R v Lyle[2013] QCA 293

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree with the reasons of Philippides J and with the orders she proposes.

[2] GOTTERSON JA:  I agree with the orders proposed by Philippides J and with the reasons given by her Honour.

[3] PHILIPPIDES J:  The applicant was sentenced on 14 May 2013 on his plea to one count of producing a dangerous drug in excess of 500 grams and one count of possessing a thing used in connection with producing a dangerous drug in excess of 500 grams.  He seeks leave to appeal against the sentences imposed in respect of each count of six months imprisonment with immediate parole release on the ground that the sentences were manifestly excessive.

Circumstances of the offences

[4] The circumstances of the offences are that on 4 September 2012, police executed a search warrant on the applicant’s property.  They located a hydroponic set-up complete with lighting, fans and watering system attached in a large locked shed at the rear of the property.  At the front of the shed in the hydroponic set-up, three large cannabis plants were growing (having a weight of 10.47 kilograms).  The plants were budding and were well taken care of.  There were also five smaller cannabis plants growing in pots in the shed.  A quantity of chemicals and fertilisers for use in the production process were also located.  The cannabis located weighed a total of 14.77 kilograms with roots removed.  This included 3.3 kilograms of loose cannabis that was also located.

[5] The applicant admitted that the plants were his but declined to take part in an electronically recorded interview.

[6] The Crown did not allege a commercial intent in relation to the production, it being accepted that the cannabis was for personal use.

Submissions before the sentencing judge

[7] The Crown contended the appropriate sentence, given the seriousness of the offending was a term of imprisonment of between six to nine months, wholly suspended or with immediate parole release.  In that regard, reliance was placed on the decisions of R v Armstrong [2007] QCA 427 and R v Tarabay [1998] QCA 317.

[8] The applicant’s counsel urged that a fine or community based order should be imposed and placed emphasis on the decision of R v Toohey [2004] QCA 388, R v McDonald [1994] QCA 569 and R v Blakers; Ex parte Attorney-General (Qld) [1997] QCA 79.  While it was accepted that there was a significant weight of cannabis, the applicant’s counsel submitted that its yield of usable cannabis was low – out of 10 kilograms of total weight the applicant would receive less than one kilogram of useable cannabis which, at the rate he was using the drug, would supply him for almost a year.

[9] The applicant also submitted that no conviction be recorded largely because of the applicant’s employment.  In making that submission counsel for the applicant stated that the applicant was in the process of applying for the job of leading hand with his employer and that it was understood that a background and criminal history check would be required.

Sentencing remarks

[10] In imposing sentence, the learned sentencing judge noted that the applicant was cannabis dependant or cannabis addicted and that the plants were for his own use.  The applicant was hoping the production would provide approximately one year’s worth of cannabis.  His Honour observed that it was quite apparent from the photographic exhibits that the applicant had gone to much time, effort and expense in setting up the shed for the purposes of the illicit undertaking.  The plants, while not great in number, were well tended and well cared for, demonstrating a clear degree of attention on the applicant’s part.

[11] The sentencing judge referred to the applicant’s personal circumstances.  The applicant was 34 years of age when he committed the offences and 35 when sentenced.  He had no prior convictions.  He was married with two very young children and had a good work history.  He was currently employed as a service locator or general labourer with a company involved in the gas industry.  The applicant had suffered from an addiction to cannabis for some time, but since his apprehension had sought counselling for cannabis addiction, and had undergone urine tests on three occasions which returned negative results.

[12] The sentencing judge noted the competing submissions made by counsel.  The sentencing judge observed that the offending was serious offending involving a large quantity of cannabis that was attributable to the applicant’s efforts, notwithstanding that there were only eight plants.  The plants were still growing and the applicant clearly intended to grow them further.

[13] His Honour noted the comparative sentences suggested a wide sentencing range.  His Honour determined that a term of imprisonment was appropriate, given the serious nature of the offence, the weight of the plants and the nature of the set-up involving time, expense and attention and imposed a term of six months with immediate parole release.  His Honour stated that he took into account the applicant’s plea of guilty in imposing sentence.

Submissions on appeal

[14] Although counsel for the applicant did submit before the sentencing judge that he did not accept that the range for the offending extended to a period of imprisonment, albeit wholly suspended or with immediate release on parole, I note that counsel did also appear to retreat from that position.  In any event the applicant now submits that the sentence imposed was manifestly excessive in that the sentencing judge placed too much emphasis on what was referred to as the serious aspects of the offending and failed to give sufficient regard to the applicant’s mitigating factors.  These were identified as follows.  There was no commercial element to the offending.  The applicant had no prior criminal history.  The production was solely for personal use.  The applicant was an otherwise responsible contributing member of society.  The applicant had taken significant steps to rehabilitate himself and escape his cannabis addiction.  The applicant also submitted that the decisions of R v Armstrong [2007] QCA 427 and R v Tarabay [1998] QCA 317 relied on did not support a range of six to nine months imprisonment as appropriate for this case nor the sentence imposed.  On behalf of the applicant it was contended that the appropriate sentence was the imposition of a fine or community based order and that no conviction should be recorded.

