R v Gardner

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Gardner [2015] QCA 70

PARTIES:

R
v
GARDNER, Kristen
(applicant)

FILE NO/S:

CA No 260 of 2014
SC No 304 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

1 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2015

JUDGES:

Margaret McMurdo P and Holmes JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of producing a dangerous drug, cannabis, in excess of 500 grams – where the applicant was sentenced to three years imprisonment on count 1 and five years imprisonment on count 2, with parole eligibility set after 15 months – where the applicant and his family were involved in large scale cannabis production on a cattle property owned by the applicant’s father – where the applicant assisted in cannabis production at the family property over two distinct periods – where the applicant taught the children present at the property how to maintain, weed and distinguish the sex of the cannabis plants – where the applicant also photographed the activities and assisted in weeding, maintenance and the installation of a water system – where following a police raid, the police found eight different cannabis fields and various sheds containing drying cannabis plants, with a total value of almost $70m – where following the present offences in Queensland, the applicant committed further offences in New South Wales – where the applicant pleaded guilty in the Lismore District Court and was sentenced to four and a half years imprisonment for cultivating and supplying cannabis in a large commercial quantity – where the applicant rehabilitated after his release from prison in New South Wales – where the applicant’s offending occurred between six and nine years before his sentence – whether this long delay should have been taken into account during sentencing – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v L; ex parte Attorney-General(Qld) [1996] 2 Qd R 63; (1995) 84 A Crim R 142; [1995] QCA 444, cited
R v Le Blowitz [1998] 1 Qd R 303; [1996] QCA 451, distinguished

COUNSEL:

S G Bain for the applicant
D R Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The applicant, Kristen Gardner pleaded guilty to two counts of producing a dangerous drug, cannabis, in excess of 500 grams.  He was sentenced to three years imprisonment on count 1 and five years imprisonment on count 2, with parole eligibility set after 15…

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Details
Case
[2015] QCA 70
Decision Date

CaseChat Overview and Summary

In the case of R v Gardner, the applicant challenged the severity of his sentence for producing cannabis in excess of 500 grams. The applicant had assisted in large scale cannabis production on a property owned by his father, and he was involved in the operation over two distinct periods. He had taught children present at the property how to maintain and distinguish the sex of the cannabis plants, and he also assisted in weeding, maintenance, and the installation of a water system. Following a police raid, the police found various cannabis fields and drying cannabis plants with a total value of almost $70 million. The applicant pleaded guilty to two counts and was sentenced to three years imprisonment on count 1 and five years imprisonment on count 2, with parole eligibility set after 15 months. The applicant appealed against his sentence, arguing that it was manifestly excessive.

The court had to determine whether the sentence was manifestly excessive or inadequate. The court considered the applicant's involvement in the large scale commercial production of cannabis, his plea of guilty, and the delay in sentencing. The court also considered the applicant's dysfunctional relationship with his father, who was the primary offender, and the applicant's rehabilitation following his imprisonment in New South Wales. The court concluded that the sentence was neither crushing nor excessive, taking into account the totality principle, the applicant's plea of guilty, his limited role, and the insidious influence of his father.

