Lade v The Queen; Bishop v The Queen
[1991] TASSC 41
•22 March 1991
Serial No 12/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lade v R; Bishop v R [1991] TASSC 41; A12/1991
PARTIES: LADE, Wayne George
v
R
BISHOP, Gerald Charles
v
R
FILE NO/S: CCA 124/1990
CCA 120/1999
DELIVERED ON: 22 March 1991
DELIVERED AT: Hobart
JUDGMENT OF: Underwood, Wright and Zeeman JJ
Judgment Number: A12/1991
Number of paragraphs: 58
Serial No 12/1991
List "A"
File Nos CCA 124/1990CCA 120/1990
WAYNE GEORGE LADE v THE QUEEN
GERALD CHARLES BISHOP v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
WRIGHT J
ZEEMAN J
22 March 1991
Orders of the Court
Application by Wayne George Lade for leave to appeal against sentence dismissed.
Application by Gerald Charles Bishop for leave to appeal against sentence dismissed.
Serial No 12/1991
List "A"
File Nos CCA 124/1990CCA 120/1990
WAYNE GEORGE LADE v THE QUEEN
GERALD CHARLES BISHOP v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
22 March 1991
On 4 December 1990, in the Supreme Court sitting at Burnie, each applicant was sentenced to a term of six months' imprisonment. The sentences were imposed upon convictions for growing or cultivating a prohibited plant contrary to the Poisons Act, s52(1). At the same time the applicant Bishop was sentenced to another term of six months' imprisonment, to be served concurrently with the other sentence, upon conviction for possessing a prohibited plant contrary to s49(1). In Lade's case a conviction was recorded upon a finding of guilty of the same offence. Each applicant seeks leave to appeal against the severity of the sentences of imprisonment.
In the case of Bishop, the grounds of appeal are:
1That the sentence was manifestly excessive having regard to all the circumstances of the case.
2That the learned trial judge erred in taking into account the possible quantity of a prohibited substance that would have been available for distribution had the crop of Indian Hemp matured.
3The learned trial judge erred in giving undue weight to the prevention of trafficking when the appellant was found not guilty of trafficking and having the prohibited plants in his possession for the purposes of sale.
In the case of Lade, the grounds of the application were:
1The sentence was manifestly excessive.
2His Honour the trial judge erred in law in failing to give the appellant a significantly lesser sentence than that given to the person he aided and abetted, Gerald Charles Bishop.
3His Honour the trial judge erred in law in failing to distinguish in sentence between the appellant and the main offender.
The applicants were arraigned on an indictment containing five counts. Counts one and two respectively alleged that on 10 February 1990 both applicants trafficked and sold Indian Hemp. Counts three and four alleged that on the same day the applicant Bishop assaulted a police officer and count five charged the applicant Lade with committing the same crime, also on 10 February 1990.
At the close of the case for the Crown, the learned trial judge ruled with respect to counts one and two, that neither applicant had a case to answer except on a charge of possession of a prohibited plant. See Poisons Act, s47(9). After the ruling, each applicant made a formal admission that he had in his possession a prohibited plant to wit Indian Hemp on 10 February 1990 at Roger River West. The jury then returned directed verdicts on count one of not guilty of trafficking but guilty of possession and not guilty on count two. On the remaining counts the learned trial judge refused the Crown's application to file a nolle prosequi and directed the jury to find both applicants not guilty.
Before turning to the question of sentence the learned trial judge agreed to hear and determine a related simple offence pending against each applicant. Bishop and Lade then pleaded guilty to a charge of growing or cultivating a prohibited plant contrary to the Poisons Act, s52(1) in that each "at Roger River West in Tasmania between the 30th of November 1989 and the 10th of February 1990 grew a prohibited plant, namely Indian Hemp". Immediately after that plea was taken counsel for the applicant Lade said:
"Your Honour could I indicate, with my learned friend's consent, that the plea of guilty entered by Mr. Lade is for aiding and abetting in that he sexed the plants ... and I suppose you'll hear about it in the facts, but he also ... it is agreed between myself and the Crown that the verdict of guilty for possession [sic] relates to the 15, 17 plants that he pulled out of the ground on the 10th of February at Roger River, that is possession of those plants in that way."
