R v S - [2006] VSCA 134

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 266 of 2005

THE QUEEN
	v.
S.

---

JUDGES:	MAXWELL, A.C.J, NEAVE, J.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2006
DATE OF JUDGMENT:	26 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 134

---

CRIMINAL LAW – Sentencing – Cultivation of a large commercial quantity of a narcotic plant – whether sentence of six years imprisonment with a minimum of three years nine months manifestly excessive – mitigating factors considered by sentencing judge – no reason to doubt that matters said to have been taken into account were taken into account – inappropriate reliance by Crown on opinion of Chief Crown Prosecutor in submission as to sentencing range – Crown assistance on available sentencing range to be encouraged, but should be the view of the Crown, not of an individual officer of the Crown – sentence not manifestly excessive – appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O.P. Holdenson, Q.C.	Anthony G. Isaacs
For the Respondent	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

MAXWELL, A.C.J.,
NEAVE, J.A.,
BONGIORNO, A.J.A.:

The appellant (“S”) is 55 years of age. On 30 August 2005 he pleaded guilty in the County Court to one count of having cultivated not less than a large commercial quantity of a narcotic plant, namely cannabis L, contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is life imprisonment.

Following a plea in mitigation on 5 September 2005, S was sentenced to six years’ imprisonment with a minimum of three years nine months to be served before being eligible for parole. He now appeals against that sentence pursuant to leave granted by Charles JA on 24 February 2006.

S had had a love of horses virtually all his life. He began as an apprentice jockey at the age of 15 and eventually became a trainer, working both in Victoria and South Australia. In 2002 his marriage broke up. His wife moved to South Australia, leaving him with a number of horses, including retired race horses and brood mares, to all of which he was apparently quite attached. He kept these horses on a property on which he lived, surviving on a disability pension which he had obtained because of an arm injury.

Eventually S was evicted from this property. He subsequently accepted an offer from an acquaintance to provide him with an alternative property upon which he could live and keep his horses. In return he would assist in the raising of a crop of cannabis. A property was found which was suitable for this purpose. Indeed, it was peculiarly suitable having been a flower farm equipped with hot houses and a convenient drip irrigation system. Thus, without any outlay on his part, S obtained a place to live and a place to keep his horses in return for being the caretaker of a large cannabis crop. As the…

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 S

Details

AGLC: R v S [2006] VSCA 134
Case: [2006] VSCA 134
Decision Date: 26 June 2006

CaseChat Overview and Summary

In the case of R v S, the appellant was convicted of cultivating a large commercial quantity of cannabis plants. The dispute centred on the sentencing imposed by the trial judge, which was a six-year imprisonment term with a minimum of three years and nine months. The appellant argued that this sentence was manifestly excessive, while the Crown contended that the sentence was within the appropriate range.

The central legal issue for the court to decide was whether the sentence imposed by the trial judge was manifestly excessive, given the mitigating factors considered. The court also needed to assess whether the Crown's reliance on the opinion of the Chief Crown Prosecutor regarding the sentencing range was appropriate. The appellant argued that the sentence was manifestly excessive, pointing to mitigating factors such as his limited criminal history and the prospect of rehabilitation.

In dismissing the appeal, the court found that the trial judge had appropriately considered the mitigating factors presented and there was no reason to doubt that these factors were taken into account. The court further held that while the Crown's assistance on the available sentencing range was encouraged, it should reflect the view of the Crown rather than an individual officer. Given the trial judge's careful consideration of the mitigating factors and the absence of any evidence that the sentence was manifestly excessive, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal.

Orders