R v LAURIE No. SCGRG-81-98 Judgment No. S6817

R V LAURIE

[1998] SASC 6817

Court Of Criminal Appeal: Prior, Olsson and Lander JJ

LANDER J

This is an appeal against sentence. On 16 March 1998 the appellant pleaded guilty in the District Court to one offence of knowingly producing cannabis, such production exceeding 19 plants contrary to s.32(1)(a) of the Controlled Substances Act. He was convicted and sentenced to be imprisoned for a period of 18 months and a non-parole period of 12 months was fixed.
The learned sentencing judge exercised his discretion in favour of the appellant and suspended the term of imprisonment upon the appellant agreeing to enter into a bond in his own recognisance of $1,000 and to comply with the following conditions:
That he be of good behaviour for a period of thirty-six calendar months.

That during the term of the bond the appellant not be in possession of and totally abstain from consuming any illicit drug of any type save and except only those which may have been prescribed to him by a legally qualified medical practitioner and, further, that he shall not produce, sell or distribute any such drugs.

That during the term of the bond he be under the supervision of a probation officer.

That at all times he obey the lawful direction of the probation officer.

That he undergo such assessment and treatment as may be recommended by the probation officer.

That he perform 200 hours of community service within a period of 18 calendar months from the date of the sentence and obey the lawful directions of that community officer.