As will be seen, this statement meant that the applicant Lade, by his plea, only admitted that he aided and abetted the other applicant to grow or cultivate prohibited plants on a single day, 10 February 1990, by selecting and removing some of the male plants from a plantation of Cannabis Sativa plants. The object of this exercise was to enhance the THC content of the female plants.
Evidence was given by police officers that, on the evening of 10 February 1990, they were maintaining surveillance over a plantation of Cannabis Sativa plants at Roger River, some distance from Smithton. The plantation consisted of three specially constructed compounds containing a total of approximately 273 plants ranging in height from 1.1 metres to seedlings. The applicants were seen by the police to enter the compounds. The applicant Lade identified approximately 19 male plants from the crop and discarded them. At this stage, the police officers arrested the applicants.
The Applicant Bishop
A record of interview made by this applicant with police officers was tendered in evidence. It was not evidence against the applicant Lade either on the trial or during the sentencing process. In this interview, Bishop told the police that he owned 230 acres of land at Roger River West adjoining a State forest in which the plantation was located. He said that Lade was a user of marihuana and that in substance, it was his idea to grow the plants. Bishop said that Lade obtained the seeds and together they tilled the land partly by hand and partly with a rotary hoe. He said that the plants belonged to both of them. Bishop said that he bought the wire used to surround the compounds. Asked his reason for growing the plants Bishop said:
"Waldo [the applicant Lade] wanted some for his own use and I was going to get Waldo to sell my lot for me so I could have some beer money. He's got the contacts to unload it I haven't.
QDid you have any idea how many plants you would have available for sale?
ANo, we went out today to sort some males out from females and then see what we had left over after that.
QDid you have any idea how much money you were going to make from the sale of the marihuana plants?
AOh a couple of thousand dollars but I didn't know for sure like I said this is the first time and I only wanted some beer money."
On behalf of the applicant Bishop it was clearly put to the learned trial judge that, although he was a willing participant in the growing and cultivation of the plants, the principal offender was the applicant Lade in that it was he who initiated the idea, supplied both labour and expertise and it was he who would dispose of the harvest.
Bishop was aged 46 at the relevant time, lived at Smithton and was the owner of a substantial contracting business. He was married and without prior conviction. Counsel told the learned sentencing judge that:
"Why did he get involved in this crime? The reasons he really can't articulate other than to say that he was at the time that he became involved in this scheme under a lot of emotional pressure. He was going through what his wife, that is Mrs. Bishop, described to me – and I think it was said in court, a war."
The Applicant Lade
The material before the learned sentencing judge in the case of this applicant presented quite a different picture from that presented in the case against the applicant Bishop. Lade was 38 at the relevant time and employed by CIG as a field hand for pyrethrum plantations. A considerable part of his working life had been spent in the fishing industry. Counsel told the learned sentencing judge that there he was introduced to Cannabis "and was also privy to some discussions concerning the growing of it and so on". Upon the material available for the consideration of the learned sentencing judge, Lade's only involvement with the crop occurred on 10 February 1990 when he visited for the purpose of selecting and removing the male plants. His plea of guilty to the charge of possessing a prohibited plant did not extend beyond possession of those few male plants he held for a brief moment before discarding them. This offence was rightly categorised by the learned sentencing judge as a technical charge. In the circumstances, his order to record a conviction was clearly appropriate. With respect to the simple offence of growing or cultivating a prohibited plant, the applicant's plea of guilty was confined to aiding and abetting the principal offender by selecting and discarding the male plants on 10 February 1990. It was conceded on behalf of this applicant that he knew he was aiding the production of a crop destined for a commercial market by increasing the potency of the female plants. However, it was expressly put to the learned sentencing judge that in Lade's case, contrary to the account given to the police by Bishop, there was nothing to suggest that Lade:
1 Instigated the commission of the offence of growing and cultivating a prohibited plant.
2 Had anything to do with the plants before 10 February 1990.
3 But, for the intervention of the police, would have had anything to do with the plants after 10 February 1990.
4 Was to receive any reward for his work.
The Crown did not challenge any of these assertions.
Unlike Bishop, Lade had a prior conviction for breaches of the Poisons Act. On 3 January 1990, approximately 5 weeks before the commission of these offences, the applicant Lade was convicted in the Court of Petty Sessions, Smithton. The record of convictions tendered on the hearing shows the following:
"smithton cps date of court 030190
possess prohibited plant (indian hemp) (11289) conviction recorded
grow prohibited plant (indian hemp) fined $800
possess part prohibited plant (11289)
(indian hemp seeds) fined $500
possess prohibited substance (11289 c'bis) fined $75
use prohibited substance (11189 c'bis) fined $75."
