SUPREME COURT OF QUEENSLAND

1. PINCUS JA and ATKINSON J:   The appellant was indicted on two counts, one of having unlawfully produced cannabis sativa and the other of having unlawfully had possession of that drug.  The Crown alleged that the appellant was growing a marijuana crop;  there were said to be 130 plants, including many seedlings;  the defence did not accept that there were so many.  After a trial, he was acquitted of the first count and convicted on the second.  There is a notice of appeal against both conviction and sentence, but the only ground given is that "[i]n all the circumstances of the case, the sentence was manifestly excessive".  It is clear from the appellant's submissions that the intention is to challenge the conviction, as well as the sentence.

2. It is said in one submission that s 57 of the Drugs Misuse Act 1986 is for various reasons invalid;  it does not appear to us that that submission has any substance.  Then the argument is advanced that photographs taken by the police were not a true depiction of the site in question.  The appellant has argued that counsel should have insisted on a view of the site, should have called the appellant's mother, should have reserved a question for an appellate court (being the supposed invalidity of s 57 of the Drugs Misuse Act 1986), failed to apply the Anti-Discrimination Act 1991 (Qld) and made other, similar errors;  nothing has been placed before the Court to suggest that these assertions have any substance.  The real point of the appeal is that s 57 of the Drugs Misuse Act 1986 was not, on the evidence, properly applicable.  The relevant provision is s 57(c):

"In respect of a charge against a person of having committed an offence defined in part 2 –

...

3. proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person's possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place".

Marijuana plants were found on certain land.  The Crown case that the appellant was the occupier of or concerned in the management or control of that land was based in part upon an allegation that he had an agreement with a company called Kippin Investments Pty Ltd, under which he was given possession of the land.  This agreement was not disputed, but the appellant gave evidence that the area where the cannabis plants were located was beyond the boundary of the land which was the subject of the agreement with Kippin Investments Pty Ltd.  His case was that the  marijuana crop was on the edge of his property, unknown to him.

3. There were however indications that the cultivation of the crop had a connection with the occupation of land which was undoubtedly possessed by the appellant. One was that there was a water pipe laid from a tank on the appellant's property in the direction of the marijuana crop and the Crown relied on that as showing that the appellant's water had been used to irrigate the crop.

4. The appellant made an affidavit putting forward new evidence in the appeal to which was annexed, as an exhibit, a map intended to show that the boundary of the land did not extend to the area in which the marijuana crop was found. The plan shows the boundary as being a dry creek. So far from being helpful to the appellant's case, the proposed new evidence appears to us destructive of it. That is so because his case was that his boundary did not extend to the dry creek bed but was short of it, the implication being that the cannabis was grown outside the boundary. The plan appears to be inconsistent with that case.

5. There were other circumstances disclosed by the evidence which tended to connect the person in possession of the property the subject of the agreement with Kippin Investments Pty Ltd with the marijuana crop. There was a large number of plants, many of them of substantial height, fairly close to the residence on the property and the property had been slashed or mowed close to the house, with the exception of an area around the crop which helped to disguise its presence.

6. In our opinion the jury was entitled to take the view that the Crown case succeeded under s 57(c) of the Drugs Misuse Act 1986 and the appeal against conviction should be dismissed.

7. There is also a challenge to the sentence. The judge sentenced the appellant, a man aged 38 years, to two years imprisonment. The appellant had previous minor convictions in relation to cannabis, but they were fairly old, dating back to 1983 and 1984. In each case a fine was imposed.

8. Counsel for the appellant (said not to be a user of cannabis) below told the judge that the appellant had been seeing a psychiatrist for some months and the doctor's opinion was stated to be that the appellant had a "delusional disorder of the paranoid type". The judge took that into account in fixing the sentence. In Ryan (CA No 550 of 1996, 20 June 1997), the plantation appears to have been of similar size.  The convictions were of possession only, but it seems clear from the reasons of Mackenzie J that sentencing was approached on the basis that the cannabis was being grown by Ryan himself.  The finding was that it was grown partly for Ryan's own use and partly for sale.  The sentence was 18 months suspended after 3 months.  That makes the present sentence seem rather high. 

