R v Turner[2023] QCA 108

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Mr Turner pleaded guilty on 1 March 2023 to producing a dangerous drug (cannabis) in excess of 500 grams (count 1), possessing things used in connection with producing a dangerous drug (count 2) and possessing a dangerous drug (cannabis) in excess of 500 grams (count 3).  He was remanded in custody on 2 March 2023 and was sentenced by the learned sentencing judge on 13 March 2023 to imprisonment of two and one-half years for count 1, 18 months for count 2 and two years for count 3.  The parole release date was fixed as 1 September 2023 after Mr Turner has served six months in custody.  The sentencing judge indicated in the sentencing remarks that there would be a declaration of 10 days’ pre-sentence custody from 2 March to 12 March 2023 (which is 11 days).  The declaration was not recorded on the indictment and therefore is not in the verdict and judgment record for Mr Turner.^[1]
2. [2]
   Mr Turner conceded that the head sentence was appropriate but challenged the length of the custodial component of the sentence.  There were two grounds relied on for the application:

1. The sentencing judge erred in fact in respect of the hardship Mr Turner would suffer in custody.
2. Alternatively, the sentencing judge failed to give appropriate weight to the hardship Mr Turner will suffer in custody and that failure caused the sentencing discretion to miscarry and renders the sentence manifestly excessive.

3. [3]
   At the conclusion of the hearing, the Court refused the application for leave to appeal against sentence with reasons to be published at a later date.

Circumstances of the offending

4. [4]
   A cannabis crop was detected growing in a State forest south of Maryborough from satellite photos and the commencement of the production was identified as 16 July 2020.  Between November 2021 and February 2022 covert cameras were set up on the vehicle access track which revealed a Toyota Land Cruiser registered to Mr Turner driving on that track approximately weekly.  Mr Turner’s sister and her partner were identified walking along the track on 28 December 2021.  Police entered the crop site on 21 January 2022.  The cannabis plants were growing inside a fenced area in fertilised garden beds and supported by a network of irrigation piping that was fed by two large above ground swimming pools that were fed by two water pumps piping from the nearby creek.  There was a campsite area nearby that had a work area, an esky, tents and other facilities.  The campsite area was covered by a tarpaulin and camouflage netting.  There was a steel wire between trees which had been used as a drying area for harvested cannabis.  An all-terrain vehicle (ATV) was parked next to the campsite and also camouflaged.  The police returned to the site on 24 February 2022 when some plants had been harvested and the campsite had been substantially dismantled.  On 8 March 2022 police again returned to the site where further harvesting or trimming had taken place.  The police seized 191 plants.  A representative sample of five plants weighed 6.4 kgs which gave an approximate weight for the seized plants (with roots and earth removed) of 244 kgs (which was the subject of count 1).  The production was particularised as occurring over a period of 20 months.  The possession of the ATV, the two water pumps, a generator and irrigation products was the subject of count 2.
5. [5]
   On 9 March 2022 police executed a search warrant at the house owned by Mr Turner and his wife.  Mr Turner’s sister and her partner were also living at the house at the time.  A large quantity of dried and drying cannabis was located throughout the house in various stages of packaging.  There was a cryovac machine.  In the bedroom of Mr Turner and his wife 17 cryovac bags each containing one pound of dry cannabis were located, as well as small bags of cannabis in the bedside table and drawers.  Dried cannabis was also located in the room occupied by Mr Turner’s sister and her partner.  Items that had been observed at the campsite were also located at the house.  The dried cannabis located at the property weighed 47.5 kgs (which was the subject of count 3).  Mr Turner participated in a field interview with police during the execution of the search warrant and made admissions.
6. [6]
   The sentencing proceeded on the basis that Mr Turner, his sister and her partner were each liable for the production and the possession pursuant to s 7(1)(a) of the Criminal Code (Qld) and that the production and possession had a commercial purpose.  The prosecutor at sentence conceded that the small amounts of cannabis in the bedside table and drawers were for personal use.

