R v Reed - [2008] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 158 of 2007

THE QUEEN
	v
TERRANCE NORMAN REED

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JUDGES:	VINCENT, NEAVE & REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2008
DATE OF ORDERS:	4 February 2008
REASONS FOR JUDGMENT:	22 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 20

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Criminal law – Conviction – Cultivating a commercial quantity of a narcotic plant (count 1) – Theft (count 2) – Crown concession that judge misdirected the jury as to intent required to found conviction for cultivating cannabis in not less than a commercial quantity – Conviction on count 1 set aside and substituted with that of cultivation simpliciter.

Criminal law – Sentence – Appellant re-sentenced – Appellant had served 266 days in custody – No immediate period of incarceration.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Patrick W Dwyer

VINCENT JA
NEAVE JA
REDLICH JA:

The appellant was found guilty by a jury in the County Court at Melbourne, on 30 March 2007, on one count of cultivating a commercial quantity of a narcotic plant (count 1) and a related count of theft of electricity used in the process (count 2).

At the consequent plea hearing, the appellant admitted the commission of a number of theft and other offences between October 1973 and November 1980 and after consideration of the matters advanced on his behalf, his Honour imposed on count 1, a term of imprisonment of three years and, on count 2, imprisonment for one month to be served cumulatively. This created a total effective sentence of three years and one month in respect of which his Honour fixed a non-parole period of 18 months.[1]
[1]The co-accused, Peter Stevens, was sentenced by a different judge to be imprisoned for 12 months for cultivation of a commercial quantity of cannabis, nine months for trafficking in cannabis and one month for theft, which, after an order for cumulation, made a total effective sentence of imprisonment for 13 months. In his case, a non-parole period of six months was fixed.

This Court, on 4 February 2008, allowed the appeals against both conviction and sentence and indicated that it would hand down its reasons at a later date. The following are the circumstances which led to the making of those orders.

The circumstances surrounding the commission of the alleged offences upon which the convictions were based were described by the sentencing judge as follows:

On 18 August 2004 the police executed a search warrant at a home in Werribee. Your former co-accused Peter Stevens was there supervising the growth of five large healthy cannabis plants. They were grown hydroponically in a locked bedroom with covered windows and a large exhaust system. The usual hydroponic water system was in use with large electric lighting. The weight of the five plants was more than 25 kilograms and they were almost ready to harvest. There was also…

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 Reed

Details

AGLC: R v Reed [2008] VSCA 20
Case: [2008] VSCA 20
Decision Date: 22 February 2008

CaseChat Overview and Summary

The appellant, Reed, appealed against his conviction and sentence for cultivating a commercial quantity of a narcotic plant, namely cannabis, and for theft. The case was heard in the Supreme Court of Queensland. The appellant's appeal challenged the sufficiency of the evidence to support his conviction for cultivating a commercial quantity of a narcotic plant and the adequacy of his sentence.

The court was required to determine whether the evidence was sufficient to support the conviction for cultivating a commercial quantity of a narcotic plant and whether the sentence imposed was appropriate. The court noted that the Crown conceded that the trial judge misdirected the jury in relation to the intent required for the conviction. The court accepted this concession and held that the conviction for cultivating a commercial quantity of a narcotic plant was not supported by the evidence. The court set aside the conviction for count 1 and substituted it with a conviction for cultivation simpliciter. The court also considered the appellant's sentence, noting that he had already served 266 days in custody. The court decided to re-sentence the appellant and determined that there should be no immediate period of incarceration.

The court set aside the conviction for cultivating a commercial quantity of a narcotic plant and substituted it with a conviction for cultivation simpliciter. The court also re-sentenced the appellant, determining that there should be no immediate period of incarceration.

Orders