R v McCulloch - [2009] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 327 of 2005

THE QUEEN
	v
DAVID STEVEN MCCULLOCH

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JUDGES:	MAXWELL P, VINCENT JA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2008
DATE OF JUDGMENT:	12 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 34	2^nd Revision, 6 April 2009 Catchwords, Para 6, n 5, Para 23, Para 24 and n 17

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CRIMINAL LAW – Conviction – Trafficking a commercial quantity of a drug of dependence – Whether verdict unsafe or unsatisfactory – Consideration of whether the actus reus and mens rea in relation to a commercial quantity must be contemporaneous – R v Giretti (1986) 24 A Crim R 112 – Whether judge erred in failing to leave as an alternative trafficking simpliciter – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Whether manifestly excessive – Delay in bringing the matter to trial – Personal circumstances of the applicant – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Victoria Legal Aid

MAXWELL P

VINCENT JA
HARGRAVE AJA:

On 16 September 2005, the applicant was found guilty by the jury empanelled in his trial in the County Court at Melbourne of trafficking a commercial quantity of a drug of dependence, tetrahydrocannabinol (count 1), and a commercial quantity drug, methylamphetamine (count 2). He had two prior convictions, the first, in 1983, for handling stolen goods and the second, in 1987, of trafficking a drug of dependence (heroin).[1]
[1](a) Handling stolen goods: Sentenced to pay a fine of $1,000 in default to be imprisoned for three months; and
(b)Heroin: Sentenced to be imprisoned for 11 years and serve a minimum of eight years and six months before being eligible for parole.

After hearing a plea in mitigation of penalty, the judge, on 28 October 2005, imposed a term of 9 years’ imprisonment on each count, directing that 5 years of that on count 2 was to be served cumulatively, thereby creating a total effective sentence of 14 years’ imprisonment. A non-parole period of 11 years was fixed.[2]
[2]His Honour declared that, on count 2, the applicant was sentenced as a serious drug offender pursuant to Part 2A of the Sentencing Act 1991 (Vic).

A co-offender, Allan John Cotter, was found not guilty of these offences, but was convicted of trafficking simpliciter[3] in both substances. The total effective sentence imposed upon him was imprisonment for 3 years and 6 months in respect of which a non-parole period of 1 year and 6 months was fixed.
[3]The maximum penalty of trafficking a commercial quantity of a drug of dependence 25 years’ imprisonment and for trafficking simply a drug of dependence the maximum penalty is 15 years.

On 9 October 2001, at the County Court at Melbourne, Mario Stumpo, who was also involved in the activities giving rise to these counts, pleaded guilty to one count of…

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 34
Case: [2009] VSCA 34
Decision Date: 12 March 2009

CaseChat Overview and Summary

In the case of R v McCulloch, the appellant was convicted of trafficking a commercial quantity of a drug of dependence. The matter was brought to the court on an application for leave to appeal against conviction and sentence. The appeal against conviction argued that the verdict was unsafe and unsatisfactory, particularly in relation to whether the actus reus and mens rea in relation to a commercial quantity must be contemporaneous. The appeal also claimed that the judge erred in failing to leave as an alternative trafficking simpliciter. The appeal against sentence argued that the sentence was manifestly excessive due to the delay in bringing the matter to trial and the personal circumstances of the applicant.

The court considered the legal issues related to the contemporaneousness of actus reus and mens rea in the context of trafficking a commercial quantity of a drug of dependence. The court examined the authorities, including R v Giretti, to determine whether the elements of the offence must occur simultaneously. The court also considered whether the judge should have left trafficking simpliciter as an alternative verdict. In relation to the appeal against sentence, the court assessed whether the delay in bringing the matter to trial and the personal circumstances of the appellant warranted a reduction in sentence.

The court found that the evidence supported the appellant's conviction for trafficking a commercial quantity of a drug of dependence. The court concluded that the actus reus and mens rea did not need to be contemporaneous and that the judge did not err in not leaving trafficking simpliciter as an alternative. The court further found that the sentence was not manifestly excessive, taking into account the delay in bringing the matter to trial and the personal circumstances of the appellant. Consequently, the application for leave to appeal against conviction was refused, and the application for leave to appeal against sentence was dismissed.

Orders