9. In Boyle (CA No 203 of 1995, 30 July 1995), also relied on by the Crown, the applicant had a criminal record, which while of no great significance was not ignored.  The applicant and another man were involved as couriers in the transport of 23½ kgs of cannabis from Cairns to Brisbane.  The sentence was three years imprisonment and that was upheld.  Although there was a plea of guilty the case, again, suggests that the present sentence is a substantial one.  Clarke (CA No 38 of 1995, 16 March 1995), was a case in which a bag of cannabis weighing 1.2 kg and a bag of seeds weighing 9.5 grams were found in the applicant's home;  he was sentenced on the footing that he had possession of 1.2 kg to facilitate its disposition by someone else.  The applicant was sentenced to 18 months imprisonment wholly suspended.  The circumstances do not appear to us to have been sufficiently similar to those in the present case to make Clarke a useful comparison, but it certainly gives no support to this sentence.

10. Although there was no plea of guilty in the present case, it has to be kept in mind that the jury was not satisfied that the applicant produced the cannabis. That may have been a charitable view of the matter, but the learned primary judge had to sentence the appellant for possession on the basis on which that count was placed before the jury, namely under s 57(c). His Honour sentenced the appellant substantially by reference to Boyle's sentence, already mentioned, and took into account that Boyle's case was worse than the appellant's.  An important difference between the two cases is that Boyle's possession was part of a process of large-scale commercial distribution of marijuana – said to be worth $120,000 wholesale.  Boyle was thoroughly in the marijuana trade;  that was not proved to be so in the appellant's case, although the judge inferred, reasonably enough, that the marijuana was destined for use by someone in commerce.

11. In our opinion, having regard to the useful schedule of sentences for possession of cannabis produced by the Crown and to the sentences in Boyle's case and Ryan's case the sentence imposed on the appellant appears to have been excessive; we take into account in his favour the apparently reliable information that he has significant psychiatric difficulties.

12. Conclusion

We would dismiss the appeal against conviction, grant leave to appeal against sentence and allow the appeal against sentence by reducing the sentence of two years imposed to a sentence of 15 months.

13. CHESTERMAN J:  I agree with Pincus JA and Atkinson J that there is no substance in the appellant’s arguments against his conviction and that his appeal should therefore be dismissed.  Similarly I can see no merit in his application for leave to appeal against sentence. 

14. The applicant was no callow youth. He was 38 years of age though, it must be conceded, without an appreciable criminal history. His two prior convictions for possessing cannabis should properly be disregarded. They were very old and would appear to involve small amounts of the drug for personal use.

15. The cannabis in the applicant’s possession was a substantial quantity and formed a carefully tended plantation comprising four separate plots concealed from the passer-by. Altogether there were 130 plants, 78 of which were mature being up to one metre in height. The weight of 60 of these plants slightly exceeded 13½ kilograms. The other 52 plants were seedlings the weight of which exceeded ½ a kilogram.

16. A person may be convicted of possessing cannabis in circumstances where the drug was in a place occupied or controlled by that person who does no more than have reason to suspect that the drug was in that place. See s 57(c) of the Drugs Misuse Act 1986.  The facts which led to the applicant’s conviction make it plain, in my opinion, that the applicant did more than have reason to suspect the drugs were being cultivated on property he leased or adjacent to property he leased.  The applicant was in actual possession of the cannabis plantation.  It was on that basis that the trial judge sentenced him and it is, with respect, the only sensible view of the case. 

17. The applicant’s offence is a serious example of possessing cannabis. The drug was in a living form in which it would naturally increase and regenerate. The crop was grown for profit.

18. The applicant was convicted after a trial. He was not entitled to any discount for a plea of guilty.

19. The applicant gave evidence during the course of which he denied consuming cannabis. In submissions on penalty his counsel did not advance any contrary position. During the argument the trial judge commented:

“But the important aspect of the case is that once in possession of this quantity, I can only conclude from his evidence that it was for a commercial purpose and that is the point which really dictates the penalty . . .”

The trial judge was, with respect, clearly right.  The sentence had to be approached on the basis that the applicant was in possession of a cultivated plantation comprising a large number of plants and a substantial weight of the drug for a commercial purpose.

20. In passing sentence the learned judge, having referred to the circumstances of the offence and the applicant’s mental health (which I shall mention later) said:

“. . . with your age and your maturity you ought also to have been aware of the seriousness of your conduct.  Having possession of drugs for a commercial purpose – and in this quantity – must attract a custodial penalty. 

The Crown prosecutor has referred me to two cases.  One case of Ryan in which there were extenuating circumstances which do not apply in your case . . . penalty was 18 months but with the recommendation for early release.  The other one of Boyle which I regard as somewhat more serious conduct . . . was sentenced to three years’ imprisonment, so the range is fairly clearly set.  . . . you have taken your matter to trial and there are no redeeming features . . . in your conduct . . .”