Learned counsel for the Crown told the sentencing judge that those convictions related to the finding, at the appellant's house, of 61 Indian Hemp seedlings, approximately 200 Indian Hemp seeds and 17.5 grams of Cannabis. Counsel for the applicant told the learned sentencing judge that the applicant "turned to the experimentation of growing plants ... the result only for his own use". Just what "experimentation" means was not made clear.
During the course of the trial of both applicants the learned sentencing judge heard evidence from a botanist that the plants appeared to be growing well and that a full mature plant would, when dried, produce between about 45 grams and 90 grams of usable material. In the course of the sentencing process, the learned judge was referred to a proof of evidence to be given by a police officer of the market value of Cannabis. From this material it was clear that had the crop reached maturity and been sold, it would have returned, as counsel for the Crown put it at the hearing, "many thousands of dollars".
Comments on Passing Sentence
With respect to the applicant Bishop, the learned sentencing judge clearly placed substantial weight on the aspect of personal and general deterrence. He noted that the offences were not committed on the spur of the moment, were not in the nature of a small scale experiment and were not committed to provide a supply of marihuana for personal use. The learned sentencing judge took into account the applicant's good behaviour but observed that the scale of the operation was such that a sentence of imprisonment was called for.
With respect to the applicant Lade, the learned sentencing judge clearly drew a distinction between the case against him and the case against his co–offender. After recording a conviction on the charge of possession, the learned sentencing judge correctly commented:
"The other offence of growing a prohibited plant is by no means technical. On 10 February you came with the co–accused, Bishop, to his plantation and you entered two of the three compounds. There you actively assisted him in the cultivation of the crop he was growing by identifying 19 male plants and discarding them in order to promote the production of the more potent plant material. It must have been obvious to you that this was a large crop with the potential to produce a significant quantity of illicit material for sale to, or consumption by others. Your active encouragement of Bishop in the production of such material is therefore very serious."
His Honour observed that the appellant's prior conviction had been imposed only five weeks or so before the commission of this offence and that it had obviously been ineffective as a deterrent. He proceeded to impose sentence on the basis that, although the applicant Lade's offence was less serious than that of his co–applicant, "he being the principal", Lade's previous conviction disentitled him to any reduction in penalty that (inferentially) had been applied in Bishop's case.
The Applications for Leave to Appeal
The parameters within which the sentencing discretion had to be exercised were clearly specified by Parliament. In the case of possession they were $3,000 or imprisonment for two years or both and in the case of growing or cultivating a prohibited plant, $4,000 or two years' imprisonment or both. Of course, other sentencing options were available if appropriate, by virtue of the Probation of Offenders Act 1973.
In their submissions, counsel for Bishop and counsel for Lade referred to records kept by the Crown Law Department of sentences imposed in the past for breaches of the Poisons Act. The relevance of this material was said to lie in the principle that consistency in sentencing is a fundamental principle of the criminal law. I have no doubt that the statement of principle is correct. In Lowe v The Queen (1984) 154 CLR 606 Mason J, as he then was, said at p610–11:
"Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element of any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
Recourse by an appellate court to statistical sentencing information is not uncommon. See for example Tracey & Ors v The Queen CCA 38/87 ([1987] Tas R 108); R v Visconti [1982] 2 NSWLR 104; Yardley v Betts (1979) 22 SASR 108.
To me, there appears to be an increasing tendency for counsel to rely upon statistical information to support an argument on an appeal against sentence. Accordingly, it is perhaps appropriate to draw attention to the limited use of such information in the achievement of the principle set out by Mason J (supra). Raw statistics on sentencing are usually in such an abbreviated form that they seldom provide a safe basis upon which to draw anything more than a very generalised inference. In R v Barber (1976) 14 SASR 388 all the members of the court expressed reservations about the use of statistical material. Sangster J said at p392:
"I acknowledge that such a schedule [of penalties imposed in other cases for the same offence] may, on rare occasions, be of some assistance. But its usefulness, in my opinion, is severely limited. If the Crown had a right of appeal against sentence that usefulness could be less limited, but what was presented to us in the schedule was a list of penalties, some of which might have been too high, but not taken on appeal, some too low but incapable of being tested on appeal, and some that were just and appropriate. We were given some facts, but by no means all; we were not supplied with the learned sentencing judges' remarks when imposing penalties; we had no idea of what special reports or testimony had been tendered. With profound respect to those who think otherwise, I am constrained to say that such a schedule must usually be unhelpful, and may be positively misleading: compare R v Homer (1976) 13 SASR 377 and Hillier v Boorman (1975) 11 SASR 394 at p395."
