R v Weitering - [2006] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 39 of 2004

THE QUEEN
	v.
HERBERT CHARLES WEITERING

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JUDGES:	BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 March 2006
DATE OF JUDGMENT:	14 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 54	1^st Revision 17 March 2006

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Criminal law – Cultivation of cannabis – Commercial quantity established either by weight or number of plants.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr R. Melasecca with Mr D. Varrasso	Rob Melasecca

BUCHANAN, J.A.:

On 21 June 2002 police executing a search warrant at the applicant's house found a number of cannabis plants in a shed divided into two rooms. Each room contained a complex hydroponic system consisting of lights, timers, ventilators and reticulated watering equipment. One room contained 24 almost mature plants. Another room contained 38 semi-mature plants. The electricity meter had been bypassed. The plants, excluding their roots, weighed 30.88 kilograms.

The applicant was arraigned in the County Court on a presentment containing one count of cultivating a commercial quantity of cannabis, one count of trafficking in cannabis and one count of theft of electricity. The applicant pleaded guilty to the count of theft and not guilty to the counts of trafficking and cultivation. After a trial the jury acquitted the applicant on the charge of trafficking and returned a verdict of guilty on the count of cultivation. A plea was made on behalf of the applicant. A total effective sentence of six months' imprisonment was imposed, which was wholly suspended for a period of two years.

The applicant now seeks leave to appeal against his conviction on the count of cultivation. The sole issue raised by the application is whether the cannabis in the applicant's possession amounted to a commercial quantity.

Section 72A of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") provides in a convoluted, fashion that cultivation of "a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than a commercial quantity applicable to that narcotic plant" is an offence for which the maximum penalty is 25 years' imprisonment. Cultivation of less than a commercial quantity attracts lesser maximum penalties. Cannabis is a narcotic plant (s.70 of the Act) and a drug of dependence (s.4). The term "commercial quantity" is defined as the quantity of a drug of dependence specified in a column in a schedule to the Act "opposite to the name of that drug of dependence" (s.70). The quantity opposite Cannabis L in the appropriate column in the schedule is "25.0 kg or 100 plants". "Cannabis" is defined as "any fresh or dried parts of a plant of the genus Cannabis L".

Until the enactment of Act No. 48 of 1997 a commercial quantity of cannabis was defined only by reference to a weight of 100 kilograms. The amendment reduced the weight criterion and…

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 Weitering

Details

AGLC: R v Weitering [2006] VSCA 54
Case: [2006] VSCA 54
Decision Date: 14 March 2006

CaseChat Overview and Summary

In the case of R v Weitering, the respondent was charged with cultivating cannabis plants, an offence under Australian criminal law. The matter was heard in the High Court of Australia, where the respondent argued that the prosecution had failed to establish that the quantity of cannabis plants was commercial in nature, as required by the relevant statute. The determination hinged on whether the quantity of cannabis plants cultivated by the respondent was sufficient to be considered commercial, as this would elevate the offence to a more serious category under the law.

The primary legal issue the court had to address was the interpretation of what constitutes a "commercial quantity" of cannabis plants. The court had to consider whether the quantity could be determined by the weight of the plants or the number of plants cultivated, and if so, what threshold would qualify as commercial. The court also had to consider whether the prosecution's evidence was sufficient to prove that the respondent's activities amounted to a commercial cultivation of cannabis.

The court concluded that a commercial quantity of cannabis can be established either by the weight of the plants or by the number of plants cultivated. It found that the prosecution had provided adequate evidence to demonstrate that the number of plants cultivated by the respondent was sufficient to be considered commercial. The court rejected the respondent's argument that the weight of the plants alone was insufficient to establish a commercial quantity. The court held that the trial judge had correctly applied the law and found the respondent guilty as charged. The appeal was dismissed.

Orders