R v Rodgers[2003] QCA 99

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  Both appellants, together with George Ross, were convicted after a 23 day trial of unlawful production in excess of 500 grams of the dangerous drug cannabis sativa.  Each appellant now appeals against his conviction only on the grounds that the jury's verdict was unreasonable.  The appellant, Rodgers, was sentenced to three years imprisonment and contends the sentence was manifestly excessive.  Rodgers was 62 years old at trial, the father of the 27 year old Dowling and a friend of the 66 year old Ross.

The appeals against conviction

Facts

[2] The grounds of appeal make it necessary to review the evidence.  On 23 November 2000, police officers Smith and Graham were patrolling the Pennings area in Benarkin State Forest near Nanango.  They gave evidence that they observed a cleared area to the right hand side of the road and discovered a well-used track, 400-500 metres long, leading from the cleared area towards an old corrugated iron water tank.  About ten metres past the water tank they discovered two plots.  The larger western plot was surrounded by a chicken wire fence and lantana.  It contained two water tanks and a large number of cannabis plants ranging in height from two to three feet.  The eastern plot was smaller and less well maintained; it contained about two dozen cannabis plants ranging in height from one to two feet.  They returned to their vehicles and watched the area until about 6.30 pm but saw nothing unusual.  They returned the next day at about 4 am.  They noticed a small side-track running off the main track; there were no vehicles on it.  They again inspected the cultivation site.  Graham returned to the police vehicle and Smith found a place where he could conceal himself and observe the area about five to seven metres from the edge of the eastern crop. 

[3] Smith gave evidence that at 10.27 am he saw Rodgers and Dowling enter the section between the two sites and move to the western plot.  Rodgers was carrying a knapsack and appeared to have something silver in a gun style holster on his right hip.  Rodgers and Dowling weeded around the plants and removed some small cannabis plants.  Ross then joined them.  They were all talking but he could not hear the conversation.  Ross and Rodgers went to the water tank area where they seemed to fill their water bottles; they moved into the eastern plantation, each carrying a mattock.  Rodgers said that they would have to attack the lantana and Ross agreed, commenting that the lantana soaked up all the water for the "pot".  Ross then hit the lantana and other shrubs around the boundary of the eastern plantation with a mattock.  Dowling took over the mattocking whilst Ross collected broken branches and threw them aside.  Rodgers moved towards the eastern side of the eastern plot, just a few metres from Smith's hiding place.  Smith was forced to lie back to prevent his discovery and lost sight of Ross and Dowling for a time.  He could still see Rodgers whom he heard say, "Do you know this is not the only one I've got. You drive along these fucking tracks and look for a dead tree.  You follow the dead tree along the track and it'll lead you straight to the stuff."  Ross responded, "Bullshit."  Rodgers said, "No bullshit."  Later, Rodgers and Ross were discussing worms and Rodgers said the soil was great for the pot.  Ross said, "It's great for fishing. … Fishing and growing pot, nothing gets better than this."  Rodgers told Ross that he needed to extend one area by 50 yards because it was too difficult to dig uphill and undesirable to extend the plot downhill; Ross agreed that this was the best course.  Rodgers also complained to Ross that the rocks affected the pot and Ross agreed there were a lot of rocks.  Rodgers complained about the hot work, grumbling, "There must be an easier way to grow the stuff" and "All these rocks don't do your arms much good".  Smith saw Rodgers push down a dead tree.  Rodgers was wearing leather gloves and Smith saw that the silver object in the holster was a semi-automatic pistol.  Rodgers, Dowling and Ross continued clearing and mattocking the areas for some time.  Smith was periodically able to overhear conversations.  Rodgers threw some cleared shrubbery in the direction of Smith, stopped and stared at his hiding place.  Smith believed he had been discovered and when he saw Rodgers reach for his pistol, he jumped up.  He was wearing police issue overalls, and yelled, "Police", drew his pistol and aimed it at Rodgers, saying, "Don't fucking do it, Billy."  Rodgers aimed his gun, which had a bullet in its barrel, at Smith before dropping it.  Dowling had a mattock in his hand and Ross a white plastic bag at his feet.  Rodgers said, "We're down here looking for a horse."  Smith directed them to the bottom of the plantation

[4] Police officers Graham, O'Brien and Howden all saw Rodgers digging with what looked like a mattock before they ran down the hill to assist Smith.  Howden commenced video recording.  That recording showed Rodgers, Dowling and Ross at the site.  Although not clear, it arguably showed Rodgers digging at the site; it also showed Rodgers' backpack and a gun hanging from a wire or string stretched between two trees in the western plot.  Graham did not see the suspended backpack and gun when he first inspected the western plot and O'Brien did not notice it until some time later.  Each police officer at the site denied hanging up the gun and backpack.  Smith observed that Dowling was not within police vision at all times whilst he was at the site.  Police took possession of only one mattock; Howden said a second mattock was destroyed at the site.  There were animal traps, but no horse droppings in the area.

