R v Armstrong[2007] QCA 427

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Jerrard JA.

[2]  JERRARD JA:  On 3 August 2007 Mr Armstrong pleaded guilty to a count charging him jointly with one Stephen Pitt with the unlawful production of the dangerous drug cannabis sativa between 30 May 2006 and 20 August 2006 at Brisbane, in a quantity that exceeded 500 grams.  Both men were sentenced to 12 months imprisonment, and the learned judge fixed the date of sentence (3 August 2007) as the parole release date.  He also ordered that each perform unpaid community service in respect of some summary offences to which they also pleaded guilty.  Mr Armstrong has sought leave to appeal against his sentence alleging the head sentence was manifestly excessive, and should be reduced to four months imprisonment.

[3] The agreed facts included that on 20 August 2006 police executed a search warrant on Mr Armstrong’s dwelling, and located two hydroponic gardens in one bedroom where cannabis plants were growing, and other bedrooms with growing cannabis seedlings.  Additionally, some green leafy material was located.  The learned sentencing judge was informed that there was no evidence to show that there was any variety of commercial intent on the part of either defendant, although they had 30 growing plants between them.  The sentencing judge was satisfied that Mr Armstrong had a good work history, and was told that Mr Armstrong had voluntarily ceased consumption of cannabis, and had placed himself on a drug education and relapse prevention program with the Alcohol, Tobacco and Other Drugs Service conducted by the Queensland Health Department.  Mr Armstrong had a prior conviction incurred on 3 June 1999 for possessing dangerous drugs (cannabis).  His counsel submitted that a wholly suspended sentence was open to the learned judge, but submitted a fine would be a more appropriate penalty.

[4] The learned judge remarked, when passing sentence, that cannabis was a dangerous drug because it was habituating, and bad for personal health, and that the community has people thrown upon its resources when they become cannabis addicts.  He noted that Mr Armstrong had pleaded guilty by way of an ex-officio indictment, and imposed the sentence of 12 months imprisonment with immediate release on parole. 

[5] Mr Armstrong’s counsel contends on this application that in what he submitted were comparable cases of “own use” production of cannabis, shorter head sentences or fines were usually imposed.  That may be so, but those shorter head sentences usually required or resulted in some actual term in custody.  Mr Armstrong was not required to do that by the sentence imposed, and in those circumstances he has not established that the 12 months with immediate release was a manifestly excessive penalty for the production of a potentially considerable quantity of cannabis. 

[6] It was a longer sentence than those imposed in some cases of comparable criminality, but there was no actual imprisonment, as a component, provided that Mr Armstrong does not re-offend.  Mr Byrne, for the respondent Director, referred the Court to the sentences upheld in R v Carpenter (1993) and R v Tarabay [1998] QCA 317.  The sentence imposed in Carpenter appears in a schedule annexed to the judgment of this Court in R v Applewaite and Jones (1996) 90 Crim R 167 at 177.  That schedule records that Mr Carpenter was convicted in the Supreme Court at Cairns on 2 April 1993 of having grown 450 grams of cannabis plants on a rented semi-rural property, with a possibility of selling it.  He was 45 years old with no prior convictions and pleaded guilty.  His sentence was of nine months imprisonment, suspended for one and a half years, and of three months imprisonment for a separate offence suspended for one and a half.  His head sentence was comparable to that imposed on Mr Armstrong. 

[7] In Tarabay that offender was convicted of three offences relating to cannabis, one being production of it in excess of 500 grams, and the others being offences of possession of that cannabis and possession of things used in connection with the commission of a drug offence. He was sentenced when aged 24 to two years and six months imprisonment suspended after six months.  He was found in possession of 79 plants, with a total weight of cannabis and plant material of over 6 kilograms.  The prosecution had contended before the learned sentencing judge that there were no commercial elements at all, but the judge sentenced on a basis of a finding contrary to that confession, namely that there was a commercial purpose.  This Court held that while it was improbable there was none, it was not impossible, and for that reason set aside the sentences imposed and ordered instead a sentence of two years suspended for five years, and suspended forthwith.  The judgment records that that offender had by then spent some two months and two weeks in prison.  His head sentence was longer than Mr Armstrong’s and had some actual imprisonment.

[8] I would dismiss the application.

[9]  DAUBNEY J: I agree, for the reasons given by Jerrard JA, that this application for leave to appeal against sentence should be dismissed.