R v Applewaite & Jones

[1996] QCA 533

IN THE COURT OF APPEAL	[1996] QCA 533
SUPREME COURT OF QUEENSLAND
Brisbane
[R v. Applewaite] [R v. Jones]

C.A. No. 433 of 1996

THE QUEEN

v.

SCOTT ANTHONY APPLEWAITE

(Applicant)

C.A. No. 434 of 1996

THE QUEEN

v.

TREVOR JOHN JONES

(Applicant)

McPherson JA

Pincus JA

Thomas J

Judgment delivered 20 December 1996

Joint reasons for judgment McPherson JA and Thomas J; Pincus JA separate reasons, dissenting with respect to CA No. 433 of 1996.

APPLICATIONS FOR EXTENSION OF TIME TO APPEAL AGAINST SENTENCE
REFUSED

CATCHWORDS:CRIMINAL LAW - Sentence - Analysis of sentences in cannabis production cases - Factors influencing the level of sentence - Comparative schedule of cases - ss.8(d),(e) and 13 Drugs Misuse Act

Counsel:	Ms K. McGinness for the Appellants
Mr D. Bullock for the Respondent
Solicitors:	Legal Aid Office for the Appellants
The Director of Public Prosecutions (Qld) for the Respondent
Hearing Date: 18 November 1996 appeal against sentence. The applicants were convicted by a jury of producing cannabis	JOINT REASONS FOR JUDGMENT - McPHERSON JA and THOMAS J

Judgment delivered 20 December 1996

These matters were heard together. They are applications for extension of time to

exceeding the quantity specified in Schedule 3, and were sentenced by the Circuit Court Judge

on 30 August 1996.

Each applicant filled out an application for leave to appeal and signed it the day after,

that is on 31 August 1996, and handed it to his legal representative. Due to oversight by the

articled clerk the matter was not brought to the attention of the principal in time, and the notice

of appeal in each matter was not filed until 8 October 1996.

The delay is properly explained and was not the fault of the applicants personally. The

Crown did not oppose the granting of an extension.

The Court reserved the question of extending time, and on its invitation the parties have

argued the matter as upon an appeal.

The Sentences

Applewaite was sentenced to eighteen months' imprisonment, and Jones to two years'

imprisonment. They were jointly engaged upon the relevant venture, and the main factor

justifying a difference in the sentences was the more extensive criminal record of Jones.

The applicants were apprehended on 20 March 1996 in a bush area near Attie Creek via

Cardwell. An off-duty police sergeant and an environment ranger stumbled across their camp

whilst on a pig-shooting expedition. They found some freshly dug garden-beds and a "lean-to"

camp with a camouflaged net. There was no resistance, and the two men made, with one

exception, what would appear to be fairly frank admissions. The exception was Applewaite's

statement "We have only got a couple of hundred plants," whereas a count showed 504 cannabis

seedlings in starter-pots, and about 50 seedlings in an area of turned soil, which the prosecution

flatteringly described as a garden-bed. The plants were described as "very tiny". The analysts's

certificate states that the 52 seedlings weighed a total of approximately 1.4 grams whilst the 504 seedlings weighed a total of 6 grams. Various seeds were weighed totalling 9.2 grams.

Schedule 3 describes the limit as 500 grams "or, if the dangerous drug consists of plants the

aggregate weight of which is less than 500 grams, 100 plants".

Jones told the interviewing policeman that they had been there for a "couple of weeks".

Both admitted that they were trying to make "a bit of money", Jones claiming that it was

basically his idea and that he was doing it to help his mate (Applewaite) who needed money and

could not get work because of his leg.

Applewaite had previously served in the army for seven years, and had left after

suffering a serious motor-cycle accident, for which he had not, by the time of this offence,

received compensation.

They showed the visitors over their camp and some "garden-beds" which had recently

been cultivated but not yet sown, except of course for the area containing about fifty seedlings.

An irrigation system and polythene pipe led to the camp from a creek. The area containing the

seedlings in starter-pots was in a fenced off area.

In the context of camp-production cases, this one was small and unsophisticated. The

"camp" was very rough and ready, the agricultural aids minimal, and the area and project

relatively small.

It is difficult and perhaps dangerous to attempt to generalise in cases of this kind, but

some rationalisation seems necessary if sentencing patterns are to be understood.