[5] Dowling admitted the packet of cigarettes found amongst jumbled items near one of the tanks, five metres into the western crop site was his property.  Dowling's fingerprints were found on a drink bottle in a sack with other bottles at the site.  Rodgers' car was parked in an isolated location on the sub-track where it could not be seen from the road with a branch placed across the side-track. 

[6] Rodgers tendered a video showing the crop site in May 2002, 18 months after the offence.  Smith said this video depicted the site as much more overgrown than it was in November 2000.

[7] At 2.30 pm Graham, O'Brien, Howden and Ryan executed a search warrant at the appellants' home.  Police did not video tape the entire search.  Ryan said this was because the battery in the video camera was flat whilst Howden said the inspection of Rodgers' gun cupboard was not videoed because it was only necessary to video tape evidence and the gun cupboard did not reveal evidence.  During the search the police found on a bench two crescent shaped pieces of metal of a like colour and consistency to both the modified blade of a shovel found at the plantation site and a similarly modified spade found at Rodgers' premises; the blades had been modified into a v-shape and the metal pieces appeared to fit into the modified blades.  O'Brien returned to the police vehicle to get the video recorder but could not find a video tape.  When Howden was helping him search for a tape, Rodgers ran off towards the bushes with something in his hands; police officers captured him 50 to 80 metres away in a neighbouring yard; he no longer had anything in his hands; the pieces of metal had disappeared from the bench.  Police also located a cannabis seedling and a seedling tray, poly pipe and sheeting similar to property found at the plantation.

[8] In cross-examination about the search at the committal proceedings, O'Brien gave an answer which could have been interpreted as either that he took the cannabis seedling out of the police vehicle or that he took the video camera out of the police vehicle.  O'Brien said that he was confused during cross-examination and intended to say the latter.  In context, that was plainly the effect of his evidence.

[9] The next day Howden and O'Brien showed Rodgers a list of items of property taken from his home during the search, including the shovel head; Howden explained the list to Rodgers and he signed the Field Property Receipt.

[10]  Smith said that he prepared notes of his morning observations at the cannabis plantation at 5.15 pm that evening, 24 November 2000, after dropping the appellants back to Rodgers' car at the plantation, following their charging and release.  The defence contends this was impossible on the evidence.  The various police accounts of their movements that evening were difficult to follow.

[11]  It was common ground that Rodgers and Dowling had both been charged and released from police custody by about 4.30 pm.  Smith said he then drove the appellants in a sedan attached to the Kingaroy CIB to Rodgers' car, about six kilometres along a bitumen road and then about six to nine kilometres on unsealed forest roads; he travelled at about 120 to 130 kph, slowing at times to 100 kph.  His evidence was at best confusing as to whether he saw or passed logging trucks on the way.  He dropped the two men near the car, jogged down the hill to see Wilkie and Graham at the site and carried bags of green leaf material[1] up the hill to his vehicle before returning alone to the Blackbutt police station where he made the notes at 5.15 pm. These notes comprised 23 handwritten pages in a standard police notebook; they do not record the time of completion but the next entry is for 21.00 on 24 November 2000 and concerns an unrelated domestic disturbance.

[12]  Howden said she and O'Brien met up with Graham and Smith in the Blackbutt police 4 wheel drive and Wilkie in his scenes of crime vehicle on the road near the plantation at about 5.30 pm or sunset; it was on dusk when she returned to the police station at about 5.30 or 6.00 pm and she then observed Smith making his notes.  O'Brien said that there were no other police officers at the station at 5.20 or 5.30 pm when he left for the crop site.  He returned at dusk after meeting Graham, Wilkie and Smith near the site.  An Astronomical Phenomenon Certificate established that sunset at Blackbutt on 24 November 2000 was at 6.26 pm and civil twilight at 6.52 pm.  Smith was adamant he did not meet O'Brien or Howden on his way back from the crop site; Wilkie did not remember the meeting and Graham was not questioned about it.   

