R v Reddell[2001] QCA 515

COURT OF APPEAL

McPHERSON JA

MACKENZIE J

CHESTERMAN J

CA No 286 of 2001

THE QUEEN

v.

BARRY TREVOR REDDELLApplicant

BRISBANE

DATE 16/11/2001

JUDGMENT

McPHERSON JA: The applicant was convicted on a plea of guilty to one count of producing, between March and May 2000, a dangerous drug in an amount exceeding that prescribed by the third schedule. He was sentenced to 12 months imprisonment. The drug produced was cannabis, which was growing on a property outside Cairns that was some distance from the applicant's home where he lived at the time.

There were, in fact, two crops, one containing 130 plants and another crop containing 70 plants. Crop 1, according to the analyst's certificate, weighed 123.549 grams and Crop 2 weighed 832.4 grams. Either crop, taken on its own, took the offence beyond the third schedule amount. 

The offence of production to which the applicant pleaded guilty was capable of referring to either or both crops. The applicant admitted responsibility for Crop 1, but not for Crop 2. That issue, that is whether he was also responsible for Crop 2, therefore fell to be determined at the sentencing hearing at which evidence was called. If, in fact, the applicant had grown the two crops the offence was still the same. That is to say it remained one of production, but to some extent at any rate the offence became slightly more serious than if only one crop had been grown.

The sentencing Judge, who was the Chief Justice, found that the applicant was responsible for cultivating both crops; that is to say, it was he who had done it or had arranged for it to be done. In addition to the fact that both crops were being grown on or near the same property, or some of the same property, there were similarities in the method of cultivation. Among other matters, the investigating sergeant of police, who had considerable experience of crops of marijuana, said that both crops employed the use of overhead wires which, in his experience, was a unique method of cultivation. 

The Chief Justice determined this issue on the balance of probabilities which by statute is now the applicable standard of proof in Queensland with respect to facts on sentencing. For my part I can see no basis on which his findings could or can be properly upset on appeal.

The applicant admitted that he had been growing Crop 1 to pay out a sum he owed his former wife as a result of a divorce settlement.  But he also claimed on appeal that the debt was only $63,000 and not $85,000 as alleged. I do not see that this affects the conclusion that he was growing or producing for commercial purposes. Unless he was intending to supply his former wife with the cannabis in specie, and perhaps even then, he must have been intending that the crop would be sold somewhere else in order to obtain the money to pay the debt.

He also complains that there is some confusion about the respective weights of the two crops in the sense that Crop 1, which had 130 plants, was said to weigh only 123 grams, whereas Crop 2, of 70 plants, weighed 832 grams. The difference, however, appears to be explained by the fact that the crops were in different stages of development or care in the sense that one of them had, it seems, been cut back, or to use the word in the record, "manicured" or pruned in some way, so that the regrowth consisted of leaves of a smaller and less usable kind.

The applicant is a man of 44 years of age with a prior conviction in 1994, and again in 1999, for possession of cannabis. He has three sons, one of whom was still living with him at the time of these events. He is said not to be himself an addict. He has worked for Telstra and Cook Shire Council in the past. He claims to have rehabilitated himself since the incidents giving rise to these charges, by counselling child sexual abuse victims and those who had suffered domestic violence.

I must say for my part and having heard him speak, I think it is something of a tragedy that he allowed himself to be tempted in this way. The sentence is, in my opinion, nevertheless within the range for an offence or offences of this kind. It is perhaps slightly higher than that in R v. Kennedy (CA No 516 of 1994); but any divergence between the two is not such as would justify this Court in interfering in the sentence imposed below; in any event there appear to be possible explanations of the differences between the sentences in the two cases which do not lead me to conclude that the decision in that case creates any real distinction in sentencing tariffs from what it is in this case.

In the result I would refuse the application for leave to appeal.

MACKENZIE J: In my view, a sentence of 12 months' imprisonment would not be manifestly excessive for a commercial plantation whether 130 or 200 plants where the commercial purpose was of the kind involved in this case. As I understand that Mr Justice Chesterman is of the same view as the presiding Judge, what I will now say will not affect the outcome of the proceedings in any respect. However, I do wish to make some comments about a matter which was touched upon in argument.

The question is whether it was permissible in this case to determine, as if it were only a disputed fact, that the applicant was criminally responsible for Crop 2. It was common ground between counsel that the matter should proceed on that basis and the learned Chief Justice seems to have been encouraged to adopt that method of proceeding when the matter was before him.

It is not surprising, in my view, on the circumstantial evidence described by the learned presiding Judge that the Chief Justice found as he did on the facts. I would also say that what I say should be viewed as having regard to the particular facts of this case and does not encourage any wider view, for example, that there is any point in running this kind of argument in a case where there might be some dispute as to the precise number of plants in one plantation.

It is a case where there were two distinct crops, widely separated in distance. The link is said to be that one crop was older than the other and that that supported the notion of a continuous process of production. That no doubt accounts for the two crops being rolled up in the one count in the indictment.

The plea of guilty admitted that the applicant was criminally responsible for producing Crop 1, but denied criminal responsibility for Crop 2. The approach to fact-finding on sentence includes the propositions that it is for the Judge to determine the facts and material for the exercise of the sentencing discretion and that the facts acted on must be consistent with the jury verdict or the plea of guilty. (Morrison 1999 Queensland Reports 397 at 421 and 422).

In this case the question is whether the finding that the applicant was criminally responsible for Crop 2 is not an inference from uncontroverted facts as, by contrast, is the case where a commercial purpose is to be inferred from uncontroverted facts, i.e. the facts (excluding inferences) which define the ambit of the plea of guilty. 

The question, it seems to me, is whether what was done in this case goes beyond what is permissible when determining the basis upon which a sentence is to be imposed. The question is whether the Crown should have been asked if it accepted the plea on the basis that the applicant was not criminally responsible for Crop 2 and, if not, whether the Crown should have been required to have the question of criminal responsibility for Crop 2 determined by the jury, perhaps with a special verdict on the count which was before the Court at that time or on a separate indictment since the applicant, at least, alleged that it was a separate crop of which he knew nothing.

The outcome will be as has been pronounced by the learned presiding Judge and on the basis that it has been approached by him I would agree with that outcome.

CHESTERMAN J: The difficulty described by Mr Justice Mackenzie may in some cases become acute but, in my opinion, in the circumstances of this case it was appropriate to proceed as the Crown did. 

On the view of the facts advanced by the applicant or on the view of the facts contended for by the Crown, the applicant was guilty of the offence charged against him. It was, therefore, I think, appropriate to proceed to deal with the disputed fact on the basis the Chief Justice did. 

There is no identified basis for departing from his Honour's view of the facts. In any event, it would seem to me, that were the facts to have been found as the applicant contends they should have been, the sentence imposed would still have been not manifestly excessive.

I agree with the reasons given by Mr Justice McPherson and that the application should be dismissed.

McPHERSON JA: The order is that the application for leave to appeal is dismissed.