The most commonly encountered types of cannabis production are back-yard

production, bush-camp production, and farm-assisted plantations. Sentencing patterns show

that save in the case of repeat offenders a moderate approach is generally made in relation to

back-yard production, particularly when the production is for the own use of the grower. The

bush-camp cases tend to attract a more serious response, depending particularly on the size if

the operation and the persistence of the operators, as well as the sophistication of the project and

the end object of the operation. The farm plantation cases are commonly more ambitious than those so far mentioned, and depending factors such as size and object of the operation, tend to

merit the higher penalties.

Sentences for the earlier offence of cultivation, and now of production, seem to have

1

fluctuated considerably. The maximum penalty under s.8(d) of the Drugs Misuse Act is twenty

years' imprisonment. When the quantity of a Schedule 1 drug is less than that prescribed in

Schedule 3 the maximum penalty (under s.8(e)) is fifteen years. Such cases may be dealt with

summarily under s.13), and when this happens the maximum sentence is two years. All too

often such cases (including quite minor examples of the offence) are brought before the

Supreme Court.

Starting at the lower end of the scale there are some production offences which are

considered to be appropriately dealt with by the imposition of a fine or a community based

order, and where it is appropriate that no conviction be recorded. Such cases were reviewed by

this court (Macrossan CJ, Pincus JA and Byrne J) in Dixon and Jones v. Irvine CA 535 of 1994,

unreported, 27 March 1995. In that case a fifty-three year old offender, with no previous

convictions, was growing 23 plants of varying heights up to about two feet, and also had some

seeds. This was regarded as a "relatively minor" marijuana offence and the Court observed that

"a distinct practice of declining to record convictions, where the offender has committed a

minor offence or minor offences relating to marijuana, is discernible". It added that in special

circumstances, even offenders who have committed prior offences may be considered to merit

the advantage of not having a conviction recorded. Non-custodial sentences are common for

first offenders or virtual first offenders even when the quantities are considerably higher than the

quantity in that case.

At the other end of the scale are offenders who engage in large-scale production on a plantation or plantations in the course of professionally organised crime. In cases where such offenders are convicted of production, sentences of eight years' imprisonment, sometimes with a

2

parole recommendation, are not uncommon.

Between these extremes, the main factors which influence the level of sentence seem to

be the following:

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 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 far more relevant than one of possession.

7.Special factors common to most sentencing procedures, such as assistance to the police, early plea, young offender etc.

The attached schedule, which is by no means comprehensive, provides a sample of

approaches both by single justices of the Supreme Court and of decisions of the Court of Appeal

in production cases in recent years. Indeed more extensive schedules prepared by counsel for

the applicants suggest that it is quite common for Supreme Court Judges at first instance to

impose non-custodial sentences in cases involving between 200 and 300 plants even when there

has been some degree of commercial purpose, but there are also cases involving similar quantities which resulted in terms of custody. The degree of commercial purpose seems to be

an important factor. It is quite impossible to reconcile the large number of instances that have

been supplied. Of course greater weight must be given to the cases in the attached schedule

which have come to the Court of Appeal. The cases have been selected only from the lower end

of the range, that is to say cases which have produced sentences of less than four years, but we

have not included matters toward the bottom of the range such as Dixon and Jones.

It seems fairly clear that relatively light sentences (including sometimes suspended

sentences) are given mainly when the offender is "on the very periphery of the plan", or has

"very limited involvement" or is a "minor figure", or where production is substantially for his or

her own use. The absence of previous convictions or the possession of only minor previous

convictions also seems to be an important factor in these cases.

We have also adverted to a number of sentences imposed by Cullinane J, some of which

were reviewed by this Court in R. v. Cook, Coleman, Kake, Innes and Le Blowitz CAs 219, 231,

242, 243 and 250 of 1996, unreported, 19 November 1996, dealing with those involved in

professionally organised plantations in North Queensland. It seems fair to say that sentences of

three years are a common result for persons (usually with more than minor criminal histories)

who have been employed as workers on such plantations for substantial periods. However, as

the judgments in Cook, Kake and Innes show, special factors may justify early

recommendations for parole.

It will also be seen from the schedule that sentences of three years' imprisonment have

not infrequently been imposed with respect to production of similar quantities to those in issue

here, although such sentences have commonly be tempered by a recommendation for parole

after twelve months. The schedule is of limited value in that the precis do not permit reliable

comparisons to be drawn. The schedule merely permits an overview to be had of sentencing

levels in a variety of circumstances.

