The Queen v Roulstone[1998] QCA 324

COURT OF APPEAL

McMURDO P

McPHERSON JA

SHEPHERDSON J

CA No 254 of 1998

THE QUEEN

v.

BRUCE EDWARD ROULSTONE Applicant

BRISBANE

DATE 18/09/98

JUDGMENT

THE PRESIDENT:  Mr Justice Shepherdson will give the first judgment of the Court.

SHEPHERDSON J:  On 9 July 1998 in the Supreme Court at Cairns the applicant was convicted of three charges brought under the Drugs Misuse Act.  In summary they were first of unlawful production of the dangerous drug, cannabis sativa, with a circumstance of aggravation namely that the quantity of the drug exceeded the quantity specified in schedule 3 of the Drugs Misuse Regulation 1987 in respect of that drug; secondly, of possession of a number of specified items used in connection with the unlawful production of the cannabis sativa; and thirdly, of unlawfully having possession of cannabis sativa the quantity of which exceeded the quantity specified in the third schedule of the Drugs Misuse Regulation in respect of cannabis sativa.

The applicant was convicted after trial before a Judge and jury.  On 10 July 1998 he was sentenced to three years imprisonment, the learned sentencing Judge dealing with all the offences collectively because, as he said, they all related to the undertaking of producing the cannabis sativa.

The applicant seeks leave to appeal against the sentence imposed on the ground that it was manifestly excessive. 

Mr Rafter, who is counsel in this Court, recognises that a custodial sentence was inevitable but submits that the sentence of three years imprisonment without early parole or suspension was excessive in the circumstances in which the offences were committed, those circumstances being said to involve a mixture of community use and a commercial element.

All the offences were committed at Walsh River which I understand is in the Herberton area.  The applicant resided at Walsh River and the cannabis sativa involved in the production consisted of 80 mature plants up to more than 6 feet high and 63 seedlings.

The plants were in various locations, were irrigated and a bush camp had been constructed.  The crops were surrounded by mesh in order to deter rodents and marsupials.  In the camp police found two rifles and a revolver, all of which were capable of being loaded within seconds, the magazines being already filled.

His Honour concluded that the applicant had been engaging in the production for "some months at least if not longer."  He was satisfied that the camp had been camouflaged although he said the operation fell within the "farm type production," and "not the large acreage commercial production." 

His Honour said it showed a "level of activity and contribution by way of money and effort towards the production process."  He described the production as being "of a significant quantity."  His Honour recognised that although the plantation might have been for the use of "those few residents who lived in that small community in the upper regions of the Walsh River" he concluded "there's an investment in this activity which bespeaks it having a commercial intent."

He decided the applicant would be seeking a return from his investment by sale of the cannabis sativa.  His Honour recognised that the applicant lived in modest circumstances with a modest lifestyle and concluded that in addition to the small community in which the applicant lived using the product there was also a commercial element.

The applicant was born on 8 June 1967 and was therefore 31 years old at the time of his trial and sentence.  He had a criminal history.  At the age of 17 he first appeared in the Magistrates Court on a charge of breaking and entering a dwelling house with intent for which he was given 18 months probation and ordered to perform 80 hours unpaid community service.

He had a number of drug related offences.  His Honour mentioned these.  On 29 May 1987 he appeared in the Atherton Magistrates Court on one count of producing a dangerous drug, one of possession of a dangerous drug, one of possession of a thing used in connection with smoking a dangerous drug, one of making a false statement and one of stealing.

On each of these charges he was convicted and fined.  On 11 September 1987 on one count of receiving, one of breaking and entering a dwelling house with intent and one of false pretences (all these offences were committed before 29 May 1987) he was convicted and sentenced to one months imprisonment and ordered to pay restitution.

On 13 September 1987 in the Herberton Magistrates Court he was convicted of a charge of possession of a pipe used in connection with smoking a dangerous drug and sentenced to five days imprisonment.  That offence was committed on 25 June 1987.  On 27 January 1994 in the Cardwell Magistrates Court he was convicted on one count of possession of a dangerous drug, and on the same day in the Tully Magistrates Court he was convicted of a similar offence.

Both these latter offences were committed on 6 January 1994.  The learned sentencing Judge correctly noted the applicant had a continuing association with the drug, cannabis sativa.  His Honour appears not to have recorded a conviction.  This Court has been referred to a number of decisions of the Queensland Court of Appeal dealing with the production of the dangerous drug, cannabis sativa, with circumstances of aggravation.

These include The Queen versus McKay (CA 574 of 1996) and The Queen versus Applewaite and Jones (CA 433 and 434 of 1996).  Those cases on their facts are, in my view, distinguishable from the present case.  The applicant's submissions do not concede that the sentence imposed was within the range of sentences appropriate to these offences of which the applicant was found guilty on the previous day.

Mr Rafter submitted the three years imposed should be reduced to two years or the grant of an early recommendation for parole. 

On my consideration of the matter the applicant has failed to satisfy me that there has been any error in the exercise of the sentencing discretion, and that the sentence imposed is manifestly excessive.  His counsel seeks either suspension of some or all of the sentence or, as I have said, a recommendation of eligibility for parole.

In my view this is a case in which the learned sentencing Judge was entitled not to suspend any portion of the sentence, and furthermore was not obliged to make an early recommendation for parole.  This applicant had chosen to plead not guilty and put the community to the expense of a trial. 

This applicant, in my view, could not have hoped to have obtained any benefit under section 13 of the Penalties and Sentences Act as that section did not apply to him.  I would dismiss the application.

THE PRESIDENT:  After hearing the submissions of counsel today and reviewing comparable sentences, had I been the sentencing Judge I would have been inclined to impose a slightly lower sentence than that imposed here.  The sentence of three years imprisonment, however, cannot be said to be manifestly excessive and is within the range of a sound sentencing discretion, although perhaps towards the upper end of that range in all the circumstances.

The applicant has a significant and relevant criminal history and, having gone to trial, gained no credit for a timely plea of guilty. 

In my view it is not a case where a recommendation for parole is appropriate.  I agree with the reasons and the order proposed by Mr Justice Shepherdson.

McPHERSON JA:  I agree with what has been said by both other members of the Court and with the order proposed.

THE PRESIDENT:  The application for leave to appeal against sentence is refused.