21. The schedule of penalties imposed for possessing cannabis supplied by counsel for the respondent is not particularly helpful because there is only one truly comparable case. No doubt this is because the facts proved in the applicant’s case would ordinarily result in a conviction for producing cannabis but, as Pincus JA has noted, the jury appears to have taken a charitable view of the applicant’s activities.

22. I can see only four cases in the schedule that provide any assistance. The smallness of their number and the incomparability of circumstances means that there is no clearly delineated range of sentences for the offence constituted by possessing a cannabis plantation.

23. Clarke (CA No 38 of 1995, 16 March 1995) was a 32 year old man with prior convictions for drug and other offences.  He was found in possession of 1.2 kilograms of cannabis which he had hidden in his bedroom.  He also had possession of a small quantity of cannabis seeds.  He was sentenced on the basis that he had the drug in order to facilitate its disposition by others.  He accepted possession knowing that the drug was to be sold.  He was sentenced to eighteen months imprisonment, wholly suspended.

24. Ryan (CA No 550 of 1996, 20 June 1997) was sentenced to eighteen months imprisonment suspended after three months.  He was a 25 year old man who grew 114 cannabis plants hydroponically in a rented shed.  The plants were between 5 and 50 centimetres in height.  Ryan was a heavy smoker of cannabis but was sentenced on the basis that the drug was being grown partly for his own consumption and partly for sale.  He pleaded guilty and had no criminal history. 

25. Boyle (CA No 203 of 1995, 30 July 1995) was a 43 year old man with a previous criminal history who pleaded guilty shortly before trial when confronted with incontrovertible proof of his guilt.  He and a co-accused were couriers in the commercial transport and distribution of 23 kilograms of cannabis having a wholesale value of $120,000.00.  He was to be paid just under $5,000.00 for his role.  He was sentenced to three years imprisonment. 

26. William (CA No 334 of 1996, 25 March 1997) was a 23 year old man with one prior conviction for drug offences.  He rented a house in which he and three others lived. A quantity of about 1.5 kilograms of cannabis was found in the house.  William was an associate of others who were involved in the production (and no doubt distribution) of amphetamine and allowed his house to be used for that purpose.  He was, however, acquitted on appeal of complicity in those offences.  He was sentenced only for his possession of cannabis. The matter went to trial.  There were said to be no mitigating factors and some aggravating ones.  There were children living in the house.  A sentence of four years imprisonment was reduced on appeal to two years imprisonment after comparison with Boyle and Clarke.  The possession was in connection with a commercial enterprise.

27. The cases illustrate that the range of sentences for the offence of possessing cannabis is an expansive one. The view taken by the trial judge, that the upper and lower limits were set by Boyle and Ryan respectively cannot fairly be criticised.  The applicant’s case is more serious than Ryan’s who pleaded guilty and grew the plants partly for his own consumption.  It is less serious than Boyle, but Boyle also pleaded guilty.  The outcome in William does not appear to permit the applicant’s sentence to be described as manifestly excessive. 

28. The applicant has a psychiatric illness. He suffers from a delusional disorder of the paranoid type. The usual anti-psychotic medications have proved unsuccessful. This information was put before the trial judge in concise form. No report from the treating psychiatrist was tendered and no expanded description of what difficulties the applicant might face in jail was put forward. All that was said was:

“Dr Trott feels that jail may be something of a bit of a problem and an eye would need to be kept on him generally for his own health basically”.

His Honour then said:

“Those matters . . . should be brought to the attention of the authorities.  Perhaps your instructing solicitor . . . could do that and set out in the letter the substance of any information you have received from Dr Trott.”

When passing sentence his Honour remarked:

“I take into account the fact that you have had some health problems . . . I take into account that Dr Trott has indicated that you will need assistance if you have a custodial penalty . . .”

The applicant’s health is, obviously, a relevant circumstance to be considered in the exercise of the sentencing discretion but the evidence falls short of showing that the burden of incarceration would fall more heavily on the applicant than on the ordinary prisoner, or that there was a serious risk that imprisonment would have a gravely adverse affect on his disorder.  See R v Smith (1987) 44 SASR 587 at 589.  Not enough was proved about the disorder and the effects it would have on the applicant during imprisonment, or the facilities for its treatment while in custody, to indicate that there should be a substantial reduction in what would otherwise be an appropriate sentence.  To the extent that the applicant’s health was shown to be relevant the trial judge took it into account. 

29. For these reasons I consider that the applicant has not shown that the sentence imposed is beyond the acceptable range of penalty or that the sentencing discretion otherwise miscarried. I would refuse the application for leave to appeal against sentence.