The court refused the application for leave to appeal against sentence, finding that the sentence was appropriate given the nature and seriousness of the offence and the applicant's involvement in the cannabis production business. The court noted that the applicant had voluntarily returned to assist in his father's large scale cannabis business after escaping the influence of his father and finding work in Canada. The court also considered the applicant's subsequent involvement in another large scale commercial cannabis production to fund his family's legal defence on criminal charges. The court found that the sentence reflected the applicant's plea of guilty, his limited role, and the insidious influence of his father, and that it was not manifestly excessive or inadequate.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The sentencing judge noted the applicant’s excellent references. He was in maximum security because of the offences alleged against him in Queensland and would have to serve his sentence outside the Lismore area. This would impact on family accessibility. Since his imprisonment in New South Wales he had assisted the Corrective Services authorities by carrying out electrical work. He was trying to improve himself and his many talents could be developed in a productive and useful way in the future. It seemed he had excellent prospects of rehabilitation. His imprisonment meant that he had been unable to be part of his young child’s life and this was a source of deep regret. His timely plea warranted a full discount of 25 per cent. The charges, however, were serious and socially unacceptable. The appropriate penalty was six years imprisonment but the judge reduced that to four and a half years to commence on 25 April 2009 when he was first incarcerated. The judge found special circumstances warranting a non-parole period to expire on 24 July 2011 so that the applicant served two years and three months in custody prior to his release on parole.The facts of the present offending The applicant, his father, Michael Gardner Snr, and his father’s family were involved in large scale cannabis production. Michael Gardner Snr and his then wife, Ms Kelly Millard, purchased a property for that purpose located in an isolated area between Stanthorpe, Texas and Inglewood. It appeared to be a legitimate cattle property. Michael Gardner Snr was the primary offender. Ms Millard, her children, aged between 11 and 13, the applicant’s brother, Michael Gardner Jr, and many other family members were involved. The applicant’s relationship with his father was volatile and characterised by serious conflict. Michael Gardner Snr was sentenced to 13 years imprisonment on 13 June 2012 for trafficking in cannabis between 1 June 2004 and 17 December 2008. He will serve 10.4 years before becoming eligible for parole. The applicant assisted in cannabis production at the family property over two distinct periods. He was at most an occasional user of cannabis and was not an addict. His involvement in count 1 between January and September 2005 was to assist and set up the property for large scale production. He attended the property about eight times. He taught the children present to maintain the cannabis plants, to distinguish their sex, to discard unwanted male plants and to weed. At the end of the period charged as count 1 he left to travel overseas where he lived and worked until his father persuaded him to return. He then continued to assist in cannabis cultivation from September 2007 until 30 June 2008 when police executed a search warrant. During the second period, he documented and photographed the activities of others for a documentary film he hoped to produce. He built a second base camp closer to a new area of cannabis cultivation and assisted with the installation of a water system, weeding and maintenance. He was experienced in cannabis cultivation and had published articles in overseas publications on that topic and concerning his abusive father. Michael Gardner Snr was the primary offender. He controlled all aspects of the cultivation including the distribution of the profits of the illicit business. He often reneged on agreements with family members for distributing profit. He sold the cannabis for $2,400 per dry pound.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant’s brother-in-law, Benjamin Sutherland, pleaded guilty to producing cannabis in excess of 500 grams on the basis that he worked on the family property, initially planting cannabis in November 2007 and then harvesting and packing it in 2008. There was no evidence that he was directly paid for his efforts. He returned with his partner many times in early 2008 and assisted in the harvest of about 600 pounds of cannabis at the end of April 2008. After Michael Gardner Snr’s arrest this was sold and the proceeds used to fund legal fees, including Mr Sutherland’s. He was not aware the legal fees were being funded in this way. He had no criminal history. He was sentenced to 18 months imprisonment wholly suspended for an operational period of three years.Conclusion The sentencing of this applicant involved a delicate weighing of competing considerations. His persistent involvement over many years in the large scale commercial production of cannabis is recognised by the law in both Queensland and in New South Wales as serious criminal conduct warranting stern penalties to ensure personal and general deterrence. The maximum penalty for each of the present offences was 20 years imprisonment and each was a moderately serious example of the offence. The applicant played a not insignificant role during two periods, each of about nine months, in a huge cannabis cultivation business. The offending occurred, however, between six and nine years before his sentence. This delay was because, after the commission of those offences and knowing that he was likely to be charged with them, he committed like offences in New South Wales to fund his family’s legal costs. This subsequent offending placed him in a much more serious category of offender than all his co-offenders, if he were sentenced for all his offending together, other than his father. Nor did he have the benefit, as did some of his co-offenders, of s 13A Penalties and Sentences Act. The sentences imposed on his co-offenders are of limited assistance in determining the appropriate sentence for the applicant. This case raised a number of important sentencing principles. One was the need to ensure that the overall sentence imposed for all his offending, including the New South Wales offending, was not crushing: Mill v The Queen.[1] Another was whether the extraordinary delay before sentence on the Queensland offences warranted mitigation because, first, the applicant had a resulting lengthy period of uncertainty and stress and, second, because he rehabilitated during the period of delay: R v L; ex parte Attorney-General (Qld).[2] The applicant’s dysfunctional relationship with his violent and manipulative father and the applicant’s plea of guilty were also important considerations.[1](1998) 166 CLR 59.[2][1996] 2 Qd R 63. The principal factor in so far as the totality principle is concerned is whether, had the applicant been sentenced for all his offending in both Queensland and New South Wales, the effective, total sentence (nine and a half years imprisonment with parole eligibility after three and a half years) would be unjust and crushing. The applicant’s counsel understandably did not embrace that contention. The applicant, during three quite separate periods, involved himself in producing large quantities of cannabis for commercial gain. As the sentencing judge for the present offences recognised, having escaped the clutches of his manipulative father and found satisfying work in Canada, he voluntarily returned, aged in his early-thirties, to again assist in his father’s large scale cannabis business. Then, as a mature man, knowing he was to be charged with those offences, he involved himself in another large scale commercial cannabis production to pay for lawyers for his family’s legal defence on criminal charges. According to the law of Queensland and New South Wales, such conduct warranted a firm deterrent sentence. An effective, total sentence of nine and half years imprisonment with release on parole after three and half years imprisonment to reflect his plea of guilty, his limited role, and the insidious influence of his father, was neither crushing nor excessive.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.