R v Fourneaux No. Sccrm-97-340 Judgment No. S6642

[1998] SASC 6642

R  v  FOURNEAUX

Court of Criminal Appeal:  Doyle CJ, Millhouse and Nyland JJ
DOYLE CJ
This is an appeal against sentence. The appellant was convicted upon the verdict of a jury for the offence of producing cannabis contrary to s.32(1)(a) of the Controlled Substances Act. The number of plants being produced was 65 plants. Accordingly, the maximum sentence that the appellant faced was imprisonment for 10 years or a fine of $50,000 or both.
The judge sentenced the appellant to imprisonment for four years six months and fixed a non-parole period of two years three months.
The appellant complains of the severity of the sentence, and of the disparity between the sentence imposed upon him and that imposed upon two co-offenders.  Each of them was sentenced to imprisonment for 18 months with a non-parole period of nine months.  In each case, the judge suspended the sentence.
The plants were being grown hydroponically in a rented house.  All of the plants were female plants, so there was no reason to cull any of the plants from the crop.  The plants were, the judge said, capable of producing a heavy crop.  The judge described the growing system as sophisticated and said that the operation was obviously commercial.  I agree with all of that.
The judge found that the appellant was a willing and active participant in the project and that, of the three offenders, the appellant played the leading part and was, in effect, the manager of the project.
That finding was open to the judge.  The argument that the judge should have found that the appellant was manipulated by another person is, in my opinion, without any substance.  The judge heard the evidence and made his finding.  There are no mitigating circumstances at all, in my opinion, about the offence.
Counsel for the appellant argued that many of the plants were seedlings and that only one was fully developed.  That, in my opinion, is of no great significance.  There is every reason to think, as the judge found, that the crop would have matured in due course.  There is every reason to think that a substantial crop would have been produced.  It is not a mitigating circumstance that the enterprise was interrupted at an early stage.  I reject that submission.
It was also submitted that the matter had been delayed through no fault of the appellant and that the delay had had a not insignificant impact upon him in relation to his personal affairs.  I am not convinced that that is of any great importance but, in any event, the judge specifically referred to that factor.  It is, however, a matter to be taken into account.
The appellant was 51 years of age.  He has a record that includes about 15 offences between 1979 and 1992.  Some were quite serious offences.  He has previously been imprisoned.  I can find nothing by way of mitigation in the appellant's personal circumstances or background.
Counsel submitted that the judge put too much weight on the appellant's record.  I disagree with that submission, at least in relation to the fixing of the head sentence.  He said that the appellant's record was such that he could not expect leniency, and with that I agree.
That brings me to the sentence imposed.
Is the sentence, which is clearly a heavy sentence, manifestly excessive, bearing in mind the absence of any mitigating circumstances?
I repeat that the appellant played a major part in a commercial operation and the seedlings could be expected to produce a heavy crop, in due course.  I will return to the question of whether the sentence was excessive, in a moment.  I turn to the question of disparity.
One of the other two offenders was younger, being aged about 20 years when sentenced and 18 years at the time of the offence.  The other was about 42 years of age.  The judge found that each of them played a minor part, and that their involvement was relatively casual.  The appellant, on the other hand, was the effective manager of the crop.  One of the other offenders had no previous convictions.  The other, the man of 42 years, had some convictions, but apparently they were not for serious offences.  Each of them pleaded guilty, although only on the second day of the trial.
I note then that the pleas came relatively late, and that the discount for such a late plea cannot be much.  The judge said that the discount that he gave, from a starting point of 4 years, down to 18 months, was on account of all the mitigating factors.  In the broad, these were the lesser role, the plea and the better records.
While the treatment of the other two offenders was quite lenient, there were grounds upon which the judge was entitled to differentiate quite significantly between them and the appellant.  It cannot be said that a significant difference between their treatment would give rise to a legitimate sense of grievance but, again, at this point, the question can be said to be whether the difference between them was such as to justify a sentence for the appellant three times higher than that imposed upon the others.
I now return to the two key issues of whether the sentence was manifestly excessive and whether the disparity can be justified.
In my opinion, it may be that, when regard is had to other sentences imposed by this court, the sentence was too severe.  I have said before that I consider that the sentences currently being imposed for this offence probably require reconsideration, and this case reinforces that view.  Were it not for the fact that this sentence does appear to be out of line with other sentences imposed, I would have regarded it as appropriate, but the comparison does suggest that it is too heavy.  However, I do not have to decide that.  I do not have to decide it, because, quite apart from that, I consider that the three-fold difference in the penalty imposed - that is, a three-fold difference between the penalty imposed on the appellant and the others - is not warranted by the differences in their circumstances to which I have referred.  Therefore, I consider that the sentence was excessive in comparison with that imposed on the others, and that the disparity is such as to give rise to a legitimate sense of grievance.
For that reason, in my opinion, the court should interfere and should substitute a sentence of 3 years 6 months imprisonment and fix a non-parole period of 2 years.
MILLHOUSE J:   I agree.
NYLAND J:        I agree.
DOYLE CJ:        Accordingly, the order of the Court is as follows:
ORDER:

1. Appeal allowed.

2. Set aside the sentence imposed by the District Court.

3. Substitute a sentence of 3 years 6 months’ imprisonment and, in relation to that head sentence, fix a non-parole period of 2 years.

4. Order that the sentence commence from 3 November 1997.