The Queen v Ryan[1997] QCA 195

COURT OF APPEAL

DEMACK J

MACKENZIE J

HELMAN J

CA No 550 of 1996

THE QUEEN

v.

ERIC BARRY RYAN Applicant

BRISBANE

20/06/97

JUDGMENT

DEMACK J:  Yes.  Mr Justice Mackenzie will deliver the first reasons.

MACKENZIE J:  The applicant pleaded guilty to three drug offences.  Count 1 was aggravated possession of cannabis sativa.  Police found 114 plants between 5 and 50 centimetres in height which were being grown hydroponically in a shipping container in a rented shed.

Count 2 was possession of about 100 grams of cannabis found at the applicant's residential unit.  Count 3 was possession of equipment used in connection with the production of cannabis.

On counts 1 and 3 the applicant was sentenced to 18 months imprisonment suspended after three months with an operational period of three years.  On count 2 he was placed on probation for three years and ordered to serve 240 hours community service.

The applicant who was 25 when sentenced was a self-confessed heavy user of cannabis.  The question whether the cannabis was being grown for personal use or whether there was some commercial element was the focal point of the sentencing process.

The learned sentencing Judge heard evidence from the applicant on the subject and in the end would not accept his evidence that it was for personal use.  He said that it seemed to him in all probability he was growing it partly for his own use and partly for sale.  That finding was not challenged and it seems to me that that is ample evidence to think that the learned sentencing Judge was correct in so finding.

I should also mention, since it was traversed in argument, that in that sense the plea of guilty was one where there was a contested element and the contest was as to the critical factor relating to the level of sentence to be imposed. 

The applicant submitted that the learned trial Judge had erred in principle by misleading himself as to the proper level of sentencing by relying on decisions of Graham, Court of Criminal Appeal numbers 51 and 52 of 1987 and Schwob, Court of Appeal number 173 of 1995.

Both the Crown and the applicant referred to Applewaite and Jones Court of Appeal 433 and 434 of 1996 and in particular the joint Judgment of McPherson Justice of Appeal and Mr Justice Thomas where they catalogued the main factors influencing the level of sentence in cases of commercial production of cannabis. 

The learned sentencing Judge found that there was an element of commercial gain as well as personal use.  The size of the crop and potential for profit were by no means at the high end of the scale of such enterprises.  However, the operation involved planning and the premises had to be hired and the system set up. The crop was being grown in a container which was airconditioned and served by a lighting system. While the operation was not a large-scale operation as compared with some commercial operations it was not amateurish and was relatively sophisticated having regard to the expertise needed to grow the cannabis in the way in which it was grown.  The offender was the person responsible for setting it up on his admissions. 

The precise period over which the crop was grown is not clear but the dates alleged in the indictment covered a period of over three months.  I have previously referred to the size of the plants.  The applicant had no criminal history and subject to what I have said about the contested element of the plea indicated at a timely time that he intended to plead guilty. 

It may be noted that Applewaite was sentenced to 18 months imprisonment and Jones, who had a worse criminal history, to two years imprisonment in respect of about 550 seedlings in starter pots and a cultivated area in a bush camp.  The seedlings were small at the time of the discovery of the plot and no recommendation for early release was made in their cases.

In Schwob, the applicant who had a significant criminal history but who had no prior drug offences had an effective sentence of two years with a recommendation for release on parole after nine months reduced to 12 months.  The recommendation for parole was deleted with the effect that he would have been eligible for parole after six months.  In that case there were 12 cannabis plants and evidence of commercial activity.

In Graham there were two offenders.  The less serious offender had a sentence of three and a half years quashed and a sentence of two years imprisonment substituted.  In that case there was a sophisticated underground nursery or hothouse in which 145 cannabis plants of a more advanced stage than the present plants were growing in pots.  Like the applicant's crop they were serviced by an airconditioner and artificial lighting together with a watering system.  One hundred and eighteen seedlings were found growing in pots in another location and it was admitted that Graham had been growing cannabis for over a year. 

The submission essentially was that the learned sentencing Judge had constrained the exercise of his discretion by reference to those cases.  It is undoubtedly true, as Mr Glynn has said, that there are features in both of those cases which are different from the present case.  On the other hand there can be no doubt that a detailed examination of authorities relating to commercial production of cannabis can demonstrate a wide variety of outcomes.  The applicant's basic submission was that in imposing the sentence of 18 months suspended after three months the learned sentencing Judge had misled himself and while, as I have said, there are distinctions to be drawn between the cases and the present case, they are at the end of the day simply examples which serve to indicate appropriate limits within which sentencing discretions should be exercised.

The difficulty with the additional submission which Mr Glynn frankly put to us to the effect that this was not a case in which a custodial sentence, even if fully suspended, should have been given is that the pattern of sentencing, in my view, in cases involving commercial enterprises of this kind does not demonstrate that there is any such rule which must be applied inflexibly.  In my view the sentence of 18 months imprisonment as a head sentence for this kind of offence having regard to the findings of the learned sentencing Judge was within range and in my view it was also within range to require the applicant to serve a short period of that in actual custody.

I would refuse leave to appeal and order that a warrant issue for the apprehension of the applicant to lie in the registry for seven days.

DEMACK J:  The applicant was let out on bail, was he?

MR GLYNN:  He was, Your Honour, yes.

DEMACK J:  Yes, I agree.

HELMAN J:  I agree.

DEMACK J:  Now the orders of the Court will be those proposed by Mr Justice Mackenzie.