R v McCulloch - [2009] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 705 of 2007

THE QUEEN
	v
ANDREW DAVID McCULLOCH

JUDGES:	BUCHANAN and VINCENT JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2009
DATE OF JUDGMENT:	18 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 151
JUDGMENT APPEALED FROM:	R v Andrew David McCulloch (Unreported County Court of Victoria, Judge Jenkins, 18 June 2007)

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Criminal law – Sentence – Cultivation of cannabis and theft of electricity – Finding by sentencing judge that offender cultivated cannabis for sale not open on the evidence – Offender re-sentenced to be imprisoned for a term of two years and six months with a minimum term of 21 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of cultivating not less than a commercial quantity of cannabis (count 1) and a count of theft of electricity (count 2). After a plea, the appellant was sentenced to be imprisoned for a term of three years and six months on the count of cultivation of a commercial quantity of cannabis and for a term of six months on the count of theft. The sentencing judge ordered that three months of the sentence on the count of theft be served cumulatively upon the sentence on the count of cultivation, creating a total effective sentence of three years and nine months' imprisonment. It was ordered that the appellant serve a term of two years and six months' imprisonment before he was to be eligible for parole.

The appellant has been granted leave to appeal against his sentence on a number of grounds.

On 21 July 2006, police searched a property at Kyneton at which the appellant resided. In a room in a large commercial shed on the property, the police found a glass-fronted box containing a heating lamp and 11 small cannabis seedlings. In another room the police found five mature cannabis plants in tubs. The walls and ceiling of the room were lined with plastic sheets and the plants were illuminated by five large lights and ministered to by a watering system. The room was fitted with extraction fans. In another room there were a further five mature cannabis plants, again illuminated by large globes, with a watering system controlled by timers. In the house the police found a quantity of dried cannabis plants and dried cannabis leaf, the cannabis weighing in all a total of 30.611 kilograms.

The appellant has attained the age of 48 years. He was adopted as a baby and has a close relationship with both of his adoptive parents. The appellant left school at the end of year 10 and then completed a four-year apprenticeship as an electrician. The appellant has worked as an electrician, in steelworks and as a crowd controller.…

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 McCulloch

Details

AGLC: R v McCulloch [2009] VSCA 151
Case: [2009] VSCA 151
Decision Date: 18 June 2009

CaseChat Overview and Summary

In the case of R v McCulloch, the appellant stood before the court contesting a sentence imposed following a conviction for cultivating cannabis and stealing electricity. The matter was heard in the court of appeal, which was tasked with reviewing the sentence handed down by the lower court.

The central legal issue before the court was whether the sentencing judge had erred in finding that the appellant cultivated cannabis for the purpose of sale. The appellant argued that this finding was not supported by the evidence and, as such, the sentence was excessive. The court needed to determine whether the sentencing judge's conclusion was open on the evidence and, if not, whether the sentence should be altered accordingly.

The court found that the sentencing judge's conclusion that the appellant cultivated cannabis for sale was not supported by the evidence. The court emphasised the importance of findings being based on the evidence presented. In light of this, the court re-sentenced the appellant to a term of imprisonment of two years and six months, with a non-parole period of 21 months. The court considered the nature and circumstances of the offending, the appellant's criminal history, and the principles of sentencing in reaching its decision.

The court did not make any additional orders beyond the re-sentencing. The appellant's sentence was adjusted to reflect the correct findings based on the evidence, ensuring that the sentence was both just and proportionate to the offending.

Orders