R v Laing[2003] QCA 92

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:  On 5 December 2002 the applicant pleaded guilty to one count of producing cannabis in a quantity exceeding 500 grams, a second count of fraudulent appropriation of power and a third count of possession of things used in connection with the commission of a crime.

In respect of the first and third counts, he was sentenced to two and a half years' imprisonment, suspended after serving three months for an operational period of five years.  As to the second count he was fined $5,000. 

The applicant appeals against the sentences on the ground that the learned sentencing Judge erred in his finding and that the sentences were manifestly excessive.  The applicant was granted bail on 12 December 2002 pending the hearing of this application.  He has served eight days in custody.

An agreed set of facts was tendered at the sentence hearing.  The agreed set of facts recorded that on 16 May 2002 the police executed a search warrant at the applicant's house at Beenleigh.  The applicant made admissions to the police that he had some plants to declare and admitted that he was the sole occupier of the premises an that he had lived there for about 10 months. Police found a sophisticated hydroponic system (consisting of four large hydroponic beds) that was not in use, although plant debris on the floor indicated that it had been used previously.

In addition, the police also found 117 seedlings, about five to six centimetres tall, being grown in a smaller hydroponic system.  Three plants in black containers, about four feet tall, which were part of a previous crop, were also located.  The plant material found weighed 2.048 kilograms and analysis indicated it as being cannabis sativa. 

Count 2 relates to a device which the applicant, who was an electrician, had installed to obtain electricity without its use being recorded by the meter.  The applicant was able to set up a circuit wiring a fuse box to supply unmetered electricity to the hydroponic set-up.  Technicians from Energex determined that the device made it possible for up to 42,435 kilowatt hours of unmetered electricity to be used.

The property used to grow the cannabis sativa, which was extensive, is the subject of count 3, and was valued at about $5,000.

In the course of oral submissions, the Prosecutor informed the learned sentencing Judge that the applicant, through his legal representative, had advised that he had previously grown a crop using the large hydroponic set-up, but that most of that crop was stolen during a break-in.  The prosecution indicated that that was not disputed.  The Prosecutor also informed the learned sentencing Judge that the count of production related not just to the 117 seedlings and the three plants from the earlier crop, but "whatever else was growing with it which we couldn't quantify"; that is, the count encompassed the balance of the previous crop, which the prosecution was unable to quantify and which the applicant claimed had been stolen.

The applicant, though his counsel, informed the learned sentencing Judge that with respect to the previous crop grown in the larger hydroponic set-up, about 120 seedlings had been planted and that of those about 80 plants had survived but had been stolen.

A matter that was not the subject of agreement was the commerciality of the production.  It was agreed between the prosecution and the defence that the commerciality in this case only went as far as the applicant selling to his friends and that this was the limited way in which the prosecution invited the learned sentencing Judge to proceed.  His Honour indicated during argument that he would act on the basis that there was one earlier crop of an intermediate or large size, but was considering proceeding on the basis that the commerciality extended beyond selling to friends.

Before the learned sentencing Judge, the Prosecutor submitted that a penalty of 12 months' imprisonment was appropriate.  Counsel for the applicant had conceded that a term of imprisonment, suspended after a short period, was open but urged that a fine and community service was more appropriate.

In imposing sentence on the applicant, the learned sentencing Judge had regard to the elaborate nature of the hydroponic set-up.  His Honour also had regard to the fact that the inference that production was for a commercial purpose was a strong one, even if the applicant's assertions as to the size of production were accepted, that is that there were two crops of about 230 to 240 plants.  From the nature of the hydroponic set-up, the number of plants and the absence of any explanation, apart from addiction, his Honour inferred that a commercial purpose was involved which went beyond the sale by the applicant to his friends.

It is true that his Honour made the inference as to commerciality, notwithstanding the prosecution's abandonment, on the basis of the agreed facts, of any such further inference of sale by the applicant to those other than his friends.  His Honour, however, gave the applicant notice that he was considering making that inference and afforded him the opportunity to give evidence or to put in material, which the applicant declined; nor was there any attempt to withdraw the plea after that indication from his Honour.

In imposing sentence his Honour also took into account matters of mitigation, including the fact that while the applicant did not take part in an interview, he had shown a considerable willingness to cooperate in the administration of justice in the form of admissions and an early indication of a plea of guilty, the applicant's commendable efforts to overcome his drug addiction and the references tendered.  His Honour also had regard to the applicant's criminal history, but rejected it as a matter which should operate firstly to the applicant given that it concerned, in the main, motor vehicle offences and only contained one minor prior drug offence.

Before this Court the applicant submitted that the learned sentencing Judge erred in finding (a) that the production of two crops of cannabis was for a commercial purpose and (b) that the production of an earlier crop was not limited in size to that found by the police.

In making these submissions, the applicant emphasised the following matters:

(a)The older hydroponic equipment and plant debris were from an earlier production attempt, the fruits of which were stolen, and that the 117 seedlings found were to replace that crop.

