R v Foster[2017] QCA 183

COURT OF APPEAL

SOFRONOFF P

PHILIPPIDES JA

FLANAGAN J

CA No 89 of 2017

DC No 1797 of 2016

DC No 297 of 2017

THE QUEEN

v

FOSTER, Adam Peter Applicant

BRISBANE

FRIDAY, 25 AUGUST 2017

JUDGMENT

SOFRONOFF P:  This is an application for leave to appeal against sentence.  The applicant was convicted on his pleas of guilty to five counts.  Count 1 was that he unlawfully produced the dangerous drug cannabis; the learned District Court judge sentenced the applicant to a term of imprisonment of 12 months.  Count 2 was a charge of unlawfully supplying a dangerous drug, cannabis, to another person; the sentence was one of imprisonment for nine months.  Count 3 was a charge of possession of extensive equipment used for the production of a cannabis crop; the applicant was sentenced to a term of imprisonment of six months.  Count 4 was a charge that the applicant unlawfully had in his possession a dangerous drug, Stanozolol; the applicant was sentenced to a term of imprisonment of three months.  Count 5 was a charge of possession of instructions for producing a dangerous drug, cannabis; the applicant was sentenced to a term of imprisonment of three months.  The applicant was also charged with three summary offences relating to his possession of a rifle, ammunition for that rifle, and certain utensils that had been used for the consumption of drugs.  It is not necessary to mention the summary offences further.

The applicant owned a house.  He agreed to permit another man, Daniel Heazlewood, to move into his house in order to use a room to grow cannabis.  The equipment used to produce cannabis, which was the subject of count 3, belonged to Heazlewood.  Heazlewood moved into the applicant’s house to set up his equipment with which to grow his crop.  The extent of the applicant’s assistance in this project was to cover a window in the room that was being used for the cultivation with aluminium foil.  It was Heazlewood who tended to the crop.  The arrangement between the applicant and Heazlewood was that Heazlewood would pay rent and would reimburse any costs incurred by the applicant in the conduct of this project by Heazlewood.  There were expected to be extra costs incurred by the applicant in relation to electricity.

Heazlewood’s first crop failed; the second crop was successful.  According to the applicant’s admissions to police, two to three pounds of cannabis were produced.  Heazlewood sold this and received about $10,000, half of which he paid to the applicant, pursuant to the arrangement between them, but which did not entirely discharge the debt which Heazlewood owed to the applicant.

Heazlewood had been the subject of interest to the police in relation to a murder investigation, and for this reason, they had engaged in electronic surveillance of him.  From that source, they formed the view that the applicant and Heazlewood were producing cannabis in the applicant’s house.

Upon his arrest, the applicant voluntarily participated in a record of interview.  He made what the learned sentencing judge described as full and frank admissions.  Although the police became aware from their own resources that the production was being undertaken, and the offence of cultivation was being committed, it was the applicant’s own admissions that gave rise to the charges against him relating to the produce of that enterprise having been sold; it was his admissions that revealed the amounts paid and how the money had been used.  It was through his own statements that his actual involvement was laid bare.

The applicant was 27 or 28 years old at the time of the offence; he is now 30 years old.  He has no criminal history at all, and, as the learned sentencing judge put it, he is someone who has otherwise lived an unblemished life.  He has held employment.  He was able to purchase a house and to secure a mortgage for that purpose.  The sentencing judge also accepted that the applicant had been, to a degree, intimidated into accommodating Heazlewood, and that he was, “to some extent scared for [his] own safety.”

On sentence, the applicant tendered character references from two of his acquaintances, each of whom said that he was the kind of person who finds it hard to refuse people, and one of whom said that Heazlewood had a habit of being manipulative, and of manipulating the applicant and taking advantage of him by asking for money and favours.

Nevertheless, his Honour concluded that a sentence of actual incarceration was called for.  His Honour came to this view because he found that there was a “commercial element” in the offending, and that that feature was one that rendered a sentence of actual incarceration necessary.

The learned sentencing judge was referred to cases said to be comparable.  The first was R v Armstrong [2007] QCA 427.  Armstrong had been sentenced to 12 months’ imprisonment with an immediate release on parole.  He and his co-accused had put together an indoor hydroponic cannabis plantation.  He was sentenced on the basis that there was no evidence to show that there was any commercial intent on his part.  Armstrong had a good work history, and the sentencing judge accepted that he had ceased using cannabis.  An application for leave to appeal against sentence was dismissed.

In R v Tarabay [1998] QCA 317, the appellant was a 24 year old who had been convicted of three offences relating to cannabis, one of them involving production.  He was sentenced to a term of imprisonment of two years and six months, to be suspended after six months.  He had no previous drug offences.  The applicant had leased a house for the purpose of establishing his cultivation operation.  That cultivation was extensive.  He had pleaded guilty to an ex officio indictment, and had cooperated with police.  The prosecution did not contend that the production had any commercial element; however, the judge refused to accept the Crown position.  The applicant was sentenced upon the basis that there had been a commercial purpose to his offending.  This was held to have been in error.  The Court of Appeal set aside the sentences that had been imposed, and instead imposed a sentence of two years’ imprisonment, to be suspended immediately for an operational period of five years.

