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  • Unreported Judgment

R v Adams

 

[2003] QCA 22

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED EX TEMPORE ON:

5 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2003

JUDGES:

McMurdo P, Jerrard JA and Cullinane J
Separate reasons for judgment for each member of the Court; each concurring as to the orders made

ORDERS:

1. Application for leave to appeal granted
2. Appeal allowed
3. Sentence imposed at first instance set aside, and instead a sentence of four months imprisonment imposed 

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENCE – where applicant pleaded guilty to possession of cannabis and related charges – where no commercial element to offence – where applicant sentenced to 12 months imprisonment, suspended after four months with an operation period of five years – where applicant had served the term of imprisonment at date of appeal – whether sentence manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant previously convicted of same offence eight years prior – where applicant demonstrated a good employment history – where applicant became cannabis free during the period leading up to sentence – whether learned sentencing judge failed to take these factors into account

R v Ball [1999] QCA 427; CA No 250 of 1999, 8 October 1999, distinguished

COUNSEL:

The applicant appeared on his own behalf
D L Meredith for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

 

 

THE PRESIDENT:  Justice Jerrard will deliver his reasons first.

 

JERRARD JA:  On the 26th of September 2002, the applicant Christopher Adams, was sentenced on his plea of guilty to three charges on an ex officio indictment to a sentence of 12 months imprisonment to be suspended after four months for an operational period of five years.

 

The charges to which Mr Adams pleaded guilty were:

 

  • The unlawful production on 10th April 2002, of a quantity exceeding 500 grams of the dangerous drug cannabis sativa. 
  • The unlawful possession on 10th April 2002, of a quantity exceeding 500 grams of the dangerous drug cannabis sativa.
  • Having in his possession on 10th April 2002, a quantity of things, namely plastic materials, pots, a padlock, a key, a quantity of electrical equipment, a cabinet, fans, heaters, a quantity of scanners and one air pump, for use in connection with the commission of the crime of producing that dangerous drug.

 

Mr Adams has in fact served the sentence of four months imprisonment and is now undergoing the suspension of the remaining period of imprisonment.  He continues his application for leave to appeal against that sentence, which application was adjourned from the date on which it was already listed for hearing in November 2002.  Mr Adams argues that the sentence imposed was manifestly excessive, that the trial judge failed to take into account that there was no commercial intent in his production of the cannabis, and further that the judge failed to take into account the lengthy period of time which had elapsed since Mr Adam's first and only conviction was incurred eight years ago.

 

That conviction was in the District Court of South Australia, on the 7th of December 1995, on which date Mr Adams was sentenced to 18 months imprisonment, entirely suspended upon his entry into a bond to be of good behaviour, for the offence of producing a controlled substance, namely cannabis sativa. 

 

Mr Adams is a 50 year old single man, with what his counsel described to the learned sentencing Judge as a good employment history, who financially assists his very elderly father, and that conviction in South Australia is his only prior conviction for any criminal offence.  His home in Brisbane was visited by police on 10th April 2002, and they discovered there a hydroponic system for the production of cannabis sativa.

 

He had nine large plants with a net wet weight, excluding their roots, of 15.25 kilograms, and his counsel informed the learned sentencing Judge that Mr Adams expected to produce about 1.52 kilograms of dried cannabis leaf from those nine plants.  Mr Adams was also found in possession of 22 small plants, with a net weight of about 10 grams each, and of packages of dried cannabis weighing just over 2 kilograms.  That dried cannabis formed a basis of the second count to which Mr Adams pleaded guilty.

 

Mr Adams told the police that the growing cannabis was for him and some friends.  His own counsel submissions were that the 1.52 kilograms of dried material expected to be produced from the nine large plants, which amounted to about 3 pounds 4 ounces, was to be divided between Mr Adams and three other people.  All four of them would receive therefore between 12 and 15 ounces each.

 

Counsel for Mr Adams also informed the sentencing court that Mr Adams had developed a physical intolerance of alcohol when aged about 42, and that from that time onwards his use of cannabis had escalated.  He was described by counsel as being addicted to it at the time of the raid on his premises, at which time his consumption was said to be at the level of about one ounce per week.  He has since succeeded, or he had since succeeded in becoming drug free, in that, an examination conducted on 10th September 2002 did not disclose the presence of tetrahydrocannabinoids in his body.