I would agree with those observations which are particularly pertinent in this State where the size of the data base is in some cases too small to indicate anything other than a very general sentencing pattern and in many cases not large enough to indicate even that. On the present applications the Court was referred to –
13 sentences imposed for possession of a prohibited plant.
39 sentences imposed for trafficking.
32 sentences imposed for selling a prohibited plant.
Th e information consisted only of date of sentence, the name of the offender, whether he/she had prior convictions, described either as "criminal" or "traffic" and the penalty imposed. This information is so limited in scope that it provides virtually no assistance in determining the present appeals. We were informed that in one case the possession related to 206 plants but in all other cases of possession of a prohibited plant, the statistics did not indicate the quantity of the plant in the possession of the offender. Equally importantly, the statistics did not indicate whether the possession was for personal consumption or destined for commercial distribution on an illicit market. The statistical information concerning sentences imposed for other offences against the Poisons Act were similarly lacking in detail and in any event, because it related to other offences, its use on the hearing of these applications, was practically nil.
These observations should not be taken as a criticism of those who compile the information. They serve to reinforce the accepted view that even if the number of sentences imposed is sufficiently extensive, statistical information is of limited use, only capable of indicating in very general terms the "tariff" for the commission of any offence.
With respect to the limited use to which statistical sentencing information can be put see also Yardley v Betts (supra); Winkler v Cameron (1981) 33 ALR 663 at p667; R v Visconti (supra); Comment by F Rinaldi (1980) 4 Crim LJ 37980; Coulson v Chick, Zeeman J, 37/1990.
It is interesting to note that in Barber, Sangster J went on to observe that it would be a useful contribution if the remarks on penalty made by judges were circulated amongst the judges and the profession of this State "so that a grasp of principle will be inculcated". For many years, it has been the practice of the members of this Court to circulate amongst themselves all comments made when a sentence is passed.
Bishop
In his argument in support of the application counsel submitted that the learned sentencing judge should have firstly considered what was an appropriate objective sentence and then reduce it according to the mitigatory factors established on the hearing. This course was suggested as appropriate by Nader J in Ireland v The Queen (1987) 29 A Crim R 353 at pp3667 where his Honour described the objective sentence as being the sentence "determined by looking at the facts of the crime in the light of the intention of Parliament as expressed in the legislation creating the offence and prescribing the punishment for it." However, this two tiered approach was rejected as inappropriate by the Full Court of Victoria in Young & Ors v The Queen (1989) 45 A Crim R 147. In the judgment of the court the exercise of the sentencing discretion cannot be confined to any rigid formulae. The court adopted as correct the following passage from R v Williscroft& Ors [1975] VR 292 at p300:
"Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was thought to be in Kane's case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination".
The adoption of the so called two tiered approach may lead to error for, at the end of the day, the sentencing judge has to ask him or herself what is the appropriate sentence to impose having regard to all the circumstances of the case including the circumstances surrounding the commission of the crime and the personal circumstances of the offender. See The Queen v Rouse CCA 64/1990.
The learned sentencing judge was entitled to take into account as a circumstance of aggravation, the amount of illicit material that would be available for distribution had the crop reached maturity. It is true, as counsel suggested, the crop or some of it may have died before maturity but, it is equally true, on the material before the sentencing judge that all of it or most of it would have reached maturity. Consistent with his Honour's ruling on the submission of no case to answer on the charge of trafficking or selling, it was appropriate to take into account the applicant's purpose in joining in the enterprise namely, not to use the drug himself but to benefit from sales that he anticipated would be made by the co–offender. However, in this respect, in his comments on passing sentence the learned sentencing judge said "whether you did this commercially or otherwise matters little in my view, the vice the Poisons Act is intending to prevent is the consumption of these prohibited materials." In R v Stevenson (1984) 35 SASR 237 White J said at p239, "in sentencing offenders for cultivation of marihuana, the size of the crop, the likely harvest therefrom and the use which the cultivators intend to make of the harvest are all of great importance". See also R v Carbone (1984) 36 SASR 306 and R. Vourlis v Migioudis (1983) 30 SASR 223.