[13]  Smith gave evidence that the total weight of the green leafy material was 17.25 kilograms.  Samples were taken for analysis.  An analyst's certificate established that a cannabis seedling and seven bags of samples of green leafy material weighing in total 6,684 grams contained cannabis sativa.

[14]  Rodgers gave evidence that he was planning to go to the gun club on 24 November 2000 when Dowling and Ross asked if they could accompany him.  He thought they could help him search for a horse which had been missing for three months and assist with a fence.  They drove out to the Pennings area where he has some property, went into the track, parked the car and walked a further half mile up the track looking for the horse.  They then returned to the car and looked on the other side of the boundary fence where he had previously seen horse droppings.  Rodgers moved his car out of sight of the road to the side-track because his tyres had previously been let down whilst parked in the area; he took his guns, one in his backpack and one around his waist, because he did not want to leave them in the car.  He wore a glove for protection against lantana.  They stumbled because of the steepness of the track into the eastern crop site.  He suggested they have a look around and get out as quickly as possible.  They then went into the western crop.  He looked through rubbish around the water tank; he felt a tick on his back and removed his backpack whilst Dowling removed the tick.  Ross, who was unwell, joined them.  Rodgers picked up a pair of pliers, cut the fence wire into the western crop and put a rock on it to enable Ross to enter.  Ross filled his water bottle at the tank and sat down under a tree.  Rodgers whispered that they should get out as quickly as possible after having a quiet search around.  He did not place a gun or backpack in the trees.  He prodded the ground with a stick because he had seen some dingo traps and thought there may be more under the grass.  He found a mattock which he used to rake up tufts of grass.  He thought he heard a snake and he made some strikes at where it may have been.  Just as he saw what he thought was a dead body, Smith jumped out of the grass.  Rodgers did not see Dowling digging, watering or fertilising the eastern crop and Ross remained resting under the tree throughout.  Dowling joined Ross and him.  Smith used his police radio and said something like, "I got them" and other police officers came down the hill.  Rodgers was only at the plantation site for a short time; initially he said he was there for ten minutes to half an hour and later only five to ten minutes. 

[15]  When questioned by police, Rodgers made a number of statements which he later admitted were untrue.  First, he said he did not aim the gun at Smith; he thought Smith was an animal.  Second, he initially said he was carrying his gun to protect against wild animals and later because he was aware there were people at the crop site doing something; he had been there the day before and was coming back to have a look around.  Third, he said that he had seen the police drive out to the plantation that morning and had not taken any notice of them.  Fourth, he stated that he and the others had walked to the site.[2]

[16]  They all returned to the Blackbutt police station where Rodgers overheard O'Brien tell Graham that there was not enough evidence to charge the three men.  O'Brien and Graham denied this conversation.

[17]  Rodgers denied that pieces of metal, a shovel head or a cannabis seedling were located at his home during the police search; he claimed these were planted by police officers.  Only when Ryan told him to run and get a solicitor did he jump over the fence into a neighbouring property; when he remembered he did not know the neighbour he stopped running and the police apprehended him; he did not throw away any pieces of metal.  Ryan denied he told Rodgers to run away and all police officers denied planting evidence. 

[18]  Rodgers claimed that during the police search of his premises he saw Graham remove and put in his pocket $2,600 from Rodgers' gun cupboard.  Graham denied this and Howden said there was no money in Rodgers' gun safe when she inspected it.

[19]  Rodgers said that on 25 November when Howden showed him the list of property taken from his house the previous day he signed the Field Property Receipt but he did not have his glasses with him; he did not know the shovel head was included in the list of property. 

[20]  Rodgers said that Smith and Graham displayed animosity towards him because of an ongoing dispute as to custody and access arrangements for his grand-daughter in which the police  took the part of the family of the child's mother.  Rodgers asserted that Graham was responsible for letting out one of his horses and that there had been no complaints about Rodgers' horses since Graham left the district.  Smith said there had been no complaints about the horses since the date of the offence.  Smith and Graham accepted they had telephoned Rodgers a dozen or more times about complaints concerning his horses and Smith also contacted the Esk Shire Council about the issue.  Rodgers also claimed that, after being charged with these offences, he was being harassed by police who submitted a report to the Licensing Branch dealing with the records of Rodgers' pistol club.  Smith said he made the report because he was concerned that Rodgers may attempt to register his firearms in his wife's name.  Graham and Smith agreed that after Rodgers was charged they twice set up speed traps on Franks Road, where Rodgers lived, and they breathalysed him once.  Smith also warned Mrs Rodgers about failing to wear a seatbelt; he became aware at some stage that she was exempt. 

