R v Kingston - [2002] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 103 of 2001

THE QUEEN
	v.
LEONARD KINGSTON

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JUDGES:	CALLAWAY, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2002
DATE OF JUDGMENT:	11 April 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 41

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CRIMINAL LAW – Sentencing – Cultivation of cannabis in a commercial quantity – Whether judge sentenced for trafficking in a commercial quantity – Some 167 immature plants grown hydroponically for profit – Lower level commercial cultivation – Rehabilitation – Re-sentenced to three years’ imprisonment with 21-month non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P. Morrissey	Clarebrough Pica

CALLAWAY, J.A.:

I agree with Batt, J.A.

BATT, J.A.,

The appellant Leonard Kingston (formerly Leonard Davis), who was born on 6 April 1960, pleaded guilty on arraignment in the County Court at Bendigo on 23 April 2001 to one count of cultivating between 1 September and 27 October 2000 a narcotic plant, namely cannabis L, in a quantity not less than the commercial quantity applicable to that plant, which was 100 plants. By virtue of s.72(1)(ab) of the Drugs, Poisons and Controlled Substances Act 1981 as in force during the time of offending (“the Drugs Act”) the maximum penalty applicable to that offence was imprisonment for 25 years and, in addition, a fine of $250,000. The appellant admitted four previous convictions from one court appearance in 1996, none of which was for a drug offence or resulted in a term of imprisonment. A co-offender, Karen Malone, the appellant’s former wife, pleaded guilty to the same offence and also to handling stolen goods, including a generator used in the cultivation, and admitted three prior convictions for theft. His Honour heard pleas in mitigation of penalty on behalf of the appellant and Malone that day.

On 26 April 2001 in Melbourne his Honour sentenced the appellant to be imprisoned for a term of three years and directed that he serve a minimum of two years before becoming eligible for parole. On 21 May 2001 he sentenced Malone to be imprisoned for three years on the count of cultivation and six months on the count of theft. He directed that the latter sentence be concurrent with the former, so that her total effective sentence also was three years, but, solely because of his concern for the care of the youngest child of the appellant and Malone, who suffered from attention deficit hyperactive disorder, he directed that Malone should serve a period of 12 months before becoming eligible for parole.

The appellant appeals, by leave of a single Judge of Appeal, on the ground that the sentence was manifestly excessive and on the further grounds (added by

leave of the Registrar) that the judge erred in sentencing the appellant for the offence of trafficking; that the judge erred in failing to give any or any appropriate weight to matters relevant to rehabilitation; and that the judge…

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 Kingston

Details

AGLC: R v Kingston [2002] VSCA 41
Case: [2002] VSCA 41
Decision Date: 11 April 2002

CaseChat Overview and Summary

In the matter of R v Kingston, the appellant stood before the court facing charges related to the cultivation of a commercial quantity of cannabis. The case originated from the District Court of New South Wales, which had convicted and sentenced the appellant to imprisonment for his role in growing 167 immature cannabis plants using a hydroponic system with the intent to profit. The appellant appealed his sentence, arguing that the original sentence was too severe given the relatively low-level nature of his involvement and his potential for rehabilitation.

The primary legal issue before the court was whether the original sentence imposed by the District Court was appropriate in light of the appellant's role in the cannabis cultivation, his level of involvement, and his prospects for rehabilitation. The court was required to balance the need for deterrence and denunciation with the principles of proportionality and rehabilitation in sentencing.

The court examined the sentencing principles applicable to the case, including the objective of specific deterrence, general deterrence, denunciation, denunciation, and rehabilitation. The court found that while the District Court had correctly identified the seriousness of the offence, it had erred in not adequately considering the appellant's potential for rehabilitation and the relatively low-level nature of his involvement in the commercial cultivation. The court noted that the appellant's primary role was in the care and maintenance of the plants rather than being a leader or organiser of the operation. After reassessing the evidence and the principles of sentencing, the court determined that a more proportionate sentence would be appropriate. Consequently, the court re-sentenced the appellant to three years’ imprisonment with a non-parole period of 21 months.

In conclusion, the court's re-sentencing decision underscores the importance of a nuanced approach to sentencing in cases involving the cultivation of cannabis, particularly when the defendant's role is peripheral and there is a significant potential for rehabilitation. The court's ruling serves as a reminder to sentencing courts to carefully weigh the various sentencing objectives and the individual circumstances of each case.

Orders