Discussion

[15] In R v Armstrong [2007] QCA 427 a sentence of 12 months imprisonment with immediate parole release for production of the dangerous drug cannabis sativa in a quantity in excess of 500 grams, with community service for summary offences, was upheld on appeal.  As in the present case, there was a plea of guilty and efforts at rehabilitation.  However, that case was a more serious example of offending than the present case, given that Armstrong had a prior conviction for drug offending (possession of cannabis) and the production charge concerned “a potentially considerable quantity of cannabis” with some 30 plants growing across two hydroponic gardens and several bedrooms.

[16] In R v Tarabay [1998] QCA 317 a sentence of two years six months suspended after six months for five years was imposed at first instance in respect of a count of producing cannabis sativa in a quantity in excess of 500 grams.  There were also a count of possession and a summary offence.  Tarabay had taken a six month lease on a house for the purpose of establishing a marijuana growing operation and the production was of a sophisticated nature, involving 79 plants with a total weight of cannabis and plant material of over six kilograms.  Tarabay also had a prior criminal history for assault, breaking, entering and stealing, and opening false bank accounts which attracted non-custodial sentences and also received a term of imprisonment of six months suspended for 12 months for breach of a community service order.  The appeal was largely concerned with the issue of commerciality.  Although the prosecution had contended at sentence that there was no commercial element, the sentencing judge sentenced on the basis of a contrary finding.  On appeal it was held that, while it was improbable that there was no commercial element, it was not impossible, and the court was therefore obliged to re-sentence on the basis of a non‑commercial production.  Tarabay had served two months and two weeks.[1]  On appeal, the sentence imposed in respect of each count was one of two years imprisonment suspended forthwith and operational for five years.  Even allowing that the sentence was imposed for a non‑commercial production, there were clearly more serious aspects to the offending in Tarabay than in the present case, both in terms of the nature of the production in that case and the offender’s criminal history.

[17] R v Toohey [2004] QCA 388 concerned two plants, with no hydroponic set-up involved.  The two plants which were large (over eight feet tall and together weighing 10 kilograms) had produced 98.9 grams of harvested material. A fine of $2,500 was imposed with 12 months to pay, and three months imprisonment imposed in default of payment.  The offender was a cannabis user who was growing the cannabis for his own use.  Although he had a prior old history, Davies JA (with whom the other members of the court agreed) stated it was inappropriate to give any significant weight to it in imposing sentence and, in upholding the sentence imposed, described it as moderate.

[18] R v Blakers; Ex parte Attorney-General (Qld) [1997] QCA 79 was an Attorney-General’s appeal which turned on the issue of commerciality.  The production charge there related to plants and seedlings growing in an underground bunker at the respondent’s house.  There was also a possession charge which related to a small quantity of seeds found in a bedroom dresser.  A far more sophisticated operation was involved than in the present case, with over 84 mature plants and 140 seedlings involved, with the total weight of the cannabis being some 28.6 kilograms.  The offender, who was in his 30s, had no prior convictions.  The Court of Appeal declined to interfere with the sentencing judge’s finding that a commercial purpose had not been established in respect of the production charge and that the plants were produced for the sole purpose of ensuring a continuing supply into the future.  The sentences imposed of 240 hours community service and three years probation were not disturbed.

[19] The decisions of Armstrong and Tarabay were as mentioned more serious cases of offending than the present case and involved more extensive production by offenders with a criminal history.  Those decisions and Toohey and Blakers, indicate that the sentences imposed in the present case were manifestly excessive and did not have sufficient regard to the applicant’s mitigating factors, including the plea of guilty, no prior criminal history and efforts at rehabilitation since the offending.  The sentencing discretion accordingly is required to be exercised afresh.  In my view, the imposition of a significant fine of $3,000 is appropriate in respect of the production count.  No material was placed before the Court that a conviction would or would be likely to jeopardise the applicant’s current employment.  The highest that it was put was that it may impact his employment.  In those circumstances, I would not be inclined to exercise the discretion so as to not record a conviction.

Orders

[20] The orders that I would make are that

1. the application to appeal be granted;

2. the sentences imposed on 14 May 2013 be set aside and in lieu thereof:

(a) in respect of the production count, a fine of $3,000 be imposed with 12 months to pay and in default three months imprisonment with a conviction being recorded.

(b) in respect of the possession count, a conviction be recorded with no further penalty being imposed.