The Queen v Tindel[1997] QCA 293

COURT OF APPEAL

McPHERSON JA

SHEPHERDSON J

WHITE J

CA No 265 of 1997

THE QUEEN

v.

DARRELL LESLIE TINDEL Applicant

BRISBANE

DATE 07/08/97

JUDGMENT

McPHERSON JA:  The applicant was convicted in the Circuit Court at Bundaberg and sentenced to imprisonment for 12 years, with a parole recommendation after four years, for carrying on the business of unlawfully trafficking in cannabis sativa. 

In effect the offence arose out of growing and producing cannabis on a large scale.  No fewer than five different properties were used for planting cannabis.  One of them was the property of the applicant's co-offender Grima.  The other four were family properties of other persons in the general area in which this activity was taking place.  The applicant and his co-offender also enlisted assistance in the enterprise from the sons of the applicant and the co-offender Grima.

The operation was conducted on a large scale. The growing of the cannabis extended over some three and a half years viewing the matter as an enterprise or project.  The turnover from the business is said to have been approximately $2 million, which was to be shared equally between the applicant and Grima.  Money in an amount of some $1.3 million was transferred to an offshore bank with headquarters in Malta and, despite the later efforts of the applicant to retrieve it, it is believed now not to be recoverable.

The applicant, in the course of these activities, used explicit or implicit threats of physical violence, and in one instance applied financial pressure by means of a debt owing to him, to induce owners of properties to join in the scheme. 

In the case of the first property, the owner of it owed money to the applicant and that indebtedness was used to force him to join in the operation, as well as a threat that unpleasant consequences would follow if that person did not participate in the project.

The second property belonged to the co-offender Grima, on which a crop worth about half a million dollars was grown. 

In the case of the third property, the applicant arranged with the owner to plant a crop of corn, but instead grew cannabis.  Again, financial inducements and threats of physical violence were brought to bear on the owner in order to make him comply with the applicant's plans.

In the case of the fourth property the plant was grown without the knowledge of the land owner.  When the owner discovered it, he was warned he would be shot.  A little later the applicant and three others assaulted him, and left him lying half-conscious.  Further threats were then made against him and members of his family.

The owner of the fifth property was brought into the venture by being provided with funds to grow crops, or with the promise of a share of the money that would result.

The applicant is 48 years of age and, it must be noticed, has no previous convictions of any kind.  His motivation in engaging in the trafficking seems to have been simply monetary greed.  The principal matter going in mitigation has been the applicant's extensive cooperation with the police and his early plea of guilty to an ex officio indictment.  There is no doubt that this is a factor that weighs heavily in his favour.

The learned sentencing Judge regarded R. v. Grkovic (CA No 323 of 1989) as providing a sentencing base line from which to begin the sentencing of the applicant.  The sentence imposed there was 12 years and 10 months for a plantation that was smaller in size and less productive financially than that undertaken here.  In addition, the plantation in Grkovic's case was cultivated over a somewhat shorter period.

The applicant before us has relied, in particular, on the case of Cacopardo, in which this Court had to consider both an application for leave by the offender to appeal against sentence and an application by the Attorney-General to have the sentence increased.  In the course of his sentencing remarks, Davies J.A. said that the sentences imposed in that case were within the limits of a proper sentencing discretion.

However, in my view, the applicant's reliance on that decision as being a decisive authority in his favour in relation to the present application is misplaced.  Apart from the fact that the Court did not interfere with the sentence in that case, it differs from the present in that it lacks the features prominent here of threats and inducements that were used by the applicant to extend the range and duration of his plantation empire.

As I have already said, he drew into the illegal activity a number of individuals or families who had had no previous connection with this type of offence.  He did so by means of conduct which is abhorrent to all of us and which has had, it may be seen, disastrous consequences for those involved.  One of them later received a four year sentence; another a three year sentence; and yet another, who was, I think, the land owner involved in the fifth of the plantations I have referred to, was sentenced to a term of eight years' imprisonment.

It is right, as I have already mentioned, that in this case there should be a substantial discounting of the head sentence to take account of the cooperation and early plea of the applicant.  However, the learned sentencing Judge did, in my view, make an appropriate adjustment on that account by recommending parole after the applicant had served one-third of the head sentence.  Expressed in another way, the allowance made on that account involved an effective reduction of the pre-parole period by about one-third.

Preying on and threatening financially desperate people is conduct that ought as a matter of sentencing policy to be deterred as much as possible.  In view of the extent and duration of the offence, and the pressures that were used to compel other apparently law-abiding land owners to become parties to the enterprise, it seems to me that that particular feature distinguishes this case from some of the others that were referred to before us.  In these circumstances, I am unable to regard the head sentence as manifestly excessive or outside the range of a proper sentencing discretion.  I would, therefore, dismiss the application for leave to appeal.

SHEPHERDSON J:  I agree.

WHITE J:  I agree also.  The aggravating features here are the number of plantations involving others who would, it may be assumed, not have turned to unlawful conduct but for the applicant and his colleagues and also the serious threats of violence and actual violence when they did not wish to cooperate.

Particularly the threats of and the actual violence make this a much worse case than Cacopardo which was strongly relied upon by Mr Rafter for the applicant.

McPHERSON JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.