Mr Turner’s antecedents

7. [7]
   Mr Turner was 36 years old at the date of sentencing.  He had a minor criminal history and one relevant entry in 2011 for possessing a dangerous drug with a circumstance of aggravation that related to 1.3 kgs of cannabis where the sentencing proceeded on the basis it was for personal use.  A probation order was imposed for two years.
8. [8]
   Mr Turner qualified as a plasterer and worked for others and in his own business until he sustained a spinal cord injury (of unknown origin) in January 2015 at T7-T9.  It took until the end of February 2015 for Mr Turner to be diagnosed as having spinal arteriovenous malformation (AVM) for which he was then treated but he was left with neurological deficits, including significant impairment with excretory dysfunction for both bladder and bowel.  He was depressed as a result.  In February 2020, he was assessed by psychiatrist Professor Whiteford as having an adjustment disorder with depressed mood.  Seven medical reports had been tendered on behalf of Mr Turner before the sentencing judge to provide detailed information about the diagnosis, treatment and consequences of Mr Turner’s spinal cord injury.
9. [9]
   During the year prior to the sentencing, Mr Turner engaged with a counsellor for mental health support.  At the time of sentencing, Mr Turner’s chronic symptoms were daily aching, tenderness and stiffness in his lower back that could result in unsteadiness on his feet, intermittent and unpredictable sharp pain in his neck and upper back, patchy numbness in his left leg, ongoing urinary tract infections as a result of self-catheterisation four times daily, lack of bowel control and constant cramping and pain in the abdomen as a result of his bowel issues.  He had been receiving medicinal cannabis for treatment of the ongoing pain since April 2020 and had a history of taking Lyrica for assistance with leg spasms.

Evidence of Corrective Services’ capacity to manage Mr Turner’s health

10. [10]
    For the purpose of the hearing on 1 March 2023, Mr Turner’s solicitor had been unsuccessful in obtaining information from Corrective Services about the facilities and treatment that would be available to a prospective prisoner suffering from AVM.  It was not surprising that the solicitor did not get a response from Corrective Services to a hypothetical question when Corrective Services had not assessed the prisoner.
11. [11]
    The sentencing hearing was adjourned until 2 March 2023 and Mr Turner’s bail extended to enable his solicitor to contact the person at the Maryborough Correctional Centre who had been identified as able to respond to the inquiries made on Mr Turner’s behalf about the prison’s facilities and treatment for a prisoner with AVM and for the prosecution also to make like inquiries of Corrective Services.  At the resumed hearing on 2 March 2023, the prosecution tendered an information sheet from the Office for Prisoner Health and Wellbeing that dealt in general terms with the health services available to prisoners in correctional centres.  An email was also tendered from the Director of that Office who had looked at the information provided about Mr Turner and stated that he could not “see any reason as to why his needs can’t be met in a correctional centre including Maryborough Correctional Centre”.  The prosecutor was also informed by an officer from Corrective Services that Mr Turner would be assessed as part of the reception process at Maryborough Correctional Centre and that medication is managed by the Queensland Health team at the centre and administered as prescribed.  The sentencing hearing was further adjourned on 2 March 2023, so that the question of whether or not Mr Turner would get appropriate medication in custody could be resolved and Mr Turner was remanded in custody on 2 March 2023.
12. [12]
    The sentencing was not completed until 13 March 2023 when affidavits were before the sentencing judge dealing with Mr Turner’s treatment whilst on remand and the capacity for Corrective Services to deal with his medical condition.  An affidavit of Mr Turner’s solicitor sworn on 9 March 2023 was relied upon by Mr Turner and an affidavit of a legal support officer in the Office of the Director of Public Prosecutions sworn on 10 March 2023 was relied on by the respondent.  The prosecutor accepted that Mr Turner’s time in custody would be more burdensome for Mr Turner and the issue for the sentencing judge was the extent of the moderation of the custodial component of the sentence.
13. [13]
    Mr Turner’s solicitor’s affidavit recorded the difficulties Mr Turner had in getting pain medication whilst in the watchhouse and at the Maryborough Correctional Centre after he was transferred there, the inability to keep the catheters sterile prior to use, the unsatisfactory mattress in the cell and the lack of provision of a shower chair.  The affidavit relied on by the prosecutor exhibited the records from the watchhouse and also the responses from Corrective Services about the treatment of Mr Turner whilst on remand.  Those responses included that Corrective Services would supply whatever Mr Turner needed to support his daily living and a shower chair on advice from Queensland Health.  Queensland Health advised that simple analgesia is the first option for dealing with pain in prisoners and that Mr Turner must lodge a Health Service Request Form to obtain assistance/treatment in dealing with pain and that Mr Turner utilised that process in obtaining analgesia on 4, 5 and 7 March 2023.

