The Queen v Tarabay[1998] QCA 317

COURT OF APPEAL

PINCUS JA

McPHERSON JA

AMBROSE J

CA No 107 of 1998

THE QUEEN

v.

RONNIE ROZARE TARABAY  (Applicant)

BRISBANE

DATE 29/05/98

JUDGMENT

PINCUS JA: The applicant was convicted in the Supreme Court of three offences relating to cannabis, one of production of cannabis in excess of 500 grams, one of possession of cannabis in excess of 500 grams and one of possession of things used in connection with the commission of a drug offence. He is 24 years of age and the learned primary judge sentenced the applicant to two years and six months imprisonment suspended after six months. His criminal history does not include any drug offences, nor has he on any previous occasion been sentenced to a period of actual custody. There appears to have been a burst of criminality in 1992. Nearly all his offences were committed in that year. I shall return to that topic. 

According to the information placed before the primary judge, the applicant took a six month lease on a house for the purpose of establishing a marijuana growing operation there and did so.  The police found 36 plants growing in a hydroponic system and 43 growing in pots. The total weight of the cannabis and plant material found was over six kilograms and the prosecutor told the judge that the total included some roots. The analyst said there was about 253 grams of green plant material and that was described as material which had been harvested, some of which was at least partially dried. There was no evidence of the finding of any bags for selling marijuana, but the operation included, in addition to the hydroponic equipment, what the judge described as extensive lighting equipment. There were also transformers, fans, pumps, drums, bags and cartons. We have seen the equipment depicted in the exhibits. The judge remarked, "It is difficult to believe that this was for your own use, particularly as you were not addicted to it. That is, you only were a very casual user, at best, of cannabis." Counsel for the applicant criticises that last statement as being inaccurate. 

A slightly unusual feature of the case is that the prosecutor below suggested that there be a suspended sentence in the order of one to two years and accepted that the marijuana was grown for personal use, which was the applicant's version of his purpose given to the police; however the judge was not prepared to act on either of these concessions. His Honour was told by counsel for the defence below that the applicant did not regard himself as being addicted, but used cannabis recreationally to relieve stress. There was no specific indication as to the extent of the applicant's use and it is not clear what it was that justified the judge's statement that the applicant was "only a very casual user, at best, of cannabis". However, it appears to me that he would have had to be a very heavy user to require, for his own use, the quantities of cannabis which he was producing.

To come back briefly to the applicant's criminal record, there were as I have said, no previous drug offences apart from some minor street offences. There was an assault attracting a fine in 1992 and in the same year a breaking, entering and stealing offence and offences of opening false bank accounts, none of which produced an actual custodial sentence. There was however imposed in 1995 a sentence of six months imprisonment, suspended for 12 months, for failing to carry out a community service order.

The judge said in his remarks on sentence that the applicant's criminal history showed the appliant had in the past shown little regard for the law. This is true in a sense, but as I have noted, nearly all the offences mentioned were committed over a short period in 1992. The applicant does not, in my view, fall into the category of a person who has shown persistent and serious defiance of the law. In the present case he pleaded guilty to an ex-officio indictment, was said to have co-operated with the police and as I have mentioned, had never been sent to prison before.

The difficulty about the case is that, although remarks the judge made during the sentencing hearing clearly implied scepticism about the purpose of production of cannabis, his Honour did not warn the applicant that he had in mind to sentence on the basis of rejection of that view. Our attention has been drawn to the conclusion of the hearing on the first day on which the matter was discussed; that was 19 March 1998, when the Crown was asked whether it was accepted that the cannabis was grown for personal use. The answer was, "Well yes, we-----" and then the answer is cut off.  The judge said, "There was no commercial element involved at all?" and the prosecutor said, "We don't contend otherwise". The judge considered the matter until the next day, on which he, in effect, found contrary to the Crown's concession that there was a commercial purpose and imposed a custodial sentence, as I have mentioned, of two and a half years imprisonment, suspended after six months.