The appellant entered into that bond.
The appellant was given leave to appeal from the sentence upon the following grounds:
“1. The sentence was in all the circumstances manifestly excessive.
2...... That the learned Sentencing Judge failed to give sufficient weight to the fact that the growing of cannabis by the accused was for personal use only.
3.That the learned Sentencing Judge failed to give sufficient weight to the fact that nearly all of the plants were in one saucer and that most, if not all of them, would never have produced any cannabis or any significant amount of cannabis.
4...... In circumstances where the learned Sentencing Judge accepted that the accused was a regular cannabis user, he erred in making it a term of the bond that the defendant shall not be in possession of and totally abstain from consuming any elicit (sic) drug.”
The appellant lives in a caravan at Beachport in the South East. Police attended at the Beachport Caravan Park with a general warrant to search his caravan. On searching the caravan they found a small growing compartment which was hooked up to lights.
In that growing compartment police located eight small cannabis plants which were each about ten centimetres in height. On a small dinner plate or saucer police found a number of seedlings which were about two centimetres high. The police estimated at that time that there were about 70 to 100 of those very small seedlings. The appellant admitted that he had been growing the larger plants for about a week and that they had been propagated from cuttings. The smaller plants were growing in rock wool which had been dampened and into which seeds had been thrown. The appellant told the police that he intended to grow all of the plants for the purpose of his own use.
He said that he only expected some four plants out of all of the seedlings would survive to reach maturity to allow cannabis to be collected. In due course after a count it was established with some precision that there were eight larger seedlings and 110 tiny seedlings. Analysis showed that each of the larger cuttings were female cannabis cuttings, only one of which had developed roots.
In sentencing the appellant the learned Sentencing Judge said:
“The law regards your type of offending as serious. The seriousness with which that offending is regarded is reflected in the penalty that the law provides for that offence. That penalty is a fine not exceeding $500,000 and/or imprisonment for a period not exceeding 25 years or both.”
Whilst it is true that the offence to which this appellant pleaded is a very serious one and does attract very serious penalties, the appellant's criminality was at the very low end of the spectrum of behaviour for offences of this kind. The crop which the appellant was cultivating contained only seedlings. It could not have been envisaged that 110 seedlings in a saucer could have been either grown in the saucer or in the cupboard to a point where they could have yielded a crop.
At best, out of those 110 seedlings one would expect, as the appellant himself said, only a very few would ever have been harvested. Probably considerably less than nineteen. Of the eight larger seedlings only one of them had taken root, and again it is difficult to see that all of those seedlings would have survived, but even if they had, coupled with the minimum number of seedlings which would have survived out of the saucer, it is likely in due course a number significantly less than twenty would have survived.
This cultivation was as amateurish as could be imagined. The appellant said that he grew cannabis for his own use. That has to be accepted because all of the evidence supported that. It could not be suggested, and to be fair the Crown did not suggest that this crop could ever have had any commercial possibilities. Cannabis crops are usually not grown in saucers. I am not so sure that the learned trial judge fully appreciated that this crop was for the personal use of the appellant only.
Of course it could be said that when the seedlings got bigger they could have been planted out and, in those circumstances, may have reached maturity. It is difficult, however, to understand where the appellant could have planted out any of these seedlings. He lived in a caravan park and his own method of cultivation was a small cupboard with lights within the caravan.
The defendant was aged somewhere between twenty-two and twenty-four when this offence occurred. I think he was twenty-four. He has a previous criminal record. The learned Trial Judge described it as a long criminal record but I would not describe his antecedents in that way.
In 1991 he was convicted of housebreaking and stealing. In 1993 he was convicted of larceny and later in that year he was convicted of possessing a prohibited drug.
In 1995 he was convicted of possession of equipment to administer a prohibited drug. He has never been sentenced to gaol and for each of his criminal offences he has incurred a fine.
In relation to a driving offence he was placed on a bond.
Apparently the appellant is illiterate. He lives either in the caravan or a shed at Beachport. When he resides in the shed he lives in a loft within the shed.
He is sometimes employed as a deckhand and cuts bait for fishermen; that is cash employment and is only available to him, of course, during the fishing season.
Out of the fishing season he cuts firewood.
Occasionally the learned Trial Judge was told he worked in the Millicent sales yard. He lives, as his counsel said, from hand to mouth from whatever moneys he can obtain from his unskilled employment.
The appellant is a regular smoker of cannabis. His counsel told the learned Sentencing Judge that he smoked cannabis whenever he could obtain it.
I believe a sentence of imprisonment of eighteen months and a non-parole period of twelve months, even though suspended was, in the circumstances of this offence, manifestly excessive.
This offence was committed by a regular user of cannabis for the purpose of obtaining sufficient cannabis for his own needs. It is true that there were a large number of plants involved but 110 of those plants were growing in a saucer in rock wool. They were in the early stage of generation. In my opinion this was a special case where a number of plants did not indicate the true size of the crop or the criminality of the offender.
In my opinion the appellant has succeeded in the principal argument; that the sentence imposed was manifestly excessive. I also agree with the appellant’s submission that a condition of the bond that he totally abstain from consuming any illicit drug for a period of six calendar months, having regard to his admission that he was a regular user of cannabis was, in his circumstances, inappropriate.
The condition was imposed upon the appellant in circumstances where the learned trial judge might have expected that the condition would be breached. If, but for this condition he had used cannabis, he would have been subject to an expiation order which, if he paid, would not have resulted in a prosecution.
As soon as a condition of this kind was imposed in the bond then the use of cannabis would have made the appellant immediately liable to serve a term of imprisonment of twelve months, being the non-parole period set by the learned Trial Judge. It has to be remembered that the appellant is a simple man who is illiterate and lives from hand to mouth. In my opinion it would be unfortunate to impose a condition of a bond upon him which he simply could not or would not observe, therefore making it inevitable that he serve the period of imprisonment.
Whilst it is necessary, for the reason of deterrence, both personal and general, to sentence the appellant to imprisonment, I do not believe that the appellant’s criminality, in the circumstance of this case, made it appropriate for a sentence of imprisonment of the severity imposed by the Sentencing Judge.
The sentence in this matter cannot be considered a precedent for offences of this kind. This matter has a very peculiar set of facts which have given rise to special circumstances.
It was put on this appeal, and I think advanced before the learned Trial Judge, that it would be appropriate, because of those special circumstances, to impose a fine upon the appellant rather than to sentence him to imprisonment.
I do not believe that a fine would be an appropriate punishment in this case for two reasons: First, it would not adequately reflect the gravity of the offence; secondly, the appellant was in no position to pay a fine and, in those circumstances, a fine should not be imposed because of the scriptures of s13 of the Criminal Law (Sentencing) Act.
It seems to me that there is no alternative having regard to the gravity of the offence but to impose a sentence of imprisonment.
I would therefore set aside the sentence imposed by the learned Trial Judge and instead impose a sentence that the appellant serve three months imprisonment. That sentence should be suspended, in my opinion, upon the appellant entering into a bond in his own recognisance of $250 to be of good behaviour for a period of eighteen months. It will be a condition of that bond that he be of good behaviour for the duration of the bond.
The learned Sentencing Judge imposed an obligation upon the appellant that he perform 200 hours of community service within the period of eighteen calendar months from the date of that order. In my opinion that condition was appropriate. However, we have been told on this appeal from the bar table, that after the sentence was imposed on the appellant he obtained work in the forest, in the South East. Whilst working in the forest he suffered a severe crushing injury to one of his upper limbs. He is apparently now disabled in one limb and unable to work. In those circumstances it would not be appropriate to require him to carry out community service. But for that injury it would, in my opinion, have been appropriate to make that a condition of the bond.
In my opinion, therefore, provided the appellant is prepared to enter into the bond to which I have referred, the appeal ought to be allowed and the sentence of the learned Sentencing Judge set aside. The appellant ought to be     sentenced to three months imprisonment which should be suspended upon him entering into a bond in his own recognisance of $250 to be of good behaviour for a period of eighteen months. The sentence to date from the date of the sentence of the court below, 16 March 1998.
PRIOR J:   I agree.
OLSSON J:       I also agree.
PRIOR J:........... The order of the Court is, therefore; appeal allowed, substitute for the sentence of imprisonment imposed in the court below a sentence of three months suspended on condition that the appellant enter into a bond in his own recognisance in the sum of $250 to be of good behaviour for a period of eighteen months from the date when sentenced in the court below.

[1998] SASC 6817

20 August 1998