R v Hopkins

[1993] QCA 33

[1993] QCA 033

COURT OF APPEAL

FITZGERALD P
DAVIES JA

McPHERSON JA

CA No 286 of 1992
THE QUEEN
v.

DAMIAN RUDD HOPKINS

BRISBANE
..DATE 4/2/93

McPHERSON JA: The applicant for leave to appeal against sentence is Damian Rudd Hopkins. He was convicted on his own pleas of guilty in the Supreme Court at Rockhampton on an indictment charging 3 drug offences. The offences of which he was convicted, and the sentences imposed in respect of each were producing cannabis sativa between September and December 1991; supply of cannabis during the same period, possession of a quantity of cannabis, exceeding 500 grams in amount of weight. The sentences were 3 years in respect of the first count, 2 years in respect of the count of supply, and 2 years in respect of the possession charge. The sentences were to be served concurrently, so that the effective sentences were 3 years. The grounds advanced in support of the application really come down to this.

That the applicant pleaded guilty, and ought to have been given

the benefit of a recommendation for early parole.

The circumstances of the offence disclose that the cultivation was not to be considered small in value or in extent, and must, I think, properly be regarded as one undertaken for commercial purposes. The account given of it in the Judge’s sentencing remarks is to the following effect. He accepted the material placed before him, which his Honour said showed that the applicant had gone to a property in Mountain View in Miriam Vale at a time when he was quite desperate for work. He found there that he was expected not only to engage in activities like fencing and general upkeep of the property, but was also given the opportunity, as his Honour expressed it, of looking after some marijuana plants already growing there, as well as of increasing the number of plants that would be grown there. As a result of his efforts, a small plantation of over some 100 plants was established, and was growing at the time the police visited the property in December 1991. The total weight of the plants torn up was in excess of 13 kilograms. Most of them were less than a metre in height, but taken all together, his Honour thought there was scope for a substantial crop. At the time the police visited the property, there was a quantity of marijuana some 1.5 kilograms in dried condition in the room where the applicant lived.

His Honour said that he considered that it was a case of which he should take a serious view and that the plantation, while not large, was nevertheless one capable of yielding many thousands of dollars to those who would harvest and market it. There was evidence of receipt, or prospect of receipt of some 2 to $3,000 by the applicant himself in return for a harvest of some 10 pounds in weight.

The case appears, when one looks at it, to be one in which something like a share farming arrangement was being informally set up between the applicant and the persons who owned the property or had agreed to employ him.

The primary complaint is that for a man who is some 29 years of age, confronting his first offence of this kind, a sentence of the order of three years without any recognition of his relatively good record and his early plea of guilty bears too heavily upon the applicant.

However, it is accepted that the sentence is well within the range of what might be considered appropriate for an offence of this kind, and there is no challenge to the propriety of the exercise of the discretion as such in imposing that sentence. The case may, therefore, be well regarded as one in which his Honour took account of the factors going in mitigation in fixing the head sentence rather than, as is not suggested he ought to have done, taking account of it by way of a recommendation for early parole.

In all these circumstances, I do not think it can be said that the sentence is manifestly excessive or that His Honour improperly disregarded the application made to him for a recommendation for early parole; or, indeed, that there is any basis on which this Court could, consistently with the principles on which it acts, properly interfere with the sentence that was imposed.

In those circumstances, I would refuse the application for leave to appeal.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court is application for leave to
appeal refused.
BRISBANE

... DATE

JUDGMENT