Notwithstanding the applicant's prior good character, his cultivation of a substantial Cannabis Sativa plantation for profit, albeit at the instigation of another, must be met with an immediate custodial sentence. Anything less would defeat the clear intention of Parliament and act as an encouragement to those without prior conviction to engage in the commercial cultivation of an illicit drug. The rewards from such criminal activity, if undetected are high. The penalty to be imposed for commercial cultivation of a substantial number of prohibited plants must, unless there exists unusual circumstances, be one which will make an attempt to achieve those rewards an unattractive proposition.
In the case of the applicant Bishop, a sentence of six months was entirely appropriate. I would dismiss the application for leave to appeal.
Lade
Learned counsel for this applicant developed an argument that error occurred in the failure to impose a lesser sentence than that given the principal offender. In Lowe v The Queen (1984) 154 CLR 606, the majority of the court held that a manifest disparity between the sentences imposed upon comparable co–offenders, such as to engender a justifiable sense of grievance, is a ground for intervention even though each sentence, when considered alone, could not be regarded as manifestly excessive or inadequate.
The short answer to this submission is that, as put to the learned sentencing judge, the circumstances surrounding the commission of the offence were quite different in the case of each applicant and, having regard to the recently imposed conviction on Lade, so were the personal circumstances of each applicant. This state of affairs was clearly pointed out by counsel for the applicant Lade during the sentencing process and acknowledged by the learned sentencing judge in his comments on passing sentence.
Commission of the offence of cultivating or growing a prohibited plant by aiding another in his cultivation of a substantial crop of marihuana grown for commercial purposes within a few weeks of conviction for (inter alia) the same offence makes it clear that the penalty imposed on the first conviction did not deter the applicant from re–offending. In those circumstances, satisfaction of the need to impose a penalty which will, amongst other things, act as a personal deterrent made the imposition of an immediate custodial sentence one of the options properly open to the learned sentencing judge in the exercise of his discretion. The fact that the applicant's involvement in the offence of growing or cultivating a prohibited plant was limited to one oCCAsion indicates that a sentence of six months was at the upper end of the range of sentences properly open to the learned sentencing judge. However, as the learned sentencing judge observed, his unlawful acts actively assisted the principal offender to produce a more valuable crop. In these circumstances I am unpersuaded that a sentence of six months can properly be categorised as manifestly excessive and accordingly, I would dismiss the application for leave to appeal.
File Nos CCA 124/1990
CCA 120/1990
WAYNE GEORGE LADE v THE QUEEN
GERALD CHARLES BISHOP v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
11 March 1991
I agree with the judgment of Zeeman J and the orders which he proposes.
File Nos CCA 124/1990
CCA 120/1990
WAYNE GEORGE LADE v THE QUEEN
GERALD CHARLES BISHOP v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ZEEMAN J
22 March 1991
The applicants stood trial on an indictment containing five counts. By count 1 the applicants were jointly charged with trafficking in a prohibited plant contrary to s47(3)(b) of the Poisons Act 1971 ("the Act") and by count 2 they were jointly charged with selling a prohibited plant contrary to s47(3)(a) of the Act. The other counts charged one or other of the applicants with breaches of the Criminal Code. At the end of the Crown case, the learned trial judge upheld submissions that there was no case to answer on each of counts 1, 2 and 5. That ruling was subject to the qualification that his Honour ruled that on count 1 each of the applicants had a case to answer as to the alternative charge of having in their possession a prohibited plant contrary to s49(1) of the Act. That alternative is provided for by s47(9). Thereupon each of the applicants formally admitted facts which in each case constituted the necessary ingredients of that offence. The Crown indicated that a nolle prosequi would be entered in respect of each of counts 3 and 4. It asked that the applicant Bishop be discharged in respect of those counts. The learned trial judge declined to accede to that application and directed the jury to acquit. In the result, the jury, by direction, acquitted the applicants of all the crimes charged by the indictment but found each applicant guilty of the alternative offence of possession. His Honour then acceded to an application made pursuant to s385A of the Criminal Code that he hear and determine a complaint whereby the applicants were jointly charged with growing a prohibited plant contrary to s52(1) of the Act. Each of the applicants pleaded guilty to that offence. In the result, the learned trial judge was required to sentence each of the applicants for the offences of having in his possession a prohibited plant and growing a prohibited plant.