In R v Applewaite & Jones [1996] QCA 533, the applicant had been sentenced to 18 months’ imprisonment after being convicted by a jury of producing cannabis.  The production was established in a bush camp, and comprised of the cultivation of hundreds of cannabis seedlings.  McPherson JA and Thomas J delivered a joint judgment in which they analysed the considerations that were relevant to sentencing in cases of the cultivation of cannabis.  Their Honours concluded that the main factors which influenced the level of sentence were:

1. The size of the plantation, the sophistication of the project and its potential for profit.
2. Whether the production is for commercial gain or [for the offender’s] own use.
3. The planning involved, the professionalism, and the degree of criminality or wickedness which is discernible.
4. Whether the offender is a principal, or (scaling downwards) a profit-sharer, paid worker, or mere peripheral helper.
5. The period over which the offender has been engaged in the criminal enterprise.
6. Whether the offender has prior convictions, especially of a similar nature.  Obviously a prior conviction for production or supply is more relevant than one of possession.
7. Special factors common to most sentencing procedures, such as assistance to the police, early plea, young offender [and so on].^[1]

Their Honours also observed that the degree of commercial purpose seemed to be an important factor discernible from sentences imposed by Supreme Court Judges at first instance.  However, their Honours observed that non-custodial sentences had been imposed even in cases involving the cultivation of between two and three hundred plants for commercial purposes, while similar cases had also resulted in terms of custody.  Their Honours said that it was quite impossible to reconcile these conflicting cases.

In respect of cases decided by the Court of Appeal, their Honours observed that it was fairly clear that relatively light sentences (including sometimes suspended sentences) had been given mainly when the offender was “on the very periphery of the plan” of commercial production, or had “very limited involvement”, or was a “minor figure”, or where the production was substantially for the offender’s own use.

None of this should be surprising, because, leaving aside other elements that inform a sentence, the moral culpability of an offender is always a dominant factor.  Commercial cultivation on a large scale usually involves moral culpability of a much higher order than cultivations for one’s own use or cultivation for commercial purposes in respect of which the offender has only a limited involvement or interest.  It follows that describing an offence merely as one with a “commercial element” is not helpful in reasoning towards an appropriate sentence.  Rather, if cultivation was undertaken for monetary reward, the question arises as to the relevant offender’s personal culpability in respect of the production of drugs for profit.  In addition, the other factors remain relevant to be considered as they always are on sentence.  In my view, the cases cited by the prosecution at first instance in this matter demonstrate that this is so.

It appears that the learned sentencing judge erred by concluding that the commerciality of Heazlewood’s production, which the applicant permitted in the way that has been described, rendered a custodial sentence necessary.  In my view, it was not.  The culpability of the applicant was low, despite the fact that the culpability of Heazlewood was high.  For that reason, the exercise of discretion miscarried, and it is necessary to resentence the applicant.

The heart of the matter is that on the basis of the uncontested facts, the applicant’s involvement in Heazlewood’s plan was by way of acquiescence.  It is true that he put foil on the window to prevent discovery of the plantation; that indicates no more than what is to be expected from the fact that cannabis was going to be produced in his home with his permission and he did not want the authorities to find out.  Otherwise, he only expected to be paid some rent, which it is not suggested was high or based upon the amount of profits to be derived by Heazlewood, and the source of which need not have been the drug money anyway, and to be reimbursed his expenses, a matter that does not involve personal profit.

It is significant that the applicant is a man with no previous convictions of any kind, and who had, until these offences were committed by him, lived a blameless life.  It is relevant that, to some extent which is unknown, his acquiescence was won by the ability of Heazlewood to intimidate or manipulate him.  In my respectful opinion, the applicant’s culpability was low.  That is reinforced by his immediate cooperation with police and his early plea of guilty.

In those circumstances, in my respectful opinion, it is sufficient to denounce the offences of which he was convicted on his plea of guilty by sentencing the applicant to the terms of imprisonment to which his Honour had sentenced him; however, such sentences should be suspended immediately for an operational period of two years.  I would therefore grant leave to appeal against the sentence.  I would allow the appeal.

I would set aside the order made on 27 April 2017 that the terms of imprisonment be suspended after serving a period of three months, and the defendant must not commit another offence punishable by imprisonment within a period of two years if the defendant is to avoid being dealt with for the suspended term of imprisonment.

I would order that the terms of imprisonment be suspended after serving a period of 15 days’ imprisonment, which has already been served, and the defendant must not commit another offence punishable by imprisonment within a period of two years if the defendant is to avoid being dealt with for the suspended term of imprisonment.

PHILIPPIDES JA:  I agree.

FLANAGAN J:  I agree.

SOFRONOFF P:  There will be orders in those terms.