Reference was made during submissions to R v. Mrsic CA 135 of 1994, unreported, 12 May 1994, Morris v. Lintott and Gilmore CA Nos 252 and 253 of 1993, unreported, 10 September 1993, and R v. Kennedy CA 516 of 1994, unreported, 20 February 1995. It is

certainly difficult to reconcile the results in those cases, at least on the limited statements of

facts available. Suffice it to say that in Lintott and Gilmore, which was an appeal from a

sentence imposed by a magistrate, there was production of 93 plants (up to two inches in height)

with commercial intention. This Court reduced the magistrate's sentences of nine months'

imprisonment (with a non-parole period of six months) to a three months suspended sentence

for Lintott and to a three months' sentence for Gilmore. Lintott had no previous criminal history

but Gilmore did. In Kennedy's case, 374 cannabis seedlings had been grown to a height of ten

centimetres. The original sentencing judge imposed three years' imprisonment with parole after

twelve months on the production charge. This was conceded by counsel for the Crown on the

appeal to have been excessive, and a number of cases were referred to in which this Court had

upheld sentences of eight months or less for the production of seedlings ranging in number

between 26 and 328. In Kennedy's case the Court set aside the three years' sentence and

replaced it with imprisonment for nine months. In Mrsic above this Court refused leave to

appeal against a three-year sentence imposed on an offender who was growing 850 cannabis

plants in the early stages of growth in a rain-forest between Cardwell and Tully. His criminal

record was described as "unimpressive" by reason of numerous offences of dishonesty, although

those offences were old.

We do not see any useful purpose in closer analysis of those particular decisions. The

results were no doubt influenced by perceptions of criminality and of other factors which have

been listed above as the main factors that influence sentences for this particular offence. On the

face of it, the seriousness of the present matters lies in between that of Kennedy and Mrsic, and

so do the sentences that were imposed.

The present offenders were co-principals in a planned attempt to make money out of

growing cannabis and had established a camp in a remote place and planted over 500 plants. It

was a s.8(d) offence. In the context of the "camp" cases it was relatively small-scale and

unsophisticated
offences when he was aged seventeen or eighteen (driving under the influence, stealing and Applewaite is thirty years old and has only a minor criminal history consisting of three

unlawful use), and one offence of possession of a drug and pipe in 1995, for which he was fined

$900 without any conviction being recorded. Jones is aged thirty-three, and has a more serious

although not lengthy criminal history. There were five offences (including one of carnal

knowledge) by the time he was twenty-one for which he was fined or placed on probation.

There was then a serious offence - armed robbery - for which he was sentenced in 1986 to four

and a half years' imprisonment. He has two further offences, one of shop-stealing in 1996 and

one of unlawful possession of a drug in 1992. This more serious history, together with his

acceptance of the slightly dominant role in the enterprise would seem to justify the difference in

treatment of the two offenders.

Both of them went to trial, and obviously neither is entitled to any discount by reason of

early plea, cooperation or remorse.

When all factors are considered, the sentences would appear to lie within the proper

range for exercise of a sentencing discretion. We would refuse the applications.

