R v Shepherd[2001] QCA 181

COURT OF APPEAL

de JERSEY CJ

WILLIAMS JA

MACKENZIE J

CA No 374 of 2000

CA No 375 of 2000

THE QUEEN

v.

STEPHEN CHARLES SHEPHERD and ROBIN KYRIAKOUApplicants

BRISBANE

DATE 11/05/2001

JUDGMENT

THE CHIEF JUSTICE:  The applicants were sentenced to three years' imprisonment to be suspended after one year for an operational period of three years for the production of cannabis with a circumstance of aggravation in that there were more than 100 plants, and to lesser concurrent terms for other related charges.  They seek leave to appeal.

They are presently 45 year men who were recruited from Brisbane to tend a cannabis crop for five months for a sum of $100,000.  The crop was located near Burketown, to which they were driven.  It was a large sophisticated operation at which, after two and a half months, when arresting the applicants, the police discovered as many as 4,756 cannabis plants and three bags of seeds weighing 530 grams.  The street value of the plants was estimated at many millions of dollars.

By the time of the applicants' arrival the crop had been established by others.  The applicants' role was to maintain, develop and protect it.  For the last purpose they were provided with weapons and when apprehended by police they did not identify the others who were involved or agree to be interviewed but they did plead guilty to guilty to ex officio indictments.

Mr Boe, who appeared for them at sentence and at this appeal hearing, sought to compare their position with that of Innes in Cook (1996) Queensland Court of Appeal 66.  Innes, for her involvement in a sophisticated production was following appeal subjected to two years' imprisonment with a recommendation for parole after six months; but, as pointed out on behalf of the Crown, there are valid distinctions to be drawn between her position and that of these applicants.  She worked on the plantation for about 7 weeks compared with the applicants' 10 weeks but of an agreed five month span, and her earnings were $5,000 compared with the applicants' agreed $100,000.  Innes was a mother with young children to support and her role was less than that of these applicants whose application to the task was central to the survival of the crop.

It is trite, but probably should be noted again, that those who aid in the production of massive cannabis crops for an intended substantial personal financial reward must expect substantial punishment.

I would for my part accept the Crown's submission made at sentence, that the head sentence could have exceeded not insubstantially the three years here imposed.  I have in mind Appelwaite and Jones (1996) 90 ACLR 167 at 171 where in respect of the tending of a much lesser quantity of plant - in that case apparently 504 seedlings in starter pots and 50 seedlings in soil - the majority on the Court said:

"Sentences of three years' imprisonment have not infrequently been imposed with respect to production of similar quantities to those in issue here although such sentences have commonly been tempered by a recommendation for parole after 12 months."

The suspension of the sentence after 12 months, taken with that circumstance that the three years falls I consider, for this massive production, towards the lower end of the range for head sentence, sufficiently and appropriately reflected the circumstances favourable to the applicants, principally their pleas to ex officio indictments and their limited past relevant criminal histories.  I should say those past criminal histories were in the case of one of them nonexistent and in the case of the other as the sentencing Judge observed largely irrelevant.  I would refuse the application.

WILLIAMS JA:  The principal argument advanced on behalf of the applicants was there their criminality should be assessed in light of the asserted fact that they were unaware of the nature of the plantation that they would be caretakers of when they accepted the position.  However, it seems to me that they became fully aware of that on arrival and the material before the sentencing Judge clearly indicates that for a period of two and a half months they carried out their tasks assiduously.

They expected to receive $100,000 for the work and that in itself supports the inference that they knew that their task was a significant one and that the crop was a substantial one.  In my view their criminality must also be assessed in the light of the fact that the police located at the crop site one Zavodi bolt-action rifle, one Beretta point 22 calibre semi-automatic hand gan, one Norinco point 45 calibre hand gun, one Sterling point 22 calibre semi-automatic rifle and two silencers.  As the learned sentencing Judge observed in the course of his sentencing remarks:

"As well, you were given guns, those which form the subject of the charges against the Weapons Act, no doubt to protect yourselves and the crop in the event of intruders arriving."

That, in my view, makes the criminality of the conduct here more serious than that seen in some of the other cases where the Courts have dealt with crop sitters.  I agree with all that has been said by the Chief Justice and with the orders he proposes.

MACKENZIE J:  I also agree with what the Chief Justice and Mr Justice Williams have said.  While it may be accepted that the applicants did not have precise knowledge of the great level of sophistication of the facilities which would be available to them they must have been aware from the potential reward of $100,000 between them for five months' work that the enterprise to which they were going was large.  Their duties were to operate an irrigation system, plant seedlings, eradicate weeds and, it may be inferred from the presence of hand guns and long weapons, to guard the crop if that became necessary. 

The term "crop sitter" can cover a wide range of activities.  This particular case is one which falls towards the top of that term, if it be a valid term at all, and in my view the sentence is not shown to be manifestly excessive.  I would agree with the order proposed by the Chief Justice.

THE CHIEF JUSTICE:  The applications are refused.

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