The principal contention advanced on behalf of the applicant is simply that there was evidence - some has been mentioned - which could have been called, had the Crown taken an issue about the purpose of the growing of the cannabis. It is argued by Mr Chowdhury, on behalf of the respondent, and appears to me to be correct, that there seems to be a great deal of cannabis there, if it is all for the use of one person. To which Mr Martin replies - and again I think correctly - that it is possible that, despite the appearances shown in the photographs, the judge might have been persuaded, on evidence given, that the large amount of cannabis which was likely to be produced was for personal use.

The contention that, due to perhaps a slip on the part of the primary judge, the applicant might well feel that he has not had a completely fair hearing, seems to me to have some substance. I would go further and say that in this instance the judge should have, before proceeding to sentence, clearly indicated to the defence that he did not propose to accept either of the Crown's admissions and told them that he proposed to make a finding of commercial growing unless he was satisfied by evidence not to do so. His Honour did not take that course. Further, Mr Martin points out that his Honour threw doubt upon what was said about the lease, suggesting that perhaps there was an option and saying, in effect, that the amount of rent payable could have been relevant. Those are matters upon which evidence plainly could have been called.

The difficulty which the Court is placed in seems to be this, that although there is an improbability about the proposition put forward on behalf of the applicant below and here, namely that all this cannabis growing, on a significant scale, was for personal use, one could not say that that is an impossible proposition and could not have been accepted, or at least that the judge might not, after evidence, have reached the position that he was not satisfied with the Crown assertion.

The Crown, however (and I suppose one must say very properly), does not wish to have the matter sent back for a re-hearing, because as Mr Chowdhury says, he does not want the Crown to speak with two voices. Short of a re-hearing, the Crown says now, through Mr Chowdhury, that what we should do is to decide the matter for ourselves and find that his Honour's view was correct and that we are satisfied of the proposition which the Crown now advances. I cannot for myself see that that would be a proper course, because it would involve our committing the very error which was committed below and that is making a finding without the defence having an opportunity to contest, by evidence, the critical proposition.

Mr Martin suggests that in these circumstances the only course for us to adopt is to impose the sentence which was suggested by the counsel below and that is a sentence which matches that, or has the same character as that, which was imposed on people called Williamson and Lines, a case which came before the learned primary judge shortly before this one. It appears from the judge's report that in that case sentences were imposed of two years imprisonment suspended for five years, plus three years probation, with certain conditions.

In the present case I see no reason why there should be an order for probation. In view of the fact that the suggestion made by Mr Martin is not really contested by Mr Chowdhury (assuming against him that we are not prepared to find commercial use) I would simply, without discussing the appropriateness of the Williamson and Lines sentence, impose the same sentence in the present case. To put that more shortly, I think that the Court is forced to impose a sentence on a non-commercial basis because of the nature of the hearing below and because the Crown does not feel it can ask for a re-hearing.

The orders which I would therefore propose are: application granted, appeal allowed, sentences imposed below set aside and in lieu, in respect of each offence, there will be a sentence of two years imprisonment suspended for five years, that is, five years will be the operational period and the sentence will be suspended forthwith.

McPHERSON JA: I agree with what Mr Justice Pincus has said.

AMBROSE J: I agree.

PINCUS JA: Anything further you want to add as to the form of the order, either counsel?

MR CHOWDHURY: Not from me, thank you, Your Honour.

MR MARTIN: No, thank you, Your Honour.

AMBROSE J: There's nothing about forfeiture of equipment and so on, is there?

MR MARTIN: I think it was discussed below and I don't think Mr Pointing asked for it but it just went away.

AMBROSE J: Well, you're not asking for anything that wasn't asked for below I take it?

MR CHOWDHURY: No, it wasn't asked below and I don't seek to do it now.

PINCUS JA: Very well. That will be the order as I have indicated.