R v Lindsay & Lindsay[2013] QCA 381

SUPREME COURT OF QUEENSLAND

[1] MORRISON JA:  I agree with the reasons of A Lyons J and the orders her Honour proposes.

[2] ANN LYONS J:  Howard Kerry Lindsay and his son Anthony Howard Lindsay grew extensive plots of cannabis in thick bushland on properties they owned at Mount Charlton near Mackay.  They were both sentenced by Henry J on 15 May 2013 to terms of imprisonment for a number of drug offences including the production and possession of cannabis in excess of 500 grams.  Howard Lindsay was charged in relation to two sets of offences, the first of which had occurred in 2009 and the second in 2012.  Anthony Lindsay was charged in relation to offences in 2012 only.

[3] Each applicant seeks leave to appeal against the sentences imposed, essentially on the basis that the sentences were manifestly excessive.  The applicant Anthony Lindsay was given leave at the hearing to add a further ground of appeal that his sentence lacked parity with that imposed upon his father.

Circumstances of the offences

The 2009 offences

[4] The schedule of facts in relation to the 2009 offences indicated that police had, for some time, been conducting video surveillance of Howard Lindsay’s 287.1 hectare property which was located in bushland at Mount Charlton.  In his sentencing remarks, the learned sentencing judge referred to the large amount of cannabis found during a covert search of a shed on the property.  His Honour had viewed the videotape which had been taken and noted that there appeared to be “a thick luscious carpet of quality cannabis spread out over the mezzanine level of the shed which, I am informed, was about 10 metres by 10 metres in dimension.  Certainly it appeared to be a large floor surface from the videotape, and it follows there was a very, very significant quantity of cannabis there.”[1]

[5] His Honour also observed that it appeared to be cannabis of some “quality” as it was not left over leaf litter or stalk but rather the end of the plant that had been harvested and was in the process of being dried preparatory to its packaging.  His Honour noted that in a search the following day, police discovered that the drying cannabis in the shed was “gone”.  His Honour noted that a subsequent search located 13 cannabis growing plots, with the largest plot being the size of a basketball court, and that some were surrounded by barbed wire.  His Honour also referred to the fact that the sites were irrigated through raised sprinkler systems which were connected to a dam on the property with petrol powered water pumps.  Multiple crop sites were hidden within bushland and there were vehicle tracks linking all of the plots.  A large shed was equipped with an industrial sized exhaust fan and was being used at the site to dry the cannabis.  A large industrial Cryovac machine was also located by police together with other items which his Honour considered demonstrated a large scale operation.

[6] The sites were secreted in thick bushland and his Honour indicated that the sites had already been used, which he considered was consistent with the harvested product in the shed.  His Honour accepted that the various cannabis seedlings emerging from a number of the sites were consistent with regrowth.  He considered that all of the factual matters “reinforce the inevitable conclusion that this was a sophisticated commercial production operation.”[2]

[7] The schedule also indicated that during the search, documents were found suggesting that the family had a large quantity of unsourced income and that there had been many large cash payments made in relation to purchases and improvements on the property.  A financial analysis undertaken by police revealed approximately $1.9 million of unsourced income over the preceding years in relation to the property.  His Honour referred to the financial analysis and the amount of unsourced income that was estimated but ultimately considered that, at best, that evidence simply provided some general confirmation that it was a commercially motivated production and that it was obviously a very successful production.

The 2012 offences

[8] Both Howard and Anthony Lindsay are charged with the second set of offences in 2012 which essentially involved reusing the same crop areas.  Ten crop sites with a total of 1,514 cannabis plants were found on this occasion.  Once again, the crop sites were supported by irrigation, water tanks and a sprinkler system.