The applicant Bishop was sentenced to a term of six months' imprisonment in respect of each matter, it being ordered that those sentences be served concurrently. The applicant Lade was sentenced to six months' imprisonment in respect of the offence of growing a prohibited plant and a conviction was recorded in respect of the charge of possessing a prohibited plant. Each applicant seeks leave to appeal upon the common ground that the sentences were manifestly excessive. The applicant Lade relied upon two further grounds whereby it was asserted that the learned trial judge erred in law in failing to impose upon him a significantly lesser sentence than that given to the person he aided and abetted, namely the applicant Bishop, and in failing to distinguish in sentence between him and the applicant Bishop, described as the main offender. The applicant Bishop relied upon one further ground whereby it was asserted that the learned trial judge erred in taking into account the quantity of prohibited substance which might have become available had the relevant crop matured.
There was a certain artificiality about the basis upon which the learned trial judge was required to sentence the applicants. The nature of the evidence against each was such that they could not be sentenced upon a common factual basis. In fact each applicant stood to be sentenced upon a version of the facts as to their respective roles in the enterprise which was inconsistent with the version upon which the other of them was to be sentenced.
Each of Bishop's offences related to the entire crop of 273 Indian Hemp plants (comprised in three plantations) of which 26, being male, had been discarded. In mitigation, counsel for the applicant Bishop stated that the extent of his client's involvement in the commission of the offences was accurately stated in that applicant's answers to questions recorded in a record of interview. That version was not inconsistent with any of the evidence led during the course of the Crown case in so far as it was admissible against Bishop. In essence, Bishop alleged that the applicant Lade was the originator of a scheme to grow Indian Hemp plants in three compounds, that Lade provided the seeds, that Lade was to attend to the marketing of the end product, and that it was his, Bishop's, expectation that he would receive some thousands of dollars out of the proceeds. His Honour was required to sentence Bishop upon this basis, an important feature of which was that Lade was the moving force.
The applicant Lade was not sentenced upon the basis that his participation in the total scheme had been at all extensive. He was sentenced for the offence of growing upon the basis that he aided and abetted the growing of the plants by one casual act of attending to remove male plants from two of the three plantations with a view to increasing the potency of the female plants. As to the charge of possession, he was sentenced upon the basis that he was in possession of the 26 male plants which he removed and then discarded. There was no evidence admissible against him that he had any greater involvement. He stood to be sentenced upon the basis that the plantations were Bishop's, but that he had rendered an isolated act of assistance calculated to increase the ultimate production.
In considering the alleged excessiveness of the sentences imposed by the learned trial judge, the maximum penalties provided for by the legislature need to be borne in mind. The maximum penalty provided for a breach of s49(1) of the Act is a fine of $3,000.00 or imprisonment for two years, or both, and for a breach of s52(1) of the Act, a fine of $4,000.00 or imprisonment for two years, or both. By providing specific maximum penalties for breaches of particular provisions of the Act, Parliament is to be taken as having laid down what is an appropriate range of penalties. There is no room for judicial intervention by way of limiting the appropriate range of penalties in a manner not provided for by the Act. Considerations relevant to sentencing for crimes under the Criminal Code (where Parliament has conferred a very wide discretion as to sentences) do not apply where Parliament has chosen to provide for a particular maximum penalty for a particular offence. In such circumstances there is no warrant for a court to arrogate to itself the right to fix a range other than that provided for by Parliament.
Each of the applicants sought to impugn the sentences imposed by reference to other sentences imposed in this Court for various breaches of the Act. Certainly that type of information has been received and acted upon in the past (see, eg, Tracey v R Serial No 38/1987 ([1987] Tas R 108) and R v O'Brien Serial No 43/1987). However, I repeat what I said in Coulson v Chick Serial No 37/1990, at p8:
"At best, such information, unless prepared in a most sophisticated form, can only be a very general guide to sentencing trends."
