R v McKittrick - [2008] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 400 of 2007

THE QUEEN
	v
DEAN PATRICK McKITTRICK

---

JUDGES:	BUCHANAN and NEAVE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2008
DATE OF JUDGMENT:	29 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 69

---

CRIMINAL LAW – Appeal against conviction for cultivating not less than a commercial quantity of a narcotic plant – Crown concession that trial judge erred in directions on the required mens rea – Appeal against conviction on count 1 allowed, verdict of guilty on alternative count of cultivating a narcotic plant substituted – Re-sentenced on remaining counts of cultivating a narcotic plant, possession of a drug of dependence and dishonestly handling stolen goods, to total effective sentence of one year’s imprisonment, with all but 180 days of the sentence to be suspended for two years.

---

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 with Mr S Bayles	Rob Melasecca Barristers & Solicitors

BUCHANAN JA:

I will ask Neave JA to deliver the first judgment in this matter.

NEAVE JA:

The applicant, Mr Dean Patrick McKittrick, was found guilty by a County Court jury of one count of cultivating not less than a commercial quantity of a narcotic plant (count 1). He had previously pleaded guilty to three other counts on the same presentment, namely, cultivating a narcotic plant (count 2), possession of a drug of dependence (count 3) and dishonestly handling stolen goods (count 4).

The applicant was sentenced to two years' imprisonment on count 1 and three months' imprisonment on each of counts 3 and 4. He was not convicted or punished for count 2, because the jury verdict related to the same facts that provided the basis for count 1.[1] The learned sentencing judge made no orders for cumulation, so that the total effective sentence was two years' imprisonment. His Honour ordered that one year of the total effective sentence be suspended for a period of three years.
[1]See Interpretation of Legislation Act 1984, s 51(1).

This is an application for leave to appeal against the conviction on count 1 and an application for leave to appeal against the total effective sentence which was imposed.

The background to the offences

In 2002, the applicant and his family moved from Hastings to a property in Nicholson, just east of Bairnsdale. They did so because the applicant's wife developed a serious liver and kidney condition which ultimately resulted in the loss of a kidney and required her to have a liver transplant. When the family was told that it was important for her to live in a pollution-free environment, they moved to the Bairnsdale property and the applicant left his job and became his wife's full-time carer.

At that time the applicant was a long-term cannabis user and had a serious alcohol problem. In his evidence at trial, the applicant said he was…

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 McKittrick

Details

AGLC: R v McKittrick [2008] VSCA 69
Case: [2008] VSCA 69
Decision Date: 29 April 2008

CaseChat Overview and Summary

The case of R v McKittrick involves an appeal against the conviction of the appellant for cultivating not less than a commercial quantity of a narcotic plant. The case was heard in the appellate court, which was required to review the decisions made in the trial court. The appellant was convicted on count 1 of cultivating not less than a commercial quantity of a narcotic plant, along with alternative counts of cultivating a narcotic plant, possession of a drug of dependence, and dishonestly handling stolen goods.

The legal issues the court was required to decide included whether the trial judge erred in the directions given to the jury regarding the required mens rea for the offence of cultivating not less than a commercial quantity of a narcotic plant. The Crown conceded that the trial judge had indeed erred in this regard. The court also had to consider whether the conviction on count 1 should be quashed and whether a verdict of guilty on the alternative count of cultivating a narcotic plant should be substituted. Additionally, the court had to determine the appropriate sentence for the remaining counts.

The appellate court found that the trial judge had indeed erred in the directions given to the jury regarding the required mens rea. The court quashed the conviction on count 1 and substituted a verdict of guilty on the alternative count of cultivating a narcotic plant. The court then proceeded to re-sentence the appellant on the remaining counts, resulting in a total effective sentence of one year’s imprisonment, with all but 180 days of the sentence to be suspended for two years. The appeal against conviction on count 1 was allowed, and the substituted verdict and re-sentencing were upheld by the court.

Orders