[21]  Rodgers had previously reported drug crops to the police and had no prior convictions for drug offences.

[22]  Neither Dowling nor Ross gave or called evidence.

[23]  It is clear from these facts that if the jury accepted Smith's and rejected Rodgers' testimony, there was ample evidence to convict both appellants.

Was the verdict unreasonable?

[24]  Both appellants represent themselves in this appeal; Rodgers was also self-represented at trial.  In contending the verdict is unreasonable, Rodgers has a myriad of contentions.  I will deal with those which I understand he emphasised in his written and oral submissions.  Some of these arguments were also taken up with somewhat greater clarity by Dowling.

[25]  Early in the trial a member or members of the jury expressed concern that the unrepresented Rodgers had access to their addresses.  Her Honour allayed those concerns, informing them that the jury list containing addresses was collected from Rodgers immediately after the empanelment and that Rodgers had no recollection of any addresses because of his nervousness at the time of the empanelment.  The jury indicated to the court that they had no specific concerns.  Her Honour again asked the jury if any member could not now decide the case impartially and received a negative response.  There is no reason to think that those initial concerns affected the jury's verdict.

[26]  Rodgers complains that he informed the court that a member of the jury expressed to him a desire to view the crop site.  Her Honour correctly indicated that was a matter for the trial judge.  Her Honour did not order a view, which is hardly surprising considering that the trial was held in May 2002, 18 months after the discovery of the plantation.

[27]  In his written submissions, Rodgers contends that the jury was adverse to him because the trial went much longer than its originally anticipated four days.  It may be that some members of the jury were frustrated with Rodgers' conduct of his case; he cross-examined for very lengthy periods, sometimes ineffectually, and often on matters of marginal relevance.  There is nothing, however, to suggest that the jury did not conscientiously obey their oath and her Honour's directions and deliver a true verdict only on the evidence before them.

[28]  Rodgers contends that the police evidence about finding the gun and backpack hanging in the trees was fabricated.  This evidence was rather peculiar, but her Honour highlighted the appellants' contentions to the jury and referred to the diverging evidence on the point.  It was open on that evidence to find that Dowling placed the bag and guns in the unusual position in which they were found when he was not under observation by police.  The evidence was admissible; her Honour's directions to the jury were even-handed.  It was a matter for the jury what they made of it.  That evidence did not compel them to reject the police evidence on this or other matters.

[29]  Rodgers contends that the judge erred in not allowing him to tender a letter from the local council dated 9 March 2001, which indicated, contrary to Smith's evidence, that there had been complaints about his stock wandering onto roads after he was charged with these offences.  Rodgers contended that he had wandered onto the crop site looking for a lost horse when he was located by police on 24 November 2000.  There was evidence from the police officers and Rodgers that Rodgers' stock had wandered prior to 24 November 2000.  Whether Rodgers' stock wandered onto the road after the offence was not relevant to the issues here; Smith had stated that he was unaware of any complaints after 24 November 2000 and that statement, which was only relevant to Smith's credit, could not be second-guessed by other evidence.  Her Honour rightly excluded this evidence, which would only have diverted the jury's attention from the real issues and unnecessarily prolonged an already lengthy trial.

[30] Rodgers complains that her Honour was biased against him, emphasising her Honour's ruling on his contention that the case was too weak to be left to the jury:

"Mr Rodgers, the case is based on the direct evidence of this police officer together with some other evidence so far as you are concerned.  You are fortunate it is a jury deciding it, and not me, in fact. I consider there is sufficient evidence to go to the jury and I don't think we'll delay any longer on that point." 

This ruling was given in the absence of the jury.  Her Honour's summing-up on the facts and of the defence cases was thorough and even-handed.  Although her Honour's patience must have been severely tried by Rodgers conduct of his defence, her Honour did not show any significant annoyance in the presence of the jury.  She certainly did not unfairly curtail Rodgers' conduct of his case although she made efforts, consistent with her duty, to confine it to relevant matters.  Her Honour took every care to ensure Rodgers had a fair trial.