The offences of possessing and growing prohibited plants can arise out of a wide variety of factual circumstances. The quantity of plant material involved and the purpose of the possession and growing are particularly relevant circumstances. I do not find the particulars of other sentences which were provided to the court to be of any real assistance. The material provided as to the circumstances surrounding the various offences is so limited that no meaningful comparative exercise is capable of being performed. If the information provided is to be construed as indicating that an actual term of imprisonment is never appropriate for the offence of possessing a prohibited plant, then such an indication would be quite contrary to the express provisions of the Act.
Counsel for the applicant Bishop sought to demonstrate that the sentences imposed upon his client were excessive by reference to what he submitted must have been the "notional objective sentences" before the application of mitigating circumstances so as to arrive at the actual sentences. That submission proceeded upon the basis that the learned trial judge is to be taken as having selected "objective sentences" before considering matters in mitigation, and that the actual sentences imposed were the result of deducting from such "objective sentences" an allowance reflecting the mitigating circumstances. There is no indication that the learned trial judge proceeded upon that basis. Counsel referred to the dissenting judgment of Nader J in R v Ireland (1987) 29 A Crim R 353. If his Honour's reasons for judgment in that case are to be construed as indicating that it is the duty of a sentencer to determine an appropriate objective sentence, being the sentence that is appropriate having regard to the circumstances of the crime, and then ameliorate that, if appropriate, by reference to factors making it appropriate to extend a greater or smaller measure of leniency then, with respect, I would disagree. The proposition that there should be a two–stage approach to the task of arriving at an appropriate sentence was rejected by the Court of Criminal Appeal of Victoria in Young & Ors v R (1989) 45 A Crim R 147. I find the reasons of the court in that case for concluding that it is not open to a sentencer to proceed in such a way persuasive and supported by the authorities therein referred to. It being inappropriate for a sentencer to adopt such a two–stage approach, it is inappropriate for this Court to embark upon conjecture as to what the "objective sentence" might have been. In any event a comparison of a perceived "objective sentence" with sentences imposed in other cases cannot have any value whatsoever. Even if the two–tiered approach is permissible, then by definition it may be that none of the comparative sentences represent "objective sentences".
I have concluded that there is no basis for holding that either of the sentences was manifestly excessive, bearing in mind the well known and oft repeated limitations upon an appellate court interfering with the sentencing discretion.
In sentencing the applicant Bishop the learned trial judge made the following observations:
"Over several months you prepared three well hidden compounds, fencing them, tilling them and planting seeds in them. This was not a spur of the moment decision, nor a small scale experiment, ... You grew something of the order of two hundred and seventy three plants, most of which were growing healthily when you were discovered and apprehended. You discarded about twenty six of these plants to promote the cultivation of the others. Had they grown to full maturity and been harvested as you intended, a large amount of illicit materials would have been available for disposition to ultimate consumers. Whether you did this commercially or otherwise matters little in my view, the vice the Poisons Act is intended to prevent is the consumption of these prohibited materials. Your offences, therefore, are very serious ....."
All those comments were fully justified by the material before his Honour. They accurately stated the extent of the applicant's involvement. The material before his Honour was to the effect that the applicant had admitted that the plants had been grown for commercial purposes. In mitigation, it can be said that the applicant was not the instigator of the scheme and that he was a person of previous good character.
I consider that an immediate custodial sentence of six months' imprisonment was fully justified. It represented one quarter of the maximum period of imprisonment permitted by the Act. Parliament has seen fit to treat the proliferation of illegal substances as a serious social problem by providing heavy penalties for those involved in their production. The applicant's offences arose out of a deliberate enterprise during the course of which it was intended to produce a substantial quantity of prohibited plants and then dispose of the illicit end product for monetary gain which might have been quite substantial. It was a flagrant breach of the law motivated by monetary greed. Parliament has clearly expressed the intention that such activities be deterred by the imposition of substantial penalties including penalties of imprisonment. It ought not to be thought by persons of previous good character that they are free to involve themselves in such activities without running the risk of being imprisoned because of such previous good character.
