The Queen v Ball[1999] QCA 427

COURT OF APPEAL

McPHERSON JA

DAVIES JA

JONES J

CA No 250 of 1999

THE QUEEN

v.

COLIN JAMES BALL

(Applicant)Appellant

BRISBANE

DATE 08/10/99

JUDGMENT

JONES J:  Colin James Ball appeals against the sentence imposed on him in respect of his conviction for two offences;  unlawful production of the dangerous drug, cannabis sativa and possession of the dangerous drug, cannabis sativa.  In each case the quantity of the drug exceeded 500 grams.  He was sentenced to 18 months imprisonment to be suspended after six months with an operational period of three years.  The ground of appeal is that the sentence was manifestly excessive.

The drugs were found in the appellant's home in suburban Brisbane by police on 30 December 1998.  When first apprehended the appellant denied having any drugs on his premises.  A search of his back yard however revealed 12 growing cannabis plants varying in height from 40 centimetres to 1.2 metres.  These were noted to have a weight of six kilograms.  In the opinion of Detective Sergeant Carnes these plants would have yielded two kilograms of dried cannabis. 

Inside a locked bar fridge in the residence the police discovered five clipseal bags each containing dried cannabis leaf to a weight of 450 grams - the imperial equivalent being one pound which is the term used in transactions in respect of this drug.  A further small quantity was found in a swimming pool scoop.  The total quantity of the drugs and the manner in which it was packaged was highly suggestive of a commercial element. 

The learned sentencing Judge was entitled to infer as he did that the appellant was growing the plant partly for his own use and partly for some commercial motive - the latter being for sale or for sharing.  But His Honour was not entitled to find that by sharing that the purpose was "commercial".  In this sense he fell into error and because of that it is necessary for this Court to consider the sentence again.  His Honour did not accept explanations given on the appellant's instructions as to how the drug came into his possession. 

On all the evidence adduced at the sentencing hearing I myself would be prepared to conclude that there was a commercial purpose. Accepting the classification terminology used in The Queen v. Applewaite I would note that the planting was small in terms of the number of plant.  The plants were arranged so as to be less readily detected but the operation was not in any sense sophisticated nor capable of producing a large quantity of the drugs.

Counsel on behalf of the appellant argues that even allowing for a commercial element as found by His Honour, and now as found by myself, the circumstances call for a non-custodial penalty or a wholly suspended sentence.  He points also to the fact that the applicant used the drug in relief of a painful shoulder condition which he had suffered for over ten years. 

The applicant has no relevant prior criminal history, has a good work record and family background.  He gave early notice of an intention to plead guilty.  These latter features no doubt influenced His Honour as it would  influence me to partially suspend the sentence.

Taking into account the comparative decisions referred to by counsel I have come to the view that the appropriate sentence in this case would be a period of imprisonment for 12 months to be suspended after serving a period of three months' imprisonment.  I would impose an operational period for the suspended sentence of three years.  In those circumstances I would allow the appeal and make orders in those terms.

McPHERSON JA:  I agree.  Specifically what the learned sentencing Judge said was:  "You were growing this plant partly for your own use and partly for some commercial motive, be it to sell to people or to share it with your friends." 

"Sharing with friends" does not seem to me to be capable of being regarded as a commercial purpose, or the product of a commercial motive; at least, there is nothing in the evidence that I can see that would justify such a conclusion in this case. 

It nevertheless seems to me that, as has been said by Jones J, the commercial purpose is properly to be inferred in this case.  For that reason, I agree with His Honour's reasons on that point and with respect to the sentence which should be substituted on this appeal.

DAVIES JA:  I also agree with the reasons and the orders proposed by Justice Jones and the further remarks of the presiding Judge.

McPHERSON JA:  The orders will be as they have been stated by Justice Jones.