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

FERRICKS,	CA No 243 of	PRODUCTION:	32 yrs of age	Trial	3 yrs imp
Leonard	1991	5,232 plants grown for a commercial purpose in the Rockhampton area.	Prior conviction for	[Williams J: "at least 4
Sentenced as one of the two people involved in the cultivation	possession of pipe.	yrs" is usually called for
Gave information to	in such circumstances;
police which was of	Thomas J: relatively
assistance	large cultivations range 4-6]
MRSIC, Ivan	CA No 135 of	PRODUCTION:	53 yrs of age	Plea. Had abscon-	3 yrs imp
1994	850 plants grown in 4 plots in isolated rainforest in the Cardwell area.	Prior convictions,	ded to NT, served a
Plots surrounded by fences and watered by water pumped from a stream	numerous offences of	term of imp in NT
dishonesty up until 1976	on another drug matter and then extradited to Qld
HOPKINS, Damian	CA No 286 of	PRODUCTION:	29 yrs of age	Plea	3 yrs imp
1992	126 plants which was expected to produce a harvest of 10 pounds of	Minor unrelated prior	(very early
cannabis.	convictions.	indication of plea)
Sentenced on basis of being employed to help in tending and harvesting	Indicated plea at early	Admitted role to
the plants grown for a commercial purpose	stage	police when arrested
CACOPARDO,	CA 201 of 1984	PRODUCTION:	20 yrs of age	Plea	3 yrs rec parole after 12
David	1500 seeds planted in the Ingham area. Arrested as seeds were being	(18 at the time of the	months.
planted. Sentenced on the basis that he was by reason of his age under	offence)	(NOTE: reduced on
the influence of his father who was also charged. Area planted was	No prior convictions	appeal from a sentence
small, about _ of acre	of 5 yrs with a rec for parole after 2 yrs)
GRAHAM, Kieron	CA 52 of 1987	PRODUCTION:	20 yrs of age	Plea	2 yrs imp
(1987) 28	145 plants grown for a commercial purpose in a very sophisticated	No prior conviction	(NOTE: reduced on
A.Crim.R.382	underground nursery. 118 plants growing in the ground. Sentenced on	Without cooperation	appeal from a sentence
the basis that he played a lesser role in the cultivation than his father who	there was no evidence	of 3½ years imp)
was the principal offender. Total value $15,000	against himself
KENNEDY, Phillip	CA 516 of 1994	PRODUCTION:	Previous for possession	Plea	3½ years imp recently
David	374 plants located in back yard - all around 10cm high - 735g found in	of cannabis	reduced to 9 months on
house - commercial element	appeal
WATTS, Gregory	CA 8 of 1992	PRODUCTION:	37 years	Plea	15 months imp (supply)
John	24 plants - 300g cannabis and 500 seeds - admitted to 10-15 sales	No previous	12 months imp
totalling $2,000	(production) reduced to 9 months imp
IRVINE, Samuel	CA 535 of 1994	PRODUCTION & POSSESSION:	53 years	Plea	(1) $900 fine (no
Appeal judges stated there is a distinct practice of declining to record a	Previous non custodial -	conviction recorded)
conviction where an offender committed minor offences relating to	traffic offences	(2) $250 fine (no
cannabis. Following C of A judgments were considered: Devine v.	conviction recorded)
Fullalove (CA 155/1993), Graydon v. Dickson (CA 36/1993), Devine v.	(3) $150 fine (no
Shannon (CA 115/1993), Castles v. Backhouse (CA 75/1994), Wheeler	conviction recorded
(CA 359/1994).
v. Francis (CA 89/1994), R v. Andjelkovic (CA 182/1993); R v. Taylor of varying heights up to 2 ft. Also found was a container with seeds and another holding approximately 2 g of green leafy material. A pipe was used to smoke the cannabis. Applicant stated he was growing the cannabis for his own use.

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

SANDS, Ella	CA 234 of 1993	PRODUCTION:	53 years	Plea	2 years imp reduced to 1
17 plants - 7.9 kg of product found in house - co-accused husband	No previous	year imp on appeal
received 3 years reduced to 2 years' imprisonment on appeal
SANDS, Edward	CA 339 of 1992	PRODUCTION:	Previous convictions for	Plea	3½ years imp
Thomas	17 mature plants - an associated harvested crop of 7.9 kg (9 times	production of cannabis	cumulative reduced to 2
scheduled quantity) - street value $25,000-$30,000 - sentenced as one of	on two earlier occasions	years cumulative
two people involved in cultivation - cultivation was for a commercial	both receiving custodial
purpose	sentences - second production - possession of 618 plants - 5.5 kg of harvested crop
GRAHAM, Bruce	Supreme Court	PRODUCTION:	50 yrs of age	Plea	3 yrs imp
Rockhampton	500 plants: "Well watered and fertilised". Claimed another was the	No prior convictions
26 March 1990	principal operator of the crop. Participated in the cultivation at the beginning and involved in loading at least one load of cannabis for commercial distribution
KNICKEL, Warren	Supreme Court	PRODUCTION:	No prior convictions	Plea	3 yrs imp
Rockhampton	5,232 plants (some up to 1.6m high, not all healthy). Cultivation
3 April 1991	described as well advanced and cared for. Cooperated with police,
Demack J	provided a statement involving an accomplice and indicated willingness to give evidence. Involved in the cultivation over a lengthy period
STEWART, James	Supreme Court	PRODUCTION:	Early 30s	Plea	3 yrs imp
1 November 1993	2877 plants grown hydroponically in a house at Loganlea. Described as	No prior convictions
De Jersey J	a very substantial operation with house being protected by security screens, fencing. He was sentenced on the basis that he was more extensively involved than his co-accused HENARE. He did not have a
stake in the anticipated profits. Sentenced as a "worker" rather than a principal (see HENARE (1 yrs imp))
HASTIE, Alexander	Circuit Court	PRODUCTION:	30 yrs of age	Plea (ex-officio)	3 yrs imp rec parole 12
Cairns	763 plants grown for a commercial purpose in the Mt Molloy area.	months
30 Nov 1989	(Also see PAVIER (3 yrs imp & rec)
Williams J
PAVIER, Francis	Circuit Court	PRODUCTION:	50 yrs of age	Plea	3 yrs imp rec parole 12
Cairns	763 plants grown for a commercial purpose in the Mt Molloy area.	One prior for unlawful	(ex officio)	months
30 Nov 1989	(Also see HASTIE (3 yrs imp & rec))	possession
Williams J
SFORZA, Robert	Circuit Court	PRODUCTION:	Plea	3 yrs rec parole after 12
Toowoomba	3197 plants grown for a commercial purpose in Dalby area.	18 yrs of age	months
18 July 1991	Sentenced on basis of being a person employed in the tending of the	No prior convictions
Derrington J	crop. (Also see DALY (4 yrs imp & rec), SINGH (2 yrs imp & rec))
SPENCER, Geoffrey	Supreme Court	PRODUCTION:	43 yrs of age	Plea	3 yrs imp rec parole 1
21 May 1990	695 plants (586 growing in a shed - the balance growing wild in the	Old minor conviction	year
McPherson J	scrub) grown on the offender's property	(not relevant)
HICKSON, Peter	Supreme Court	PRODUCTION AND POSSESSION:	24 years of age	Plea	(1) 1½ yrs probation
John	27 Sept 1989	Accused was growing 328 cannabis plants. Accused told police	Previous - non-custodial	(2) 75 hrs community
cannabis was for own use but "I'd share it with friends".	- stealing	service and $500 fine
HELLMUTH, Ken	Supreme Court	PRODUCTION AND POSSESSION:	45 years of age	Plea	(1) 2 yrs imp suspended
6 Sept 1995	His Honour took into account accused's good character until he	Previous non-custodial -	for 3 years
experienced middle age crisis. His Honour accepted commercial	2 for possession of a	(2) 2 yrs imp suspended

