Reilly v The Queen - [2010] VSCA 278

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0917

DAVID ANDREW REILLY	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2010
DATE OF JUDGMENT	22 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 278
JUDGMENT APPEALED FROM	R v Reilly (Unreported, County Court of Victoria, Judge Howard, 9 June 2010)

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CRIMINAL LAW – Drug offences – ‘Operation Jedi’ – Conspiracy to cultivate cannabis –Possession of methylamphetamine – Fresh evidence – Whether sentencing judge incorrectly characterised applicant’s role in offending – Whether sentence should have been wholly suspended – Parity – Manifest excess – Delay – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P J Doyle	Revill & Papa Lawyers
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Weinberg JA.

WEINBERG JA:

The applicant pleaded guilty in the County Court at Melbourne to one count of conspiracy to cultivate a narcotic plant, namely Cannabis L, and one count of possession of a drug of dependence, namely methylamphetamine. His offending came to light as a result of ‘Operation Jedi’, an extensive investigation into major drug trafficking carried out by the police between August 2005 and January 2006. The operation involved the covert recording of thousands of hours of intercepted telephone conversations, surveillance of suspects, and the seizure of substantial quantities of drugs. A number of offenders were arrested and charged.

Prior to sentencing the applicant, the sentencing judge had already dealt with the three principals in the operation, John Waters, Boris Trajkovski and Tomislav Samac. He had sentenced them each to very lengthy terms of imprisonment. The applicant was one of ten other offenders associated in various ways with Operation Jedi, all of whom pleaded guilty to various, less serious, drug offences.

The facts surrounding the commission of the applicant’s offences can be briefly stated. Count 1 concerned the cultivation of cannabis, hydroponically grown, in what was described as a ‘grow-house’ at a property located at 6 Scott Street, Melton. Waters had purchased that property from his former wife, who happened to be the sister of one Craig Bennett. Bennett was the third member of the conspiracy to cultivate, the subject of count 1.

The conspiracy began in November 2005. On 18 November, the applicant took part in a telephone conversation with both Bennett and Waters which, although conducted in code, reflected his awareness of the precise nature and purpose of the scheme.

In about mid-December 2005, Waters took possession of the property. The

applicant was assigned the task of installing the hydroponic equipment. Waters’ role was to finance the entire scheme, and to procure some 16 cannabis plants with which to begin the operation. The applicant’s role was to watch over the premises, and to monitor the growing of the plants.

On 18 January 2006, police executed a search warrant at the property. They discovered a number of black plastic tubs, some…

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 Reilly v The Queen

Details

AGLC: Reilly v The Queen [2010] VSCA 278
Case: [2010] VSCA 278
Decision Date: 22 October 2010

CaseChat Overview and Summary

Reilly, the applicant, was convicted of various drug offences, including conspiracy to cultivate cannabis and possession of methylamphetamine, following "Operation Jedi." The applicant appealed against his sentence, arguing that the sentencing judge had incorrectly characterised his role in the offending and that the sentence should have been wholly suspended. The High Court of Australia was asked to review the appeal.

The legal issues before the court were whether the sentencing judge had made an error in characterising the applicant’s role in the offending, and if the sentence imposed was manifestly excessive or disproportionate given the circumstances. The applicant contended that the sentencing judge had not given sufficient weight to his minimal role in the conspiracy and that a wholly suspended sentence would have been more appropriate. The respondent argued that the sentence was proportionate and that the applicant’s role was correctly assessed by the sentencing judge.

The court held that the sentencing judge had not erred in characterising the applicant’s role in the offending, as there was substantial evidence to support the judge’s findings. The court also found that the sentence was not manifestly excessive, and the principles of parity and delay did not apply in this case. The court held that the delay in seeking leave to appeal did not prejudice the respondent, and the appeal was refused due to the absence of a substantial miscarriage of justice.

No orders were made as the appeal was dismissed.

Orders