Sentencing remarks

14. [14]
    Mr Hoare of counsel who appeared on behalf of Mr Turner before the sentencing judge and on the application in this Court had submitted to the sentencing judge that if his Honour were not satisfied that it was an appropriate case to justify immediate parole release for Mr Turner, the actual custodial component should be limited to three to four months.
15. [15]
    After referring to the circumstances of the offending and Mr Turner’s antecedents, the sentencing remarks included the following.  Mr Turner’s spinal injury creates circumstances that made his case “somewhat exceptional” and “would plainly render [his] time in custody much more onerous than an able-bodied person would suffer”.  The associated health conditions of constipation, moderate anxiety and PTSD were noted and that Mr Turner was prescribed various medications but preferred medicinal cannabis which he had successfully obtained.  The material from the Office for Prisoner Health and Wellbeing indicated that the authorities recognise their legal responsibility to ensure that Mr Turner was appropriately treated.  There had been some treatment in the short time that he had been in custody “although perhaps not entirely satisfactory” and that efforts were being made “within the confines of the system” and “how long it will take for [him] to become established in the system for [him] to be appropriately managed in accordance with [his] medical needs”.  On the basis that “there will be discomfort” for Mr Turner, that called for particular moderation.  Full credit was given for a timely plea and the cooperation by interviewing with the police immediately after the search at his home.  Mr Turner came to be involved through his association with the others but they were all equally culpable.  Mr Turner was a mature person and had a relevant criminal history.  The only factor that was quite favourable to him, aside from his former employment history and the prospect to returning to future employment in a less onerous industry, was the consideration of his medical situation.

Ground 1 – The error of fact

16. [16]
    Mr Turner submitted that on the basis of the evidence presented to the sentencing judge, the prosecution did not demonstrate that the issues confronting Mr Turner in prison would be managed, as at its highest, it demonstrated that Mr Turner would be assessed and then may receive treatment.  It was therefore submitted that the finding of the sentencing judge that Mr Turner’s medical requirements could be met in custody was not supported by the evidence.  Specific challenge was made to the description by the sentencing judge that with appropriate management in prison of Mr Turner’s medical needs “there will be discomfort”, as understating the hardship that will be suffered by Mr Turner in prison.
17. [17]
    As the sentencing judge recognised, Mr Turner’s treatment in prison whilst on remand for 11 days was “not entirely satisfactory”, as Corrective Services was becoming familiar with Mr Turner’s needs and Mr Turner was becoming familiar with the processes within the prison system for accessing medical treatment, pain medication and accommodation for his specific needs.  A better choice of word than “discomfort” would have been “hardship” but it is apparent from a fair reading of the sentencing remarks that the sentencing judge appreciated the extent of Mr Turner’s disabilities and that he would suffer hardship even if his needs were appropriately managed to the extent permitted in the prison system.  It was open on the evidence adduced by the respondent before the sentencing judge for the conclusion to be reached that Mr Turner’s medical needs would be appropriately managed within the constraints of the prison system.
18. [18]
    There was no error of fact made by the sentencing judge about the hardship that will be suffered by Mr Turner in prison.

Ground 2 – Manifestly excessive

19. [19]
    The difficulty for Mr Turner in pursuing the ground that the sentence was manifestly excessive is apparent from the submission made before the sentencing judge that, if Mr Turner must serve some period in custody, that period should be three to four months to take account of the hardship experienced by him in the custodial environment.  When the actual custodial component of the sentence was six months of a head sentence of two and one-half years, the sentence could not be said to be manifestly excessive by reference to the difference of two or three months in custody between the period that was submitted was appropriate and the period that was imposed.
20. [20]
    This is particularly so where the medical condition of Mr Turner was in existence at the time of the offending.  Although it is still a relevant matter for the purpose of sentencing, the weight to be afforded to the hardship is less where the offender engaged in the subject offending while suffering from that same condition: R v Hinton [2016] QCA 316 at [23]–[24].
21. [21]
    There was a faint suggestion made on behalf of Mr Turner that his custodial component of six months was manifestly excessive compared to the same custodial component imposed on his sister.  There was no separate ground of appeal based on parity and the record book for the application did not include all the documents tendered on behalf of Mr Turner’s sister for her sentencing.  The fact relied on by Mr Turner’s sister to keep her custodial component to a minimum was that she was a primary carer of her young granddaughter who had special needs and who lived with her.  It is not necessary to consider this argument further, as the difference of two or three months between the period in custody for Mr Turner that was submitted by his counsel as appropriate and the period that was imposed on him would not in the circumstances of his offending justify this Court varying the sentence that was imposed on Mr Turner.
22. [22]
    Mr Turner has failed to discharge the onus of showing that the sentence was manifestly excessive.

Order

23. [23]
    It is for the above reasons the order made at the conclusion of the hearing was: Application for leave to appeal against sentence refused.