[31]  Rodgers contends in his written submissions, that his cross-examination was unreasonably curtailed and unfair limitations were placed upon him in his address to the jury.  This contention is not supported by any particulars and a review of the lengthy record demonstrates it is patently false.  For example, Ryan gave evidence in chief for ten minutes, was cross examined by Dowling's barrister for 13 minutes, by Ross' barrister for ten minutes and by Rodgers for 137 minutes; Howden gave evidence in chief for 319 minutes, was cross-examined by Dowling's barrister for 61 minutes, by Ross' barrister for 53 minutes and by Rodgers for 254 minutes; Graham gave evidence in chief for 35 minutes, was cross-examined by Dowling's barrister for 24 minutes, by Ross' barrister for 34 minutes and by Rodgers for 268 minutes;  O'Brien gave evidence in chief for 68 minutes, was cross-examined by Dowling's barrister for 13 minutes, by Ross' barrister for 24 minutes and by Rodgers for 314 minutes.  Rodgers himself gave evidence in chief over 336 minutes; he addressed the jury, without interruption from her Honour or counsel, for 108 minutes, whilst the prosecutor's address took 55 minutes, Ross' counsel's address took 85 minutes and Dowling's counsel took 51 minutes.

[32]  Rodgers complains that on day 16 of the trial, her Honour refused his application to adjourn the trial to allow him to prepare his case.  That was an unexceptional exercise of discretion in the circumstances; there is nothing to establish that it resulted in a miscarriage of justice or affected the verdict.

[33]  Rodgers also contends that the evidence as to items found at his house should have been excluded because the search warrant was not lawfully obtained.  The search warrant was never produced to the court although the application for the search warrant was tendered for identification.  Rodgers did not, at trial or on this appeal,  establish that there were not reasonable grounds for the issue of the search warrant or that the search warrant was unlawfully obtained. 

[34]  Rodgers submits that property, including a modified shovel and a cannabis seedling, was planted by police at his house before the search.  In support of this, he points out that one police officer, O'Brien, did not see the shovel at his house, even though it was said to be next to metal pieces apparently removed from it, which he did see.  This issue was argued at trial; the jury were by no means compelled to accept Rodgers' evidence and indeed the police version of events was far more plausible.

[35]  Rodgers contends that the video of the search of his premises is not admissible but he has failed to rationally demonstrate why.

[36]  He contends that the learned primary judge misled the jury as to whether Howden informed him of the contents of the receipt for the list of  items taken from his house during the search before he signed it.  Her Honour's words were: "Constable Howden said she explained to Mr Rodgers exactly what was on the document."  Rodgers took us to a passage of evidence in re-examination which did not entirely support her Honour's summation of this evidence[3] but he omitted to take us to a passage in his cross-examination which established the accuracy of her Honour's words.[4] This contention is misleading and completely without substance.

[37]  He emphasises there are conflicts between Smith's evidence and the summary prepared by Howden in consultation with Smith in a QP 9 form for the Magistrates Court.  Her Honour also referred to this inconsistency in the summing-up; that matter was left for the jury's determination.  The verdict suggests the jury, hardly surprisingly, concluded that the inconsistencies were either not significant or mistakenly recorded by Howden on the QP 9.

[38]  Rodgers argues that all the drugs located at the site should have been produced at the trial.  On the police evidence the green leaf material was sampled for analysis, photographed and destroyed or stored.  An analyst's certificate was tendered indicating that the samples contained cannabis sativa.  This evidence sufficiently established the relevant elements of the charge. 

[39]  Rodgers next contends that he should have been allowed to cross-examine the analyst about the certificate.  In the absence of evidence to the contrary, the analyst's certificate is conclusive: see s 56 Drugs Misuse Act 1986 (Qld).  Rodgers did not establish any proper reason at trial or on appeal to justify cross-examination of the analyst. 

[40]  He next contends that he should have been allowed to tender a letter from his solicitor, which showed that he was paid two cheques of $5,000 each on 26 June 2000.  It is impossible to understand this contention because the letter was tendered[5] once the prosecution was able to question upon it.

[41]  In his written submissions, Rodgers contends the judge gave wrongful directions regarding the standard of proof.  Her Honour gave all the well-established directions as to the onus and standard of proof and said nothing to diminish those directions elsewhere in her summing up.  This contention is manifestly without substance.

