R v Ball

[1999] QCA 427

99.427

COURT OF APPEAL
McPHERSON JA
DAVIES JA

JONES J

CA No 250 of 1999
THE QUEEN
v.
COLIN JAMES BALL

(Applicant) Appellant

BRISBANE
..DATE 08/10/99
081099 T4/MT1 M/T COA 243/99
JONES J: Colin James Ball appeals against the sentence
imposed on him in respect of his conviction for two
offences; unlawful production of the dangerous drug,
cannabis sativa and possession of the dangerous drug,
cannabis sativa. In each case the quantity of the drug
exceeded 500 grams. He was sentenced to 18 months
imprisonment to be suspended after six months with an
operational period of three years. The ground of appeal is
that the sentence was manifestly excessive.
The drugs were found in the appellant's home in suburban
Brisbane by police on 30 December 1998. When first
apprehended the appellant denied having any drugs on his
premises. A search of his back yard however revealed
12 growing cannabis plants varying in height from
40 centimetres to 1.2 metres. These were noted to have a
weight of six kilograms. In the opinion of Detective
Sergeant Carnes these plants would have yielded two
kilograms of dried cannabis.

Inside a locked bar fridge in the residence the police discovered five clipseal bags each containing dried cannabis leaf to a weight of 450 grams - the imperial equivalent being one pound which is the term used in transactions in respect of this drug. A further small quantity was found in a swimming pool scoop. The total quantity of the drugs and the manner in which it was packaged was highly suggestive of a commercial element.

081099 T4/MT1 M/T COA 243/99
The learned sentencing Judge was entitled to infer as he did
that the appellant was growing the plant partly for his own
use and partly for some commercial motive - the latter being
for sale or for sharing. But His Honour was not entitled to
find that by sharing that the purpose was "commercial". In
this sense he fell into error and because of that it is
necessary for this Court to consider the sentence again.
His Honour did not accept explanations given on the
appellant's instructions as to how the drug came into his
possession.

On all the evidence adduced at the sentencing hearing I myself would be prepared to conclude that there was a commercial purpose. Accepting the classification terminology used in The Queen v. Applewaite I would note that the planting was small in terms of the number of plant. The plants were arranged so as to be less readily detected but the operation was not in any sense sophisticated nor capable of producing a large quantity of the drugs.

Counsel on behalf of the appellant argues that even allowing for a commercial element as found by His Honour, and now as found by myself, the circumstances call for a non-custodial penalty or a wholly suspended sentence. He points also to the fact that the applicant used the drug in relief of a painful shoulder condition which he had suffered for over ten years.

081099 T4/MT1 M/T COA 243/99
The applicant has no relevant prior criminal history, has a
good work record and family background. He gave early
notice of an intention to plead guilty. These latter
features no doubt influenced His Honour as it would
influence me to partially suspend the sentence.

Taking into account the comparative decisions referred to by counsel I have come to the view that the appropriate sentence in this case would be a period of imprisonment for 12 months to be suspended after serving a period of three months' imprisonment. I would impose an operational period for the suspended sentence of three years. In those circumstances I would allow the appeal and make orders in those terms.

McPHERSON JA: I agree. Specifically what the learned sentencing Judge said was: "You were growing this plant partly for your own use and partly for some commercial motive, be it to sell to people or to share it with your friends."

"Sharing with friends" does not seem to me to be capable of being regarded as a commercial purpose, or the product of a commercial motive; at least, there is nothing in the evidence that I can see that would justify such a conclusion in this case.

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It nevertheless seems to me that, as has been said by
Jones J, the commercial purpose is properly to be inferred
in this case. For that reason, I agree with His Honour's
reasons on that point and with respect to the sentence which
should be substituted on this appeal.

DAVIES JA: I also agree with the reasons and the orders proposed by Justice Jones and the further remarks of the presiding Judge.

McPHERSON JA: The orders will be as they have been stated by Justice Jones.

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