Symons, Max Peter v The Queen - [2021] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0002

MAX PETER SYMONS	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2021
DATE OF JUDGMENT:	5 October 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 276
JUDGMENT APPEALED FROM:	[2020] VCC 1927 (Judge Lewitan)

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CRIMINAL LAW — Appeal — Sentence — Cultivating a commercial quantity of cannabis and dealing with suspected proceeds of crime — Whether a total effective sentence of four years’ imprisonment with two years and eight months non-parole manifestly excessive — Appellant sole proprietor of crop — Not mere crop-sitter — Cultivation for profit — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr J M Lowy	Docherty Legal
For the Respondent:	Mr G M Hughan	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

Pursuant to leave granted by a judge of this Court, the appellant, now aged 32 years,[1] challenges a sentence imposed upon him in the County Court on 11 December 2020, for cultivating a commercial quantity of cannabis and dealing with the proceeds of crime, claiming that it is manifestly excessive.
[1]His date of birth is 28 June 1989.

In our view, the contention that the sentence is manifestly excessive is without substance. For reasons that follow, we would dismiss the appeal.

The offending

The appellant’s offending and its aftermath may be summarised briefly.

On 16 December 2019, police attended the appellant’s property in Cochrane’s Creek in response to an altercation that he had the previous evening with his father. (The appellant and his father had separate residences on the same property.) Police detected the smell of cannabis coming from a shed and obtained a search warrant.

Upon searching the property, police found:

· cannabis drying on the floor in a bedroom;

· cannabis growing in a second room, in a hydroponic set-up;

· cash in the sum of $125,850, bundled with tape inside a backpack within an oven; and

· four containers filled with loose cannabis.

A number of cannabis plants were also located at the front of his father’s residence. The appellant’s father had pulled them out of a vegetable patch after the appellant failed to remove them at his father’s request. A search of the shed behind the appellant’s house revealed a second hydroponic set-up with a large crop of cannabis plants growing.

In total, 78 cannabis plants were located in the appellant’s house and shed, weighing 79.47 kilograms, and the loose cannabis located weighed 3.146 kilograms (the total weight of all of the cannabis thus being 82.616 kilograms). The number of plants detected was less than the commercial quantity of cannabis measured by number of plants (100 plants), but more than three times the commercial quantity measured by weight (25 kilograms).[2]
[2]See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, Column 2.

Following his arrest on 16 December 2019, the appellant told police that ‘everything and anything cannabis-related’…

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 Symons, Max Peter v The Queen

Details

AGLC: Symons, Max Peter v The Queen [2021] VSCA 276
Case: [2021] VSCA 276
Decision Date: 5 October 2021

CaseChat Overview and Summary

Symons, Max Peter, appealed against his conviction and sentence for cultivating a commercial quantity of cannabis and dealing with suspected proceeds of crime. The Court of Appeal for the State of Victoria heard the appeal. The primary issue before the court was whether the total effective sentence of four years' imprisonment, with a non-parole period of two years and eight months, was manifestly excessive. The appellant argued that the sentence was disproportionate to the offending, given his role as the sole proprietor of the cannabis crop and the absence of any aggravating factors such as violence or coercion.

The court examined the principles of sentencing, particularly focusing on the culpability and seriousness of the offences. The appellant was not merely a crop-sitter but played a significant role in the cultivation and management of the cannabis crop for profit. The court considered the total effective sentence, which included both the custodial sentence and a significant non-parole period, in the context of the appellant's role and the nature of the offending. The court held that the sentence was not manifestly excessive, as it appropriately reflected the seriousness of the crimes committed.

The appeal was dismissed, and the original sentence was upheld. The court concluded that the sentence was proportionate to the appellant's involvement and the nature of the offending, taking into account all relevant factors. The decision reinforced the importance of considering the totality of the offending when determining the appropriate sentence for serious drug-related crimes.

Orders