R v Holmes

[2009] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holmes [2009] QCA 269

PARTIES:

R
v
HOLMES, Toni Ann
(applicant)

FILE NO/S:

CA No 23 of 2009
SC No 61 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2009

JUDGES:

Keane and Muir JJA, and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.          Application for leave to appeal against sentence refused.

2.          The reasons for judgment of Keane JA and Fryberg J handed down to the parties on 11 September 2009 and marked 'A' and 'B' respectively be not further published and that a copy thereof be placed in a sealed envelope together with a transcript of that part of the proceedings which was not conducted in open court, and that it be opened only by order of the court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

Criminal law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Particular instances

Drugs Misuse Act 1986 (Qld), s 6(1)(d), s 8(d)
Justices Act 1886 (Qld), s 110A(5)(c)(ii)
Penalties and Sentences Act 1992 (Qld), s 188(2)

COUNSEL:

D S Shepherd for the applicant
P Rutledge for the respondent

SOLICITORS:

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

1. KEANE JA: On 2 February 2009 the applicant was convicted on her own plea of two offences. The first was producing the dangerous drug cannabis in excess of 500 grams contrary to s 8(d) of the Drugs Misuse Act 1986 (Qld) ("the Act") between 31 October 2005 and 19 January 2007. The second offence was supplying the dangerous drug cannabis contrary to s 6(1)(d) of the Act on a date unknown between 31 October 2006 and 25 December 2006. The maximum penalty for the first offence was 20 years imprisonment, and the maximum penalty for the second offence was 15 years imprisonment.

1. I have concluded that the sentence imposed on the applicant was not manifestly excessive.  Because I have reached that conclusion for reasons upon which argument was heard in camera, my reasons are set out separately and are to be sealed after being handed down to the parties.

1. In my opinion the orders which the Court should make are:

1.          The application for leave to appeal against sentence should be refused.

2. The reasons for judgment of Keane JA and Fryberg J handed down to the parties today and marked 'A' and 'B' respectively be not further published and that a copy thereof be placed in a sealed envelope together with a transcript of that part of the proceedings which was not conducted in open court, and that it be opened only by order of the court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).

1. MUIR JA:  I agree with the reasons of Keane JA and with the orders he proposes.

1. FRYBERG J:  On 2 February 2009 Ms Holmes and her partner, Mr Zerek, each pleaded guilty to one count of unlawfully producing cannabis sativa in a quantity exceeding 500 g between October 2005 and January 2007, and one count of unlawfully supplying that drug to another person.  On the first count Mr Zerek was sentenced to imprisonment for 3½ years suspended after serving 14 months for an operational period of five years; and on the second count to imprisonment for 18 months to be served concurrently and to be suspended after serving six months for an operational period of three years.  Ms Holmes was sentenced to imprisonment for three years on the first count, suspended after serving 11 months for an operational period of four years; and to imprisonment for 18 months on the second count, to be suspended after serving six months for an operational period of three years and to be served concurrently.  Ms Holmes now seeks leave to appeal against the sentence imposed on her on the first count.

The facts

1. The offences took place on and adjacent to a cattle property known as “Ironie”, some 60 km southeast of Biggenden, owned by one Clarence Joseph Ward.  Ms Holmes and Mr Zerek went to that property in mid-2005 at about the time Mr Ward, aged about 72, suffered a stroke.  Mr Zerek had worked there previously.  It was arranged that Ms Holmes would act as a carer for Mr Ward, drawing a carer's allowance from the Commonwealth Government, and that Mr Zerek would work on the property.  In September 2005 Ms Holmes took over bookkeeping for the property in addition to caring for Mr Ward, whose needs were not demanding.  The property was operating at a loss and Ms Holmes and Mr Zerek received little remuneration for their work.  Consequently, Mr Ward proposed to Mr Zerek that the latter help him grow cannabis in the State forest adjoining the property.  Apparently Mr Ward had previously grown cannabis in that forest.  Mr Zerek agreed to assist.  Thereafter, he, Mr Ward and Mr Ward's son regularly went into the forest to where Mr Ward had established his marijuana plantation.

