R v Foster - [2017] QCA 183

[2017] QCA 183

COURT OF APPEAL

SOFRONOFF P
PHILIPPIDES JA
FLANAGAN J

CA No 89 of 2017
DC No 1797 of 2016
DC No 297 of 2017

THE QUEEN

FOSTER, Adam Peter Applicant

BRISBANE

FRIDAY, 25 AUGUST 2017

JUDGMENT

SOFRONOFF P: This is an application for leave to appeal against sentence. The applicant was convicted on his pleas of guilty to five counts. Count 1 was that he unlawfully produced the dangerous drug cannabis; the learned District Court judge sentenced the applicant to a term of imprisonment of 12 months. Count 2 was a charge of unlawfully supplying a dangerous drug, cannabis, to another person; the sentence was one of imprisonment for nine months. Count 3 was a charge of possession of extensive equipment used for the production of a cannabis crop; the applicant was sentenced to a term of imprisonment of six months. Count 4 was a charge that the applicant unlawfully had in his possession a dangerous drug, Stanozolol; the applicant was sentenced to a term of imprisonment of three months. Count 5 was a charge of possession of instructions for producing a dangerous drug, cannabis; the applicant was sentenced to a term of imprisonment of three months. The applicant was also charged with three summary offences relating to his possession of a rifle, ammunition for that rifle, and certain utensils that had been used for the consumption of drugs. It is not necessary to mention the summary offences further.

The applicant owned a house. He agreed to permit another man, Daniel Heazlewood, to move into his house in order to use a room to grow cannabis. The equipment used to produce cannabis, which was the subject of count 3, belonged to Heazlewood. Heazlewood moved into the applicant’s house to set up his equipment with which to grow his crop. The extent of the applicant’s assistance in this project was to cover a window in the room that was being used for the cultivation with aluminium foil. It was Heazlewood who tended to the crop. The arrangement between the applicant and Heazlewood was that Heazlewood would pay rent and would reimburse any costs incurred by the applicant in the conduct of this project by Heazlewood. There were expected to be extra costs incurred by the applicant in relation to electricity.

Heazlewood’s first crop failed; the second crop was successful. According to the applicant’s admissions to police, two to three pounds of cannabis were produced. Heazlewood sold this and received about $10,000, half of which he paid to the applicant, pursuant to the arrangement between them, but which did not entirely discharge the debt which Heazlewood owed to the applicant.

Heazlewood had been the subject of interest to the police in relation to a murder investigation, and for this reason, they had engaged in electronic surveillance of him. From that source, they formed the view that the applicant and Heazlewood were producing cannabis in the applicant’s house.

Upon his arrest, the applicant voluntarily participated in a record of…

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 R v Foster

Details

AGLC: R v Foster [2017] QCA 183
Case: [2017] QCA 183
Decision Date: 25 AUGUST 2017

CaseChat Overview and Summary

In the case of R v Foster, the applicant sought leave to appeal against his sentence for drug-related offences. The applicant had pleaded guilty to five counts of cannabis production and possession, and was sentenced to terms of imprisonment totalling 33 months. The applicant’s involvement in the drug production was limited, as he allowed another individual to grow cannabis in his house in exchange for rent and reimbursement of expenses. The applicant’s culpability was considered low due to his lack of criminal history, cooperation with police, and early plea of guilty. The Court of Appeal found that the sentencing judge had erred in considering the commercial element of the offending as a basis for a custodial sentence. Instead, the Court of Appeal considered the applicant’s limited involvement and culpability, and decided to suspend the sentence for a period of two years.

The legal issues in this case involved the appropriate sentence for drug-related offences, and the factors to be considered when determining culpability and the severity of the sentence. The Court of Appeal considered previous cases involving drug production and the factors that influenced the sentencing decisions. The Court of Appeal found that the sentencing judge had erred in focusing on the commercial element of the offending, rather than the applicant’s limited involvement and culpability. The Court of Appeal also considered the special factors relevant to sentencing, such as the applicant’s lack of criminal history and cooperation with police.

The Court of Appeal found that the applicant’s involvement in the drug production was limited to allowing another individual to grow cannabis in his house in exchange for rent and reimbursement of expenses. The Court of Appeal considered the applicant’s limited involvement and culpability, and decided to suspend the sentence for a period of two years. The Court of Appeal found that the sentencing judge had erred in considering the commercial element of the offending as a basis for a custodial sentence. The Court of Appeal also considered the special factors relevant to sentencing, such as the applicant’s lack of criminal history and cooperation with police. The Court of Appeal found that the appropriate sentence for the applicant was a suspended sentence for a period of two years. The Court of Appeal granted leave to appeal against the sentence and set aside the original sentencing order. The Court of Appeal ordered that the terms of imprisonment be suspended after serving a period of 15 days’ imprisonment, and the defendant must not commit another offence punishable by imprisonment within a period of two years if the defendant is to avoid being dealt with for the suspended term of imprisonment.

Orders