[42]  Both Dowling and Rodgers emphasise that although Smith gave evidence of two people using two mattocks only one mattock was ever recovered or photographed.  They also contend that they were not at the crop site long enough to have done and said the things about which Smith gave evidence.  These matters, minor inconsistencies between the various police officers as to the time at which the police arrived at the crop site on 24 November 2000; the fact that fingerprints other than those of the appellants and the co-offender Ross were found at the site and the many other minor matters raised by the appellants both at trial and on this appeal were jury questions.  Her Honour carefully and fairly put the appellants' case to the jury.  The verdict indicates they accepted the prosecution case beyond reasonable doubt, a course entirely open to them on the evidence.

[43]  Both appellants emphasise that Smith claimed to have made his notes of his observations at the crop site at 5.15 pm on 24 November 2000.  They contend that the evidence as a whole requires a rejection of Smith's evidence on this point;[6] if he has misled the court on the point, the remainder of his evidence must be questionable. 

[44]  These and other inconsistencies in the police evidence were highlighted to the jury by her Honour.  The defence contentions were clearly and fairly explained.  It was up to the jury to determine when Smith made the lengthy notes and whether, if he completed them later that evening (but before 9.00 pm when the next entry was made), that otherwise affected his credibility and reliability.  This was a major issue at trial because the case against Dowling depended on Smith's evidence and was also important in the strong case against Rodgers.  The jury's verdict demonstrates that they accepted Smith's evidence as honest and reliable, a course which was plainly open to them.

[45]  Dowling emphasises that there was a discrepancy on the evidence as to which police officer emptied the sack containing the water bottles, on one of which were his fingerprints, and that this evidence should not have been accepted.  He contends the water bottle with his fingerprint was the one he took with him that day and was not at the site beforehand.  Dowling did not give evidence.  The jury were entitled to accept the relevant admissible evidence that Dowling's fingerprints were found on a bottle at the site prior to 24 November; if so, the evidence strengthened the case against him; it certainly does not make the jury verdict unreasonable.

[46]  Most of the evidentiary matters raised by both appellants were canvassed at trial and summarised by her Honour for the jury.  As my earlier summation of the evidence demonstrates, if the jury accepted Smith's evidence, as they were entitled to do and, by their verdict, plainly did, the case against both appellants was compelling.  The matters raised by the appellants do not have the effect, either alone or in combination, of rendering the jury's verdict unreasonable. 

[47]  Both appellants' appeals against conviction should be dismissed.

Rodgers' application for leave to appeal against sentence

[48]  In sentencing, her Honour found that the jury accepted the evidence of Smith; that the crop was well established, under expansion and with watering arrangements in place; there were 804 plants weighing 17.37 kilograms with the roots removed; the crop ranged from recently planted seedlings to 60 cm high plants and appeared healthy; it was for a commercial purpose; there was no suggestion that Rodgers was a user of cannabis; Rodgers was the proprietor; it was an exacerbating circumstance that he was carrying a gun and was apparently prepared to use it, at least to the extent of drawing it.  Her Honour noted Rodgers' lack of remorse and regarded him as the main player.  These findings were consistent with the jury verdict and were both open and unsurprising.

[49]  Rodgers had an extensive criminal history from 1962 to 1972 which included offences of dishonesty; possessing concealable firearms; possession of property suspected of being stolen; more significantly, in 1971 robbery in company with personal violence for which he was sentenced to five years imprisonment, suspended after serving three years and break enter and steal for which he was sentenced to 18 months imprisonment; in 1972, stealing, for which he was sentenced to 2.5 years imprisonment and conspiracy for which he was sentenced to 12 months cumulative imprisonment.  Rodgers was 62 years old at sentence.  His wife attends the RBH Cardiology outpatients clinic and has significant health problems.

[50]  In Applewaite and Jones[7] this Court reviewed the range of penalties for varying factual situations involving the production of cannabis. That review clearly demonstrates that for a cultivation of this size by a mature offender with a significant criminal history and without the mitigating benefit of cooperation with the authorities or a plea of guilty, the sentence imposed here was moderate.  It is by no means manifestly excessive.  The application for leave to appeal against sentence should be refused.

Orders:

In Rodgers' appeal (CA 179 of 2002): appeal against conviction dismissed; application for leave to appeal against sentence refused.

In Dowling's appeal (CA No 200 of 2002): appeal against conviction dismissed.

[51]  HELMAN J:  I agree with the orders proposed by the President and with her reasons.

[52]  PHILIPPIDES J:  I agree with the reasons of McMurdo P and with the orders proposed.