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

element of offence.	dangerous drug (details	for 3 years
Accused had cultivated 318 cannabis plants at Lockhart River. Plants	not supplied)
were 1 to 2 metres high and quite mature. Accused was a recluse. was not employed at the time and has one child.

JENSEN, Robert	Circuit Court	PRODUCTION, SUPPLY AND POSSESSION:	40 years of age	Plea	(1) 2 yrs imp suspended
James	7 November 1995	Judge took into account no prev convictions, excellent work history, sole	No previous	for 3 years
parent, and positive response to rehabilitation.	(2) 2 yrs imp suspended
Accused was searched at home and police located 5547 gms of cannabis.	for 3 years
Accused admitted ownership, that he had grown it, that he had supplied	(3) 200 hrs community
on one occasion and had used his vehicle to get the crop. Since early	service
retirement accused had become idle and grew cannabis mostly for own	(4) 150 hrs community
use to treat pain of back condition. Cannabis was poor quality, operation	service
was not sophisticated and there was an unclear commercial purpose. Accused is sole parent with three teenage daughters.
BOLDERROW,	Supreme Court	PRODUCTION, SUPPLY AND POSSESSION:	24 years of age	Plea	(1) 9 months imp
Michael	1 Nov 1995	Judge stated that he had seen number of similar cases in regional areas	No previous	(2) 3 months imp
where struggling farmers turn to growing cannabis as cash crop.	(3) 7 days imp
Accused is farmer who was in financial difficulty and attempted to sell	wholly suspended for 9
cannabis crop. The quantity of cannabis was 927.5 gms valued at	months
$8000. Accused has wife and one child.
CARPENTER,	Supreme Court	PRODUCTION AND POSSESSION:	45 years of age	Plea	(1) 9 months imp
Garry George	2 April 1993	Accused was growing 450 gms cannabis plants on rented semi-rural	No previous	suspended for 1½ yrs
property with the possibility of selling cannabis. Quantity of cannabis	(2) 3 months imp
exceeded quantity in third schedule of Drugs Misuse Act. Accused has	suspended for 1½ yrs
de facto wife.
DIONYSIUS, Errol	Supreme Court	PRODUCTION AND POSSESSION:	38 years of age	Plea	(1) $7500 fine in default
John	6 August 1992	Judge did not accept that there was no commercial element. Took into	Previous non-custodial	3 months imp and 6
account the poor criminal history of accused as well as problems of	(1980) possession of a	months to pay
chronic anxiety and depression. Judge noted reports which suggest gaol	dangerous drug	(2) 3 years probation and
as unsuitable as accused could take his own life. Judge felt something	(1982) possession of	240 hrs community
had to be done to help rehabilitate accused. Stated sentencing in this	prohibited plant and	service conditional upon
matter was not easy.	utensil	psychiatric treatment
Accused lived on 26 acre property where he had been growing 304	(1992) producing a
cannabis plants. Also found were water buckets, garden tools and	dangerous drug
sprinklers. Accused was in possession of 321 grams of cannabis. from society. Also accused is user of cannabis, heroin and benzodiazepines.
NUNN, Garry	Supreme Court	PRODUCTION, SUPPLY AND POSSESSION:	36 years of age	Plea	1½ yrs imp suspended
Robert	15 Dec 1995	Judge stated that the accused's farm would go under if he was	Previous non-custodial -	for 3 years
imprisoned. Considered minimal previous convictions and early guilty	previous conviction for
plea.	possession of cannabis
Accused is a farmer who was having difficulty meeting his loan. He	(details not supplied)
grew cannabis with commercial intent. Accused is not addicted and sold for profit.
GROGAN, Jason	Supreme Court	PRODUCTION (Sched. 3):	24 years of age	Plea	1½ yrs imp suspended
Gary	29 Jan 1996	Judge noted no previous and good work history.	No previous	for 4 months
Accused was recruited to do cannabis crop sittings and was on site overseeing 300 plants for 7 days before arrested. He was asked to be on site by his girlfriend's father. Accused is employed with good work history.

