- Unreported Judgment
COURT OF APPEAL
CA No 339 of 1992
CA No 338 of 1992
EDWARD THOMAS SANDS
THE CHIEF JUSTICE: This an application for leave to appeal against sentence by Edward Thomas Sands. He had been charged with one Ella Jean Sands, his wife, with the unlawful production of a dangerous drug, cannabis, the quantity thereof exceeding 500 grams, and also with his wife in respect of unlawful possession of cannabis, again in quantity exceeding 500 grams. His wife who was charged with him, like the applicant, pleaded guilty to both counts.
The learned sentencing Judge sentenced the applicant to a custodial term of three years in respect of the possession and a custodial term of three and a half years in respect of the production. His wife was sentenced to two and a half years in respect of the production and two years in respect of the possession. The applicant had a criminal record and the nature of it is of some significance in the present circumstances.
His wife had no previous criminal history. The applicant had been convicted in 1986 of cultivating cannabis and also of possession of it. He was dealt with on that occasion by fining.
Then in February of 1991 he was again convicted of drug offences. He was sentenced to six months imprisonment for producing a dangerous drug, which was cannabis. The production was said to have taken place on or about 20 October 1990 and he was convicted again on that same occasion of producing a drug, a dangerous drug specified in the Second and Third Schedule, between June and November of 1990, and was sentenced to a three and a half year term of imprisonment and a further term of imprisonment of one year was imposed in respect of possession of money used in connection with the supply of drugs.
He did, in fact, have a further conviction which can be mentioned, unlawful possession of a concealable firearm, the date of the offence being in November 1990 and the conviction occurring on 18 February of 1991.
The Judge who had sentenced him to the three and an half year effective term in February of 1991 was the one concerned in the imposition of the present sentences which concern us.
When the applicant was convicted in February of 1991, that was over the dealing with/possession of 618 plants which had, associated with them when the police intervened, a five and a half kilogram harvested crop.
On the occasion that concerns us there were 17 mature plants cultivated and there was an associated harvested crop of 7.9 kilograms.
It’s obvious that a somewhat larger crop was found in association with the very reduced number of plants which were found on the second occasion.
However, dealing with the 7.0 kilograms, we’re told that that amounted to nine times the scheduled quantity and that, for the relevance this might have, its street value was some 25 to 30 thousand dollars.
The sentencing Judge set out the facts of the matter as they were placed before him and added some comments about matters that he inferred. These are included in the sentencing Judge’s observations.
He was not impressed by the explanation put forward by Mrs Sands as to her reasons for cultivation and how she came to succumb to the idea of its acceptability. Her explanation was that she was in very ill health; understood her life expectation was limited and wished to raise money to visit interstate relatives. The Judge expressed reservations about accepting that.
He then said this, and it is difficult to accept completely the logic of his observation:
“What’s very significant is that whereas previously there were 618 plants with a product of 5.5 kilograms, on the later occasion there were 17 plants and a product of 7.9 kilograms.”
The Judge said,
“This suggests that you had developed an infinitely more sophisticated and effective method of producing marijuana.”
The basis for that observation is not really made out. The 5.5 kilograms may or may not have represented the total crop of the 618 plants. It happens to be the amount that was discovered.
The 7.9 kilograms, it might even be said, may or may not have represented the total crop of the 17 plants. Again, it was simply the amount that was discovered.
These bare facts alone do not suggest that there had been evolved, to use the Judge’s word, a more sophisticated, an infinitely more sophisticated and effective method of production.
One factor which makes the position of the applicant far worse so far as this Court on review is concerned and so far as the sentencing Judge was concerned, was that he involved himself in the production and also possession of the marijuana while he was on leave from detention centres.
As His Honour recorded, he was given leave of absence from the Rockhampton Correctional Centre and also from the Western Outreach Camp at Charleville and he took advantage at those times to assist in the preparation of marijuana for sale.
The version put before the sentencing Judge by counsel was that the assistance that he gave was merely to help press the marijuana. In other words, the defence version was that the assistance was, indeed, minor in extent. The fact that he had taken part in the process to which I have referred seemed to be established, in any event, by the fact that the applicant’s fingerprints were found inside bags in which the marijuana was stored.
The learned sentencing Judge did then say this. He said it wasn’t possible, in his view, for the applicant to speak of a lesser involvement on his part. He said, “it seems more likely than not that your understanding of how to cultivate marijuana successfully was used by your wife.” That’s part of what he said and pausing there that aspect is not contested by defence counsel before us as being other than a reasonable deduction.