[9] The schedule of facts indicated that the cannabis crops had been detected by aerial surveillance from a helicopter.  Police landed the helicopter and as they moved through the property, they found a number of cannabis crops and a quantity of dried packaged cannabis.  However, after the police moved towards the house site, they returned to find that about 250 cannabis seedlings had been removed from the site and that the dried cannabis, which had been earlier seen located under a tarp near a creek, which contained six, one pound bags of cannabis plus a pound of loose cannabis, had been removed.

[10] In relation to these offences, his Honour referred to the removal of some significant items including some of the dried cannabis and numerous cannabis plants.  His Honour noted that, “it is quite obvious that an offender, probably Howard given the police observations of him, was busy at work trying to remove some of the product before the police descended and embarked on a more thorough search and discovery.”[3]  Police were able to confirm that numerous cannabis plants had been removed from other crop sites of the property by reviewing the photographs initially taken from the helicopter.  Accordingly, the total weight of the confiscated drugs was only three kilograms given the removal of some of the crop prior to its confiscation.

[11] The schedule of facts indicated that the plants in the 2012 crop had a potential street value of over $1 million.  During the search, police also located a one ton bag of lime, bags of fertiliser, a rotary hoe, a water timer and other equipment.  Ninety seven cannabis seedlings were also found underneath a vehicle registered to Anthony Lindsay.

[12] In this regard, however, the learned sentencing judge appropriately noted that the estimated street value was obviously a matter of potential rather than reality.  His Honour also took into account the fact that the 2012 production charges were based on evidence that indicated that the production was in its embryonic stages and that there was no evidence of any actual high level quantity of cannabis having been produced in contrast to the 2009 facts.  Despite the fact that it was in an embryonic stage, his Honour considered that, “[t]his production involved a quite sophisticated, well organised and professional approach.  It was undoubtedly calculated at achieving very significant commercial gain.  In and of itself it is, again, a serious example of production.”[4]

The applicant Howard Kerry Lindsay

[13] In relation to the 2009 production charge, his Honour sentenced Howard Lindsay to four years imprisonment.  In relation to the 2012 production charge, his Honour imposed a penalty of three years, which was to be served cumulatively on the 2009 sentence.  The details of the charges and sentences imposed on Howard Kerry Lindsay in relation to those two sets of offences are as follows:

[14] In imposing those sentences, his Honour noted that the matter had been listed for trial but the applicant pleaded guilty once the Crown discontinued some of the charges on the 2009 Indictment.  His Honour took the applicant’s plea, therefore, as a timely plea.  It was made clear that the sentence imposed in relation to the 2012 offences was to be served cumulatively on the 2009 offences.  Accordingly, the effective head sentence was a term of imprisonment of seven years with a parole eligibility date fixed at 15 November 2015, which was after two and a half years.

[15] In imposing those sentences, the learned sentencing judge also had to take into account the fact that the 2009 offences breached a sentence imposed in 2004 of five years, suspended after 20 months, for a similar offence of production of cannabis in 2002 involving in excess of 100 plants.  The learned sentencing judge ordered that the applicant serve the remaining portion of that sentence in full but ordered that it be served concurrently with the other sentences he imposed.

[16] In coming to the appropriate penalty, his Honour noted that, given Howard Lindsay was 65 years of age, any sentence imposed was not to be too crushing.  His Honour also took into account his farming skills as well as the fact that he had seen active service in Vietnam and had been wounded by a grenade.  He also noted that Howard Lindsay and his wife assisted with the care of their grandchildren, including Anthony’s son who had been treated for a brain tumour and who had some ongoing developmental difficulties.  His Honour considered the applicant’s criminal history which stretched back quite a number of years and indicated that many of the offences were old but, significantly, given the timing of the 2009 offences, Howard Lindsay was still the subject of the suspended sentence imposed in 2004 when he committed the 2009 offences but noted it was towards the tail end of the period and that he had not otherwise offended.  He also emphasised that the 2004 sentence related to offending in 2002.