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

DUXBURY,	Supreme Court	PRODUCTION AND POSSESSION:	50 years of age	Plea	1 yr imp suspended for 1
Leslie James	28 February 1993	Judge stated custodial sentence was not appropriate. Taking into	No previous	year.
account poor health of accused and isolated position of his residence, community service was also inappropriate. Took into account lack of previous history.
Accused was in possession of 230 cannabis plants ranging from seedlings to plants approx 20 centimetres tall. There was also quantity of seeds and 8.5 grams of green plant material. Accused was not prime mover in the scheme and was led into scheme by another. Both prosecution and judges were prepared to accept this but police were unable to gather evidence against another party.
WILSON, Raymond	Supreme Court	PRODUCTION AND POSSESSION:	34 years of age	Plea	1 yr imp suspended for 3
John	10 April 1995	Judge took into account the early plea of guilty and that accused had no	No previous	years on each charge.
previous convictions. Judge stated there may be a small commercial	(Conviction recorded)
considered that accused had cooperated with authorities and that this was an opportunistic crime and had not been planned.
element involved but was mainly for personal use only. Judge wallabies. He took approximately 400 of the plants to another site to plant for himself. Accused took the plants to another location because he thought wallabies and scrub turkeys would reduce the number of plants. There was no implication or allegations of intent to supply. Plants were very small at the time.
GREGG, Shane	Supreme Court	PRODUCTION AND SUPPLY:	19 years of age	Plea	2 yrs probation (No
Kelvin	9 May 1995	Judge stated he was worried about the large number of plants accused	No previous	conviction recorded)
had been growing. There were 179 cannabis plants ranging from seedlings to plants which were 5 feet high. Accused also supplied approximately 8 ounces of cannabis to his friend. Accused was not employed at time of offences and is addicted to cannabis.
BLENNERHASSIT	Supreme Court	PRODUCTION AND POSSESSION:	22 years of age	Plea	3 yrs probation and 240
S	6 Sept 1993	His Honour accepted drugs were for accused's own use. If it was	No previous	hrs community service
been imposed. Accused grew 507 cannabis plants in sophisticated hydroponic system.
commercial crop, sentence of at least 3 years imprisonment would have plants was approx. $200,000. Drugs were grown for accused's own use.
CUTURO, Vinko	Circuit Court	PRODUCTION:	Plea	3 yrs imp rec parole after
Cairns	456 plants (3 to 4 metres in height)	1 year
25 Sep 1992	Sentenced on basis he was drawn into offence by other offender (see
Helman AJ	JURKOVIC (4 yrs imp & rec))
HAY, Warren	Supreme Court	PRODUCTION:	47 yrs of age	Plea	2½ yrs imp
Rockhampton	1467 plants (8 to 9ft high) found growing in a shed on a bush property.	No prior convictions
25 July 1990	14 kilograms of harvested cannabis also found. Admitted to being the
Ryan J	sole offender. Well regarded in the community. Engaged in the operation in order to get money to deal with various medical problems afflicting the family (e.g. daughter wheelchair-bound, son schizophrenia). Judge said he was giving a very considerable discount for the offender's family situation and own injuries (back injury)
PARKER, Steven	Supreme Court	PRODUCTION:	Prior convictions	Plea	2½ yrs imp
14 June 1991	78 plants grown in an industrial shed at Carrara. Photographs taken by	including: prior drug

