non-parole period of four years and three months was fixed.

The offences were discovered on 21 April 1999 when police executed a search warrant upon residential premises in Boronia owned by the appellant's wife. The premises were split level, with the front door giving access to the upper section of the house. This area was equipped as a residence. Upon conducting a search investigators found a concealed manhole cut into the floor of a bedroom cupboard. The hole gave access via a ladder to the lower section of the house, a substantial area divided into four rooms. The four concealed rooms were stocked fully with cannabis plants at various stages of maturity, growing in plastic buckets, with the assistance of a substantial and sophisticated lighting and ventilation system. The lower section of the premises contained 400 marijuana plants in two stages of growth: 221 seedlings and 179 mature plants. Hanging from the ceilings in each chamber were high wattage "grow lights", shielded by wide diameter "grow shades". These lights were connected to timers and the temperature in the rooms was monitored by sophisticated electronic equipment. A complicated exhaust system was also installed. Its tubing drew fumes from the various growing locations. The tubing passed through the floor, behind a false back in the cupboard in the upper level bedroom, and led into the roof cavity, where a charcoal filter had been installed. The watering of the crop was provided for by the installation of a tank and pump. Various supplies were found in purpose-built shelving and lockable cupboards. Further investigation by officers of the electricity provider revealed that the concealed installations were powered by an illegal mains conductor which by-passed the installed meter. The agreed value of the power…

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 Hartog

Details

AGLC: R v Hartog [2000] VSCA 133
Case: [2000] VSCA 133
Decision Date: 18 July 2000

CaseChat Overview and Summary

The case before the court involved a criminal charge against the respondent, Hartog, who was found to have cultivated a commercial quantity of cannabis. The primary issue was whether the sentencing court had adequately considered the likelihood of the respondent committing further crimes in determining the sentence. Additionally, the court had to consider whether the cultivation of cannabis should be equated with dealing in heroin for sentencing purposes and whether the sentence imposed was manifestly excessive.

The court examined the sentencing principles and whether the primary judge had appropriately weighed the factors relevant to the offender's culpability and the circumstances of the offence. The court found that the sentencing judge had failed to adequately consider the likelihood of the respondent committing further crimes, which is a critical factor under sentencing guidelines. Furthermore, the court held that cultivating cannabis should not be equated with dealing in heroin, as the two activities have different levels of harm and culpability. The court concluded that the sentence imposed was manifestly excessive given the circumstances and the errors in the primary judgment.

The court ordered a new sentencing hearing to be conducted, taking into account the appropriate factors, including the likelihood of the respondent committing further crimes and the correct comparison of the activities of cultivating cannabis and dealing in heroin. The court emphasised the importance of adhering to sentencing principles to ensure just and proportionate outcomes in criminal cases.

Orders