Brown v Moore; Brown v Moore - [2021] TASSC 3

[2021] TASSC 3

COURT: SUPREME COURT OF TASMANIA

CITATION: Brown v Moore; Brown v Moore [2021] TASSC 3

PARTIES:  BROWN, Anthony Vernon
  BROWN, Leslie Michael
  v
  MOORE, Luke

FILE NOS:  LCA 1297/2020, LCA 1298/2020
DELIVERED ON:  10 February 2021
DELIVERED AT:  Hobart
HEARING DATE:  1 February 2021
JUDGMENT OF:  Wood J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Two applicants charged with cultivating controlled plant (minor offence) attracting wholly suspended term of imprisonment of two months – 77 mature and healthy cannabis plants – Mature offenders with no prior convictions of significance – Sentences not manifestly excessive.

Misuse of Drugs Act2001 (Tas), s 22.
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicants:  G Richardson
             Respondent:  V Dawkins
Solicitors:
             Applicants:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2021] TASSC 3
Number of paragraphs: 24

Serial No 3/2021
File Nos LCA 1297/2020
LCA 1298/2020

ANTHONY VERNON BROWN v LUKE MOORE
LESLIE MICHAEL BROWN v LUKE MOORE

REASONS FOR JUDGMENT WOOD J

10 February 2021

The applicants, Anthony Vernon Brown and Leslie Michael Brown, have each brought a motion to review a sentence of two months' imprisonment wholly suspended, imposed upon them by Magistrate Brown on 13 May 2020. The sentence was suspended for 18 months on condition that they not commit any offence punishable by imprisonment for that period.
Their common and only ground of review is that the sentence was manifestly excessive.
The sentence was imposed on Anthony Brown for one charge of cultivating controlled plant (minor offence) contrary to s 22 of the Misuse of Drugs Act 2001. The applicant Leslie Brown was sentenced for the same offence of cultivating and, also, one count of possess controlled plant product (minor offence) contrary to s 25 of the Act, one count of possess controlled plant (minor offence) contrary to s 25, and using controlled plants or its products contrary to s 25.
Their offending arose out of the same enterprise of cultivating cannabis plants involving 77 mature and healthy plants.
The facts presented to the magistrate by the prosecutor were as follows. In February 2018 Northern Drug Investigation Services attended an address at Pipers River Road at Turners Marsh, a large bush property of approximately 1,000 acres. Police located between 70 and 80 healthy cannabis plants near the boundary of the property being grown in a single compound fenced with an electric fence, which appeared to have been well looked after. Police set up cameras pursuant to a warrant to cover the area. In March 2018, police inspected the cameras and three people were captured attending the compound, and one person was captured camping at the compound. On 15 March 2018, police returned to the compound with a search warrant. The applicant, Leslie Brown, arrived shortly after in a Navara utility with a large water tank on the rear of the utility. Police seized 77…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Moore; Brown v Moore

Details

AGLC: Brown v Moore; Brown v Moore [2021] TASSC 3
Case: [2021] TASSC 3
Decision Date: 10 February 2021

CaseChat Overview and Summary

The applicants, Brown and Moore, appealed against their wholly suspended sentences of two months imprisonment for cultivating a controlled plant. The case was heard by the Magistrates Court of Tasmania. Each applicant was charged with a minor offence of cultivating a controlled plant, specifically cannabis, with 77 mature and healthy plants found at their respective properties. The applicants, mature offenders with no prior convictions of significance, sought a review of their sentences, arguing they were manifestly excessive.

The court was required to decide whether the wholly suspended sentences of two months imprisonment were manifestly excessive. In considering this, the court took into account the nature of the offence, the quantity of the controlled plants, and the applicants' lack of prior convictions. The court was tasked with balancing the need for general deterrence with the individual circumstances of the applicants.

The court held that the sentences were not manifestly excessive. It found that the wholly suspended sentences were appropriate given the nature of the offence and the quantity of the controlled plants. The court also took into account the applicants' lack of prior convictions and their mature age. The court emphasised the importance of general deterrence in cases involving the cultivation of controlled plants, but also recognised the need to consider the individual circumstances of each case. The applicants' sentences were deemed to be proportionate and not manifestly excessive.

The appeal was dismissed, and the original sentences were upheld. The court's decision emphasised the importance of considering both the nature of the offence and the individual circumstances of the offender when determining an appropriate sentence. The court's ruling provides guidance for future cases involving similar offences and sentences.

Orders