1. Ms Holmes became suspicious of their comings and goings on quad bikes and confronted Mr Ward.  He told her that he was growing cannabis because he was afraid he would lose his farm and that he had to find some money or he would go under.  She did not immediately become involved in the plantation, but some time after September 2005 Mr Ward took her to it.  In the words of the statement which she subsequently gave to police:

“I then over the course of the following months I just provided what ever assistance was required on that crop site.  I would go to the crop site about 2-3 times a week, and mostly I would take both [Mr Zerek] and [Mr Ward] lunch while they were on the crop site.”

She tried to count the plants but was not sure of the number.  They were taller than she was; her statement records, “They looked like trees not plants”.  She helped with the plantation by pulling out male plants where she was able to do so and planting seedlings if she saw a spot in which to do so.  She became aware of several pumps and a dam designed to provide water for the plantation.

1. By mid-2006 the plantation was in very poor condition as a result of either drought or the misapplication of pesticide or both.  Mr Ward and his son decided that all the plants should be pulled up and that was done.  A new crop was planted in an area closer to water in August and September 2006.  Ms Holmes was in Perth in August but on her return in September helped with the planting and subsequently with watering the plants and removing the male plants.  It was agreed that for her efforts she would receive one-third of the profit from the crop.

1. Ms Holmes and Mr Zerek claimed that their relationship was sometimes a violent one and there was a suggestion that at one time, Mr Zerek forced Ms Holmes to return to the property.  To what extent this was accepted by the judge below is unclear.  His Honour said in sentencing Ms Holmes:

“The circumstances in which you found yourself involved in this are unfortunate.  You just seem to have found yourself in a particular domestic situation in which you thought that the best way forward for you was to go along with this.”

Counsel for Ms Holmes submitted in this Court that despite the relationship, “She felt she had to stay and work in order to get out”.

1. By mid-January 2007 police had become aware of the existence of the plantation and had it under observation.  Early in the morning of 18 January they observed Mr Zerek, Mr Ward and Ms Holmes arrive at the site and start working on plants.  Mr Ward left after some time but the others kept working.  The police moved in and arrested them.  Both were interviewed and made full admissions about their involvement and assisted the police during the subsequent search.

1. Police found 3,382 plants in and near the plantation.  A representative sample of 215 plants was analysed and found to weigh 54.76 kg with the roots removed.  The site was surrounded by a chicken wire fence, the plants were generally in rows and were being watered by an irrigation system of hoses and sprinklers from a waterhole on Mr Ward's property.  The site was well maintained and a number of the plants appeared to have been trimmed near the flowering head stems.  Uprooted male plants had been thrown on the ground.  A shed constructed in the bush near the crop contained 14.3 kg of cannabis wrapped in tarpaulins, plastic wrappings and bags.  This was a drying shed and it contained stands with racks, a generator and a light.  The racks held 4.16 kg of drying cannabis.  Flow from the nearby creek had been redirected and the dam constructed.  Ms Holmes directed police to a further drying rack in the loft of a shed beside Mr Ward's house and an unweighed quantity of dried cannabis packaged in styrene boxes.

1. The Drug Squad valued the crop at $8.2 million.  Ms Holmes disputed that valuation but even on her approach, the crop was worth over $1 million.

1. Ms Holmes took part in a field interview in which she made substantial admissions and she made a formal statement dated 19 January to a Senior Constable Wood.  That statement was supplemented by an addendum dated 7 February 2007.  There are several inconsistencies between the two statements.  Ms Holmes subsequently consented to the presentation of an ex officio indictment charging the two offences to which she pleaded guilty.  Two years after making the statements, on the day of sentencing, Ms Holmes signed the statements.