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

Williams J	offender of the crop at an earlier time indicated a more extensive	convictions for
cultivation. Setup described as indicating a "high degree of	possession cannabis
sophistication". Some of the crop had been sold prior to detection.	(1977), production cannabis (1989)

LOGAN, Kelvin	Supreme Court	PRODUCTION:	42 yrs of age	Plea	2 yrs imp
6 December 1991	50 plants grown in bushland which produced 16kg of leaf. Submitted	Prior drug convictions
Cooper J	that drug for own use, but intended if necessary to sell part of it at some	1980 poss cannabis 1982
future time. "Nothing to suggest this was a sophisticated operation".	cult cannabis (fine) 1983 poss cannabis x 2 (fine) 6 weeks in custody prior to sentence
SINGH, Madan	Circuit Court	PRODUCTION:	22 yrs of age	Plea	2 yrs rec parole after 6
Toowoomba	3197 plants grown for a commercial purpose in the Dalby area.	No prior convictions.	months
18 July 1991	Sentenced on the basis of being a person employed in the tending of the	In custody for unknown	(NOTE: in custody
Derrington J	crop. (Also see DALY (4 yrs imp & rec) and SFORZA (3 yrs imp &	period prior to sentence)	some unknown period
rec)).	prior to sentence(
McDERMID, Irwin	Supreme Court	PRODUCTION:	72 yrs of age	Plea	2 yrs rec parole after 3
Brisbane	75 plants (360 seedlings) grown for a commercial purpose	No prior	months
27 Sep 1988 Thomas J
HENARE, David	Supreme Court	PRODUCTION:	Early 30s	Plea	1 year imp
1 November 1993	2877 plants grown hydroponically in a house at Loganlea. Described as	Substantial history
De Jersey J	a very substantial operation with house being protected by security	including 3 prior
screens, fencing. Henare had only been involved in the project for about	convictions for
three weeks, being under the supervision of another. He was paid	possession of drugs
became involved. He did not have a stake in the anticipated profits.
$300.00 a week. The preparation of the house had been done before he imp))
DELLER, Brett	Supreme Court	PRODUCTION:	26 yrs of age	Plea	18 months imp rec
Brisbane	558 plants grown for a commercial purpose in the Lamington National	No prior drug	parole 6 months
19 March 1991	Park. Acted as a driver (once a fortnight for a period of 5 months) for	convictions, but old
Byrne J	the person who was tending the crop	conviction for which he
was given probation
McLENNAN,	Supreme Court	PRODUCTION:	21 yrs of age	Plea (at an early	18 months imp
Samantha	30 March 1994	7000 plants (many seedlings, some up to 3 metres high) 200 kg of	Minor prior convictions	stage)	suspended for 2 years
Williams J	harvested cannabis. 43kg of seed found by police in a sophisticated cultivation concealed by a large hay-shed in the Gin Gin area. Sentenced on the basis that she was a visitor to the property 2 to 3 days prior to police raid and her involvement was limited to a very small amount of work (also see MINEHAN (4yrs imp))
BOULUS, Joseph	Supreme Court	PERMITTING PREMISES TO BE USED:	62 yrs of age	Plea	18 months imp
13 October 1993	(Charged with permitting his property to be used for production) 557	4 months approx in pre-	suspended for 3 years
Lee J	plants growing on offender's property. Described as a substantial	sentence custody. No
operation (some plants up to 14 ft high). The crop was being grown by	prior convictions
the offender's two sons. Sentence on the basis that he was aware cannabis was being grown, that it was an operation larger than that for personal use, but not aware of exact size of crop.
THOMAS, Warren	Supreme Court	PRODUCTION:	43 yrs of age	Plea (ex officio)	1 y imp suspended
15 August 1994	Thomas was on the very periphery of a plan to cultivate 8100 plants (a	Old prior convictions -
number had either failed or been harvested by the time of police	no prior drug

TRIAL OR

NAME REFERENCE FACTS ANTECEDENTS PLEA SENTENCE

Byrne J	intervention) on a property near Roma. He was not known to the main	convictions
figures, being recruited by another into the plan in order to provide that person with some minor assistance by driving him around on one or two occasions, collecting some seeds and doing some paperwork. He was
not alleged to receive anything from the scheme. (Also see PANGALLO (8 yrs imp rec parole 3 yrs) ROMEO (6 yrs imp), ZUCCHELLI & DO (5 yrs imp))

PETHES, Joseph	Supreme Court	PRODUCTION:	21 yrs of age	Plea	1 yr imp suspended for 3
15 August 1995	Sentenced as a minor figure in the enterprise. Assisted in the "clean up"	No prior convictions	years
Shepherdson J	of a 14,000 plant crop site near Surat in the last four days of the production (see PACKER 6 yrs imp rec parole 21 months