 

Mr Adams had told the police that the two kilograms of dried cannabis material had been given to him by another person, and counsel for the Crown said Mr Adams had told the police he intended to use it to make butter.  This method of consumption of cannabis was apparently envisaged because of problems Mr Adams has as an asthmatic in injesting cannabis by smoking it.

 

The learned Judge made an order forfeiting the property admittedly used in connection with the production of the cannabis, and imposed the sentence under appeal.  The Judge made clear in exchanges with counsel prior to the imposition of the sentence, that he thought it appropriate to, and I quote, "err on the side of the production of cannabis for a non commercial purpose", and when sentencing Mr Adams explicitly told him that the Judge was not suggesting that Mr Adams was a drug dealer.

 

However, the Judge identified Mr Adams' prior conviction and a suspended sentence of 18 months imprisonment as being a relevant and significant factor on sentence.  In light of those sentencing remarks, it cannot be said with accuracy that the learned Judge failed to take into account Mr Adams' assertion that there was no commercial intent in his production of cannabis.  Nor does it seem that the Judge failed to take into account the period which had elapsed since the last sentence was imposed.

 

It is relevant that Mr Adams was given an entirely non custodial sentence previously, for the same offence which he has now repeated.  An examination of other sentences imposed by this Court, which appear in a schedule annexed to the written submission of the respondent Director of Public Prosecutions, reveal that on a number of occasions this Court has either itself imposed or not interfered with, entirely non custodial sentences for the production of cannabis, and sentences imposed have ranged from fines with or without a conviction being recorded, to entirely suspended sentences, community service orders, and orders for probation.

 

Commonly found in these matters is a plea of guilty, together with either the feature of production for the personal use of the grower only (sometimes for medical reasons) or the feature of the grower having no prior convictions, or no relevant prior convictions, or else both those two features in common.  In this matter Mr Adams was not producing the cannabis solely for his own use, and he does have a relevant prior conviction. 

 

He may complain that the learned Judge referred to the matter of R v. Ball (CA No 250 of 1999, judgment delivered 8th October 1999) in which that successful applicant had a sentence of 18 months imprisonment to be suspended after six months, reduced on appeal to a sentence actually less than Mr Adams, namely 12 months to be suspended after Mr Ball had served three months.

 

In that matter, Mr Ball was considered by the Court to have been producing the 12 growing cannabis plants found at his home (with a net weight of six kilos and expected to yield two kilograms of dried cannabis) for a commercial purpose. 

 

Mr Ball was also discovered to be in possession of five clip-seal bags each containing dried cannabis leaf to a weight of 450 grams.  However, although Mr Ball, unlike Mr Adams, was considered to have had a commercial purpose in his cannabis production, Mr Ball had no relevant prior history.

 

Given the fact that Mr Adams had demonstrated a good employment history, and had demonstrated in his submissions on sentence past financial assistance to his elderly parent, and had demonstrated that he had become cannabis free at the time of sentence, he was entitled to some leniency in the sentence to be imposed.  This makes the 5 year suspended term of 8 months imprisonment appear manifestly excessive when compared to previous sentences for non-commercial growers.  None had a sentence imposed of anything like that duration.

 

However, given also the fact of his prior suspended sentence, albeit imposed seven years ago, and given the intent to distribute in excess of two pounds of cannabis sativa to three other persons as described in his own counsel's submissions on sentence, I consider that in these circumstances where four months imprisonment has actually been served, that a sentence of imprisonment of the length, namely four months, would be and was a sound exercise of the sentencing discretion.

 

Accordingly I would allow the appeal to the extent of substituting a sentence of four months imprisonment for the sentence of 12 months imprisonment originally imposed.

 

THE PRESIDENT:  I agree.

 

CULLINANE J:  I also agree.

 

THE PRESIDENT:  The order is, the application for leave to appeal is granted, the appeal is allowed.  The sentence imposed at first instance is set aside, and instead a sentence of four months imprisonment is imposed.  It is noted that the applicant has already served that term of imprisonment.

 

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Editorial Notes

  • Published Case Name:

    R v Adams

  • Shortened Case Name:

    R v Adams

  • MNC:

    [2003] QCA 22

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Jerrard JA, Cullinane J

  • Date:

    05 Feb 2003

Litigation History

No Litigation History

Appeal Status

No Status