However, His Honour continued, “Used by your wife to produce this high level of product from the small number of plants.” That would seem to imply that expert advice, at a very high level, was given by the applicant to his wife and this enabled the production, once again, at a very high level.
The difficulty with this is that a high level of product from a small number of plants can’t be accepted, with respect.
The wife’s version was that being left alone at the same property whether the marijuana had been grown on the previous occasion, seed produced by the preceding crop germinated. She said that for a period she pulled out the plants which were produced and threw them away but eventually succumbed to the idea that she could make money by the cultivation of marijuana and proceeded to do that for the reason that I have already stated, namely that with a shorter life expectancy she wanted to get together the money necessary for her to visit her interstate relatives.
Now, counsel for the applicant before us did not appear disposed to contest very strongly that a two and a half years term for the wife was acceptable as an appropriate penalty, and he conceded it was within range. Then if the applicant and his wife were equally culpable he could not consequentially challenge the three and a half years and indeed the three and a half years cumulative that was imposed upon the applicant.
He made his principal submissions also on the lines that it could not be properly accepted that the applicant was in any way equally culpable with his wife on the second occasion. He had merely lent some minor assistance to his wife of the occasions when he was home on leave and the crown certainly had not proved anything to the contrary and the Court accordingly could not proceed on any other basis.
It is true that the acts of positive physical assistance which were established by the Crown and by admission on behalf of the applicant were minor compared with the wife’s extensive continuing acts of cultivation, but the sentencing Judge then added to that his deduction that it was more likely than not that the applicant’s understanding of cultivation techniques had been passed on and used by the wife.
Well, to that the applicant’s counsel responds before us by saying that there is no high degree of expertise that was involved in the way this crop was produced itself from seeds from a preceding crop in the property occupied by the applicant’s wife.
In the end I think it must be correct to say that the applicant had involved himself to the extent which it would be fair to describe as material in the production of the crop on the second occasion. He’d lent physical acts of assistance and the deduction that he had offered advice as well is not disputed. However, the exact level of his involvement is not established and it can’t be assume that it was any more than I have just stated.
The really serious features in the applicant’s case are that having been sentenced to a three and a half year custodial term, he occupied himself on his leave visits to his wife by giving some assistance in the production of the same sort of prohibited crop that had landed him in his previous difficulties. Certainly it showed that the sentence which had been imposed in his case was far from having an appropriate deterrent effect.
However, at the end of it all the facts remain that his positive assistance so far as it was established was less than the physical involvement of his wife. He pleaded guilty. His Honour describes him as having given an early intimation that he would plead. The result of that was that his Honour felt that he could give a quite substantial reduction of the sentence that he would otherwise have imposed.
He does not state specifically what he would otherwise have imposed but if it was substantially more than the three and half years which he did impose, counsel for the defence is probably justified in suggesting that His Honour must have been talkin - must have been intending to refer to a period of perhaps some five years.
Now, the sentence which was imposed on the applicant of three and a half years was imposed cumulatively on the completion of the sentence which he was then currently serving. This, to my mind, is a very onerous penalty.
It is onerous in the effect that it would have becuase it was at the end, as it were, of a continuaing period of inprisonment and would not commence to operate until the time when his current sentence had been fully served.
There is, I would conclude, a degree of misapprehension in the way that His Honour approached the facts and deduced that there was a high level of sophistication which had been acquired by the applicant in the production of cannabis and passed on by him to enable a surprisingly high level, as His Honour thought, of product result. I do not think that that approach is acceptable.
Notwithstanding the features which tend to make the conduct of the applicant appear in a worse light, it seems to me that some misapprehension having occurred in the approach adopted by His Honour, this court is justified and indeed obliged to consider the matter for itself anew.
Further, in the circumstances and looking at the degree of participation which has been proved against the applicant, I would conclude that the sentence of three and a half years cumulatively which was applied in his case is manifestly excessive and I would favour allowing the application and then allowing the appeal and setting aside the sentences imposed below, so that in the case of the charges both of production and possession terms of two years would be substituted for the terms of three and a half and three years respectivley imposed below.
The terms which I am suggesting will again be cumulative upon the completion of the sentences presently being served as referred to by His Honour.
DAVIES JA: I agree.
PINCUS JA: I agree.
- Published Case Name:
R v Sands
- Shortened Case Name:
R v Sands
 QCA 11
Macrossan CJ, Pincus JA, Davies JA
02 Feb 1993
No Litigation History