[17] Significantly, however, his Honour considered that personal deterrence was a real factor, stating, “[y]ou obviously decided the monetary gain to be achieved warranted the risk of detection and punishment.”[5]  His Honour continued:

“It is self evident that, not just general, but personal deterrence is an influential consideration in your case. The public and you must know through sentences imposed for activity of this kind that on a cost benefit analysis the money to be made is not worth the risk of the significant punishment which will follow in the event of detection and conviction. That equation on sentence is, in my view, unavoidable.”[6]

[18] His Honour outlined the cases to which he had been referred including the Court of Appeal decisions of R v Applewaite & Jones [1996] QCA 533; R v Vincent; ex parte A-G [2000] QCA 250; R v Regazzoli [2000] QCA 326; R v Bozzetto [2002] QCA 189; R v Mrsic; ex parte A-G (Qld) [2005] QCA 349; R v Brienza [2010] QCA 15; and R v Gatti [2013] QCA 97.[7]  His Honour also referred to R v Lindsay [2004] QCA 444 which was the applicant’s unsuccessful appeal against his sentence in 2004.

[19] His Honour concluded that it was an appropriate case to impose cumulative sentences for the two counts of production in 2009 and in 2012.  His Honour noted however, that he would “reduce each of the head sentences to avoid their combined effect being too crushing”.[8]  His Honour noted that the prosecution submitted for an overall head sentence of eight years and the defence for five years.

[20] His Honour concluded that for the 2009 production, the appropriate head sentence was around the six year mark, but indicated he would impose a sentence of four years.  In relation to the 2012 production, his Honour considered the appropriate sentence was four and a half years but indicated that he would impose a sentence of three years.

[21] Accordingly, for the 2009 offending, a penalty of four years was imposed for the production offence but no further penalty was imposed in relation to the possession of cannabis offence in count 2.  In relation to the possession of things in count 3, Howard Lindsay was sentenced to two years imprisonment to be served concurrently.  In relation to the 2012 production, a period of three years was imposed but no penalty was imposed in relation to the 2012 possession.  That combined to give an overall sentence of seven years.  His Honour noted that ordinarily the applicant would be entitled to apply for parole after half the period, at three and a half years, but given the plea of guilty, there should be consideration for release on parole after two and a half years.

[22] The applicant argues that the sentence imposed was manifestly excessive.  In particular, it is argued that the learned sentencing judge erred in concluding that the production in 2012 “involved a quite sophisticated, well organised and professional approach”.[9]  In my view, this argument cannot be sustained on the evidence.  It cannot be ignored that a large quantity of dried cannabis as well as hundreds of seedlings were removed before confiscation by police.  As it was, in excess of 1,500 plants were actually located together with a one ton bag of lime and numerous bags of fertiliser.  An “industrial sized” exhaust fan was found along with an “industrial sized” Cryovac machine and scales.

[23] In my view, his Honour’s conclusion is supported by the factual circumstances which I have outlined above.  It is impossible to ignore the scale of the proposed production and the potential profits.  The continued use of the extensive irrigation system, as well as the ongoing availability of the drying shed and the Cryovac machine for the crop when harvested, also supports such a conclusion.  The 2012 production would indeed also seem to me to bear the hallmarks of sophistication, organisation and professionalism.  As his Honour noted, “the fact that the enterprise was relatively embryonic in terms of the plant growth is really a result of the timing of police intervention, not any lack of commitment or professionalism on the part of both of you.”[10]

[24] In my view, the sentences imposed were appropriate in all of the circumstances and reflect a careful and considered approach to the facts and the sentencing principles.  His Honour carefully noted that none of the previous decisions he had been referred to were on “all fours” with the case before him.  His Honour duly considered the cases he had been referred to, but indicated that some of the cases in fact involved trafficking and commented that not all of the sentences in relation to trafficking are helpful in relation to the sentences for production and noted that some instances of trafficking are less serious than some instances of production and vice versa.  He stated that one cannot always assume that trafficking, which is generally regarded as the more serious criminal activity, will always actually involve higher criminal culpability when compared with extensive production.  He also noted that the production sentences varied significantly depending on a number matters including whether single or multiple drug sites were involved, but also noted that the number of sites was not always a reliable guide either.