The findings of the sentencing judge

1. The judge's findings were based on a statement of agreed facts tendered to the court.  The original had been signed by both defendants.  It was an unfortunately worded document.  Events do not appear to be recorded in chronological sequence and, perhaps because of this, they are to some extent inconsistent with the two statements signed by Ms Holmes.  During submissions by counsel for Ms Holmes that her conduct was less serious than that of Mr Zerek, it emerged that she did not agree with some of what was in the agreed statement.  The prosecutor did not seek to go into evidence or require Ms Holmes to give evidence.  However she called his Honour's attention to the contents of Ms Holmes’ two statements.

1. His Honour found that Ms Holmes was not involved in the first (unsuccessful) crop, nor in the initial planting of the second crop, the one found by police. That finding derives from the confused statement of agreed facts. It is inconsistent with paras 21-27 of Ms Holmes’ first statement and para 23 of the addendum statement, which clearly show her involvement in the first crop; and paras 31-35 of the addendum statement which clearly showed her involvement in planting the second crop. Those were the documents which Ms Holmes signed on the day of sentencing and which were acknowledged pursuant to s 110A(5)(c)(ii) of the Justices Act 1886.  In my judgment they provide a surer foundation for finding facts than the confused statement of agreed facts.

1. That said, it still appears that Ms Holmes’ level of participation was less than that of Mr Zerek.

Personal factors

1. Ms Holmes was aged 49-50 at the time of the commission of the offences.  She had no criminal history.  To some extent she was under the influence of Mr Zerek, who had on at least one occasion inflicted violence on her and prevented her from leaving.  She cooperated fully with police and pleaded guilty on an ex officio indictment.  It could reasonably be inferred from her cooperation and from a number of favourable references which were tendered that there was a low risk of her reoffending.  Nonetheless, as his Honour said:

“[O]ver some time you were an active participant in what was a very serious criminal activity.  … [T]his was a very large production and one which, whether you realised it or not, was extremely valuable.”

The grounds of the application

1. Ms Holmes submitted that the sentence was manifestly excessive because the judge failed to give sufficient weight to the mitigating factors, and for another reason upon which argument was heard in camera.

1. Ms Holmes submitted that the ultimate sentence imposed on her failed properly to recognise her plea of guilty to an ex officio indictment, her level of cooperation with the police up to the time of sentencing, the circumstances of her involvement in the offences, her lack of criminal history and her personal circumstances (including the fact that the chance of her reoffending was low).  I am quite unable to understand how the circumstances of her involvement in the offences could constitute a mitigating factor.  It is unnecessary to debate whether her lack of criminal history is correctly characterised as a mitigating factor; it is certainly a relevant consideration.

1. Counsel for Ms Holmes submitted that she could have expected that a suspension after one-third of the sentence had been served would have been allowed merely for a plea of guilty.  It followed that the additional cooperation provided by Ms Holmes warranted an earlier suspension.

1. The difficulty with that submission, as counsel tacitly recognised, is that there is no hard and fast rule that a plea of guilty must attract suspension or parole release at a point one-third through the sentence.  The judge's task was to recognise all of the mitigating factors.  He did so by suspending the notional sentence after one-third of it had been served.  It is true that Ms Holmes had signed statements admitting her guilt, but she did so only after her intention to plead guilty had been notified to the Crown.  It is true that she offered full cooperation to the police at the time she was apprehended, but it must be remembered that she was caught red-handed.  It was a strong Crown case.  It does not seem to me that the recognition given to mitigating factors was inadequate.

1. Were I of a different opinion and required to determine the sentence for myself, I would approach the process on the basis of the facts set out above, not the facts as found by his Honour.  The consequence of that approach would be that the head sentence of four years adopted as the notional starting point for the calculation would be too low for that purpose.  Having regard to the conclusion which I have reached, it is unnecessary to elaborate on my reasons for that view.

1. My reasons for rejecting Ms Holmes’ alternative argument are filed confidentially.

1. In my judgment Ms Holmes has not demonstrated that the sentence imposed on her was manifestly excessive.

Order

1. I agree with the orders proposed by Keane JA.