(b)The applicant's desire to disassociate himself with the criminality of seeking a regular supply from a dealer, although he accepted that he would have shared the cannabis among friends if they sought it for personal use and would have sold it to them for that purpose also.

(c)The lack of other evidence such as scales, plastic clipseal bags, cash, lists of contacts or records of sale indicating commerciality.

The applicant conceded that Section 132C of the Evidence Act 1992 allows a sentencing Judge the discretion to act on an allegation of fact asserted by the Crown but not admitted by the person to be sentenced.

Pursuant to Section 132C(3) of the Act, the degree of proof required before the sentencing Judge may act on the allegation is that he or she is satisfied on the balance of probabilities that the allegation is true.  For the purposes of that subsection, the degree of satisfaction required varies according to the consequences, adverse to the person to be  sentenced, of finding the allegations true.

The applicant submitted that the allegation of fact as to whether the production was for commercial purposes was one which would ordinarily and which did aggravate the sentence imposed, and as such was one which required the learned sentencing Judge to have a very high degree of satisfaction.

The applicant contended that in drawing the inferences to commerciality, his Honour erred in failing to give proper weight to the applicant's then addiction to cannabis, the absence of evidence as to the usual indicia of commerciality and the applicant's desire not to be associated with the criminal element in seeking a regular supply from commercial dealers.

In addition, the applicant argued that his Honour erred in drawing support for the inference of commerciality from his finding that the proposition that the production was limited to two crops of the same size was one which lacked credit and the applicant therefore submitted that on all of the facts as placed before the learned sentencing Judge, his Honour was not entitled to reach the findings challenged.

On behalf of the respondent, it was submitted that his Honour was not bound to act on the view of the facts urged upon him by the parties so long as his Honour gave the parties notice that he did not intend to do so (see R v Tarabay CA No 107 of 1998) which his Honour duly did.  The respondent submitted that the learned sentencing Judge's conclusion that the applicant had a commercial purpose was one which his Honour was entitled to reach having regard to the sophistication of the hydroponic set-up, the number of plants involved and the lack of explanation other than the applicant's addiction and desire to source his own cannabis.

I consider that his Honour was entitled to be satisfied as to the aspect of commerciality on the material before him and that no error has been demonstrated in his Honour having made the finding challenged. 

In addition, the applicant also sought leave to appeal against the sentences imposed on counts 1 and 3 on the basis that, even if the learned sentencing Judge was justified in finding a commercial purpose, the sentences imposed were manifestly excessive.  It was submitted that comparable cases referred to the learned sentencing Judge by the applicant's counsel indicated that a much lesser sentence on counts 1 and 3 was appropriate and that his Honour failed to properly consider and distinguish those cases from the present case.  In particular, the applicant submitted that a wholly suspended sentence of 12 months' imprisonment operational for a period of four years should have been imposed for counts 1 and 3.

The applicant referred to a number of cases involving sentences imposed in the context of commercial productions.  R v Fioretti involved 70 seedlings and over four kilograms of cannabis material from a failed previous crop where there was a purely commercial purpose and no personal use.   A $4000 fine was imposed, although it should be noted that the offenders there were much younger than the applicant and had no previous convictions.

R v Gandini involved a hydroponic production of over 150 plants weighing over 11 kilograms and the possession of two bags of dried cannabis of three kilograms.  While no specific finding of commercial purpose was made, a sentence of 12 months' imprisonment wholly suspended for four years was imposed on the basis that the production was "at the lower end of examples of someone who grows a crop with some degree of ulterior benefit in mind".

R v Hellmuth involved the production of 318 mature cannabis plants with a commercial purpose by a 45 year old man who entered a plea and was sentenced to two years' imprisonment wholly suspended for three years. 

The applicant referred to a number of other cases involving wholly suspended sentences or fines combined with probation or community service (see for example R v Gonabale, R v Golding and R v Dionysius).

Having regard to the authorities relied on by the applicant, particularly Gandini and Hellmuth, I consider that the  sentences imposed on counts 1 and 3 were manifestly excessive, especially when combined with the $5000 fine to be paid within six months imposed on count 2.  The sentence imposed failed to give adequate weight to the matters of mitigation present in this case, in particular the high degree of cooperation by the applicant and the low level of commerciality involved even on the findings made by the learned sentencing Judge.  Furthermore, the sentences imposed failed to have sufficient regard to the applicant's very good prospects of rehabilitation and that those prospects were best served by imposing a non-custodial sentence.

There was a challenge to the fine imposed on count 2 on the ground that it was manifestly excessive.  I do not consider that that is so if a non-custodial sentence is imposed on counts 1 and 3.

Accordingly, I would grant leave to appeal against sentence in respect of counts 1 and 3.  I would set aside the sentence imposed on counts 1 and 3 and, in lieu thereof, sentence the applicant to imprisonment for a period of 12 months suspended after the eight days already served for an operational period of four years.

The sentence on count 2 should stand.

THE PRESIDENT:  I agree.

WILLIAMS JA:  I agree.

THE PRESIDENT:  The orders are as set out by Justice Philippides.