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20 December 1996

I have read the joint reasons of McPherson J.A. and Thomas J. I am inclined

to think that one reason for the apparent discrepant treatment of cannabis growers

must be the nature of the governing legislative scheme. The maximum penalty in

the instant case is 20 years imprisonment, because the quantity of cannabis

exceeded that specified in the Third Schedule; there were more than a hundred

plants. That limit - a hundred plants - is alternative to another, namely 500 grams;

the total weight of seedlings and seeds was only about 3% of the weight limit (500

grams), but the effect of the Schedule is that if the drug consists of plants and the

weight is less than 500 grams, then the question becomes whether there were more

or fewer than a hundred plants.

There is what might be called a sliding scale, but it slides in a precipitous

fashion. If the amount of cannabis is less than the limit just discussed, then the

liability in the Supreme Court is to imprisonment for 15 years instead of 20 years; in

the instant case, had there been fewer than a hundred plants, weighing very much

more than here (but still less than 500 grams), the maximum penalty would have

gone down to 15 years. But, much more importantly, there would have been the

opportunity to have the case heard by a magistrate who could have imposed only a

2 year penalty.
a 20 year maximum penalty for quite similar circumstances is an odd one. In her This has produced some strange outcomes; the gap between a 2 year and

reasons in Kennedy (C.A. No. 516 of 1994, 20 February 1995), relied on for the

appellants, White J. referred to Lintott and Gilmore (C.A. Nos. 252 and 253 of 1993,

10 September 1993), where this Court altered sentences downwards. The facts of

the case, fortuitously, illustrate the point I have endeavoured to make above. There,

the quantity by weight was many times that which was in issue here; there was a

total of 490 grams of cannabis. But the number of plants was just under a hundred,

so that it became a Magistrates Court case. The seriousness of the offence, as a

cannabis production operation, does not appear to have been much less than in the

present case, but the maximum penalty was 1/10th - 2 years instead of 20 years. No

doubt that was a reason for the Court (Macrossan C.J., Davies J.A. and Cullinane J.)

having reduced the penalties imposed below to a suspended sentence for one

offender and a 3 month custodial sentence for the other.

The problem is, I reiterate, that the law has imposed two very different

penalties, one ten times the other, which may apply in circumstances of quite similar

criminality. It appears to me that the Court cannot, in fixing the penalty when the

case happens to be one which, although relatively minor, is determined in the

Supreme Court, completely ignore the consideration I have just mentioned.

Here, the weight of cannabis found was relatively trivial, in total - plants,

seeds and all - a little over half an ounce. It is true that this would not have been so,

perhaps, had the police found the operation a few weeks later, when at least some of

the seedlings would have become much larger plants, if all went well for the

cultivators, and they persisted. But one does not know that any substantial quantity

of cannabis would ultimately have been produced.
particularly that imposed on Applewaite, whose criminal history (apart from an In these circumstances, the sentences imposed seem to me questionable,

offence last year, in relation to which no conviction was recorded) is old and not

significant. Applewaite, unlike Jones, who has served a term for armed robbery, has

never been to prison before and his having entered into the venture was said to have

been due to a need for funds because of a then recent injury. Jones said that the

venture was his basically his idea, not Applewaite’s; the methods used were

amateurish rather than professional in character.

I think the penalty imposed upon both applicants was rather high, but it is difficult to

accede to Jones’ application because of his criminal record. I would dismiss Jones’

application and allow Applewaite’s; I would allow the appeal against sentence by

Applewaite and reduce his sentence by half, to 9 months.

1

Section 8(d) applies to Schedule 2 drugs (which include cannabis) where the quantity exceeds that in the third

schedule (which relevantly prescribes 500 grams or 100 plants).

2

e.g. Galluzzo CA 43 of 1996, unreported 15 July 1996, where the Court of Appeal upheld nine years' imprisonment, but recommended parole after three years for a fifty-six year old offender with health problems who had been the entrepreneur in three large plantations; Pangallo, sentenced by Ambrose J on 28 August 1995 - two productions by a person described as "foreman" level with a sophisticated plantation of 8100 plants - heavily involved in planning from the inception - eight years' imprisonment with recommendation for parole after three years; Farrugia - 40,000 plants - ringleader of a group of six - Charleville area - eight years' imprisonment ordered by Connolly J; Petrosanec - 12,500 plants - ringleader - eight years' imprisonment (parole recommendation after two and a half years) ordered by Shepherdson J.