The applicant Lade was in a somewhat different situation. In the course of sentencing him, the learned trial judge made the following observations:
"... on 10 February you came with the co–accused, Bishop, to his plantation and you entered two of the three compounds. There you actively assisted him in the cultivation of the crop he was growing by identifying nineteen male plants and discarding them in order to promote the production of more potent plant material. It must have been obvious to you that this was a large crop with the potential to produce a significant quantity of illicit material for sale to, or consumption by others. Your active encouragement of Bishop in the production of such material is therefore very serious. While your offence in itself maybe less serious than Bishop's, he being the principal, your previous involvement with drugs disentitles you to any reduction in penalty which his prior good conduct has earned for him. Only five weeks or so before you committed these offences you'd been sentenced in the Court of Petty Sessions to substantial fines for growing and possessing prohibited plants. As that was ineffective as a deterrent, obviously a more substantial sentence is called for."
Again those comments were fully justified by the material before the learned trial judge. Insofar as the prior convictions were concerned, the material before his Honour indicated that the applicant had been convicted in a Court of Petty Sessions on 3 January 1990 of growing Indian Hemp, possessing Indian Hemp, possessing Indian Hemp seeds, possessing Cannabis and using Cannabis. Fines totalling $1,450.00 were imposed.
Upon the case against the applicant Lade he played a limited role in the enterprise but at the same time it was an important role, aimed at maximising the volume of illicit material to be produced. I consider that his Honour was perfectly correct in concluding that a custodial sentence was appropriate insofar as Lade was concerned. The imposition of a monetary penalty five weeks earlier had not operated as any sufficient personal deterrent to the applicant. His Honour was entitled to conclude as to this applicant, that he having so recently been convicted of other serious breaches of the Act, matters of mitigation personal to him were of little or no significance. Concluding, as I do, that the imposition of an immediate custodial sentence was right and in accordance with principle, I am not persuaded that the term selected by his Honour was outside the appropriate range.
I turn to the other grounds.
Counsel for the applicant Bishop in support of his other ground, submitted that the offence of possession created by s49(1) of the Act does not contain any element of commercial enterprise. In one sense that is correct. It is not an ingredient of the offence as created by Parliament that the possession be for any commercial purpose. However, it does not follow that a sentencer may not take into account that the possession was for the purpose of carrying into effect a commercial enterprise.
The relevant principles are as follows:
(a)a convicted person may not be sentenced upon a basis which is inconsistent with the verdict of the jury; and
(b)a convicted person may not be sentenced upon a basis which assumes guilt of a more serious offence (see R v Di Simoni (1980–1981) 147 CLR 383).
In the present case, the applicant Bishop was acquitted of trafficking and selling by direction of the learned trial judge. That direction was given consequent to the learned trial judge having ruled that there was no case to answer on the charges of trafficking and selling. That ruling proceeded upon the basis that the evidence led by the Crown was to the effect that the applicant had possession of a prohibited plant for the purpose of sale or trafficking at some future time but that such possession was insufficient to come within the definitions of "sale" and "traffic" contained in s3(1) of the Act. It follows that sentencing the applicant upon the basis that he had possession of prohibited plants for the purpose of sale at some future time did not offend either of the principles which I have stated. Provided that those principles are not offended, a sentencer is entitled to look at the surrounding circumstances (including circumstances of aggravation) going beyond the mere necessary legal ingredients of the offence (see R v Marshall Serial No 70/1990). I do not consider this ground to have any merit.
I turn to the other grounds relied upon by the applicant, Lade. Both those grounds proceed upon the basis of the general principle stated in R v Tiddy [1969] SASR 575 that "where other things are equal persons concerned in the same crime should receive the same punishment and that where other things are not equal a due discrimination should be made between them." I consider the argument addressed in support of these grounds to suffer from the following flaws:
1The applicant sought to compare his involvement with that of the applicant Bishop by reference to the version of the facts upon which he was sentenced when in fact Bishop was sentenced upon a different factual basis. In particular, Bishop was sentenced upon the basis that Lade was the instigator and organizer of the whole scheme, whereas Lade was sentenced upon the basis that he played a small part only and that Bishop was the principal offender. The sentences imposed upon Bishop were not a reflection of a degree of involvement on his part which was commensurate with that disclosed by the material before his Honour when he sentenced Lade.
2The applicant Bishop was entitled to be sentenced upon the basis that he was a person of previously good character having had no previous convictions. Lade was not entitled to be sentenced upon this basis, he having had very recent prior convictions for other serious breaches of the Act.
In the result, I would dismiss both applications.
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