[25] His Honour referred to the different types of production and indicated that sentencing patterns show that, save in the case of repeat offenders, a moderate approach is generally taken in relation to backyard production, particularly when the production is for the use of the grower.  He noted that a bush camp would attract a more serious response depending on the size of the operation and the persistence of the operators as well as the sophistication of the project.  He noted that generally, farm plantations are more ambitious than those where there was a bush production.  However, his Honour noted once again that it is difficult to generalise and that while this was a farming operation, it actually had more of the hallmarks of a bush camp style where there was a sectioning off of smaller sites obviously to avoid too large a site being too easy to detect.

[26] His Honour also referred to the difficulty in structuring the sentence given the applicant was, at the time of the 2009 offending, still on a suspended sentence and, at the time of the 2012 offending, was on bail.

[27] In my view, his Honour appropriately activated the whole of that suspended sentence and was correct in concluding that it was not unjust to do so as he ordered that sentence was to be served concurrently with the two other sentences he was intending to propose.  He indicated that in the end, Howard Lindsay would not be serving extra time because of it.  Such an approach clearly recognised the significance of the applicant’s offending but also took into account the totality of the offending.  His Honour correctly considered that such an approach was justified as he was on bail for the 2009 offences yet, quite incorrigibly, embarked again on behaviour for which he had been previously sentenced.

[28] In my view, the sentence imposed was not excessive let alone manifestly so.  Indeed, the sentence imposed by his Honour took into account all of the relevant factual circumstances as well as all the appropriate sentencing principles.  This was a case of a repeat offender who had had three separate periods of significant commercial cannabis production and, as his Honour noted, was not deterred by the previous sentences imposed because of the extent of the financial gain available to him.  I note that in the appeal by the applicant in 2004, this Court noted that the sentence of five years imposed in that case “[fell] comfortably within the pattern of sentences imposed for roughly comparable offences”.[11]

[29] The applicant argues that the 2009 offences were not as serious as the 2004 offences, however, it would seem to me that the factual circumstances are roughly comparable given the multiple irrigated crop sites and the significant quantity of cannabis found as well as the Cryovac machine.

[30] In the circumstances, I do not consider that a starting point of six years was unreasonable.  It was clear that his Honour then reduced the sentence to four years given it was to be served cumulatively with the three year penalty imposed in relation to the  2012 offences.  In that regard, his Honour considered that the starting point should be four and a half years but, given it was to be served cumulatively, he imposed a sentence of three years.  In my view, the sentence constructed in this way was entirely appropriate and indeed reflected the overall criminality.

Anthony Howard Lindsay

[31] On 14 May 2013, Anthony Lindsay pleaded guilty to one count of production of cannabis with a circumstance of aggravation and one count of possession of cannabis with a circumstance of aggravation.  The date of the offences was 26 April 2012.  The production and possession counts related to the 2012 cannabis crop, the circumstances of which are set out above.

[32] His Honour noted that father and son were equally involved in the sophisticated, well organised and professional production but noted that there were obvious variations in the complexion of the charges faced and the individual circumstances of each applicant.  In particular, his Honour noted, “I emphasise in approaching my consideration of Anthony's sentence I have been conscious at all times of the need to avoid him being tarred with his father's more broad criminal brush.”[12]  His Honour noted that the significant difference was that Howard Lindsay was at the time of his 2012 offences on bail for his 2009 offences which had in fact breached the suspended sentence imposed in 2004.

[33] His Honour noted that Anthony Lindsay had a son with a brain tumour which had required two open skull surgeries which had an adverse impact on his brain development.  He also took into account the fact that, whilst Anthony Lindsay was normally a truck driver, he also worked on other machinery around properties doing slashing work “[b]ut with the onset of his son's illness he ceased work and he had no income for a period.  He was dependent on his father's income.  With Anthony out of work, he, I am told, succumbed to the temptation presented by embarking upon the enterprise that his father also engaged in in 2012.”[13]

[34] His Honour noted that the motivation for Anthony Lindsay’s involvement in the production had its genesis in his son’s brain tumour.  However, he appropriately stated that factors of that kind cannot overwhelm the sentencing process.  He also considered that, as Anthony was now 30 years old, he could not be considered to be a person who was “under his father’s spell”.[14]  In his Honour’s view, Anthony Lindsay became involved knowing of his father’s experience as well as his past and current activity but his Honour accepted that those circumstances presented a greater temptation than most sons are faced with in times of trouble.

[35] The learned sentencing judge noted that this applicant had only one item in his criminal history which was possession of dangerous drugs in 2003 for which he had been fined $1,000 and for which no conviction had been recorded.  He did not consider it was a matter of any material relevance.  His Honour noted that the Crown submitted for a sentence of four to five years in relation to the production charge, which he concluded was too high.  He considered the submission on behalf of the applicant, however, for two and a half years, was too low as was the contention that no actual custody needed to be served.  That submission was, his Honour stated, “in the circumstances of this case, a bold one and I reject it.”[15]  His Honour considered that a sentence of three years comfortably fell within the sound exercise of the sentencing discretion.  Significantly, however, his Honour required that only a quarter of that period be served, fixing the parole release date after nine months, which would be 15 February 2014.[16]

[36] The applicant argues that the sentence imposed of three years was manifestly excessive and that it “lacks parity with that which was imposed on his co‑offender.”[17]  It is argued that this applicant had an irrelevant and minor criminal history and yet was sentenced to three years imprisonment for the 2012 production which was the same sentence as that imposed on his father in respect of that offence.  It is argued that, as his father had a prior conviction for a more serious example of the same offence and was also being sentenced for another offence of the same type which was a more serious example of such offending and had offended both whilst on bail and in breach of a suspended sentence, the same sentence should not be imposed.  It is argued that this is an inappropriate application of the totality principle.

[37] In particular, reliance is placed on the decision in Postiglione v The Queen[18] where the High Court considered the principles of totality and parity in sentencing co‑offenders.  In particular, Kirby J stated that, “[t]he parity principle between co‑offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender.”[19]  It is argued that, in this case, the applicant has a justifiable sense of grievance at the lack of difference between the sentences given and the history and that the sentence imposed lacks parity and is manifestly excessive.

[38] Counsel argues that a period of two years imprisonment with an order for release after serving six months would be appropriate.  In my view, his Honour carefully constructed a sentence which would take into account the difficult factors he needed to consider in relation to sentencing Howard Lindsay and also this applicant’s offending.  In particular, his Honour specifically recognised this when he made the following remarks in relation to the 2012 offences:

“Each of you, I am told, was equally involved, however there are obvious variations in the complexion of charges faced and the individual circumstances of both of you, having the inevitable consequence that Anthony’s sentence today will see him released from prison significantly earlier than his father.”[20]

[39] When one considers the point at which the learned sentencing judge started in relation to Howard Lindsay, it is clear that his Honour considered that the appropriate sentence was in fact four and a half years but he imposed a sentence of three years given it was to be served cumulatively on the sentence he had already imposed in relation to the 2009 offending.  It is also clear that Anthony was given the certainty of a parole release date.  In my view, when considered in that light and given the total sentence imposed in relation to Howard Lindsay, the sentence imposed on Anthony Lindsay was entirely appropriate in the circumstances.

[40] As the High Court stated in Mill v The Queen:[21]

“The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; ‘when...cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.””

[41] In my view, the principles of totality and parity were correctly applied in the circumstances of this case given the unique factors applicable to each applicant.

[42] I would therefore refuse both applications for leave to appeal.

[43] DAUBNEY J:  I concur.