R v Lobwein - [2000] QCA 100

[R v LOBWEIN & Anor]
[2000] QCA 100
COURT OF APPEAL

DAVIES JA
McPHERSON JA
MOYNIHAN J

CA No 4 of 2000
CA No 10 of 2000

THE QUEEN

THELMA LOBWEIN and
CARL RICHARD STATHAM Applicants

BRISBANE

..DATE 29/03/2000

JUDGMENT

DAVIES JA: Both applicants pleaded guilty and were sentenced in the Supreme Court on 15 December last year.

Statham pleaded guilty to one count of trafficking in cannabis between 1 January 1997 and 9 April 1999, one of production of cannabis between 1 July 1996 and 9 April 1999, one of possession of cannabis and one of possession of equipment used in connection with its production. He was sentenced to seven years imprisonment on the trafficking count with a recommendation that he be eligible for parole after serving two and a half years of that term. No further penalty was imposed in respect of the other counts.

Lobwein pleaded guilty of possession of cannabis with a circumstance of aggravation. She was sentenced to 18 months imprisonment suspended after three. The applicants were, at the relevant time, living in a de facto relationship.

Statham is 50 years of age having been born on 7 September 1949. He has no previous convictions for similar offences. However, he has a previous conviction in 1990 for assault occasioning bodily harm and one in 1998 for common assault. Neither of these was apparently serious enough to justify a gaol term. However, in November 1993 he was sentenced to 12 months imprisonment on three counts of indecent dealing with a girl under 14 and two of indecent dealing with a girl under 16 years of age.

At the time of his apprehension Statham was carrying on business at two separate locations of hydroponic growing of cannabis. That's harvesting, packaging and sale to a supplier in Brisbane. Both operations were very sophisticated producing high quality crops in locations which were difficult to detect.

The first of these locations was a house in which the two applicants lived. Statham had sealed off five rooms of this house installing in them expensive growing equipment which included moveable lights and air conditioning. The latter to improve the flowering of the plants at appropriate times. He had diverted power from the mains system to avoid detection by excessive usage. He commenced the cultivation of cannabis at this location in July 1996. He was in full scale production and had generated sufficient cannabis to commence trafficking by January 1997. He sold the head or bud of the plant to a supplier in Brisbane for $3,000 a pound, a pound being about point 45 of a kilogram.

When police searched the premises at the end of this period they found over 56 kilograms of leaf and tip material, nearly half of it bagged in 900 gram bags, a large quantity of seeds graded in various qualities, 260 plants at various stages of growth and the equipment to which I have already referred.

The second location more recently established was at a farm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lobwein

Details

AGLC: R v Lobwein [2000] QCA 100
Case: [2000] QCA 100
Decision Date: 29/03/2000

CaseChat Overview and Summary

In the Court of Appeal, the case of R v Lobwein and Anor was heard, where the applicants, Thelma Lobwein and Carl Richard Statham, appealed against their sentences imposed by the Supreme Court. The applicants, who were living in a de facto relationship, pleaded guilty to various drug-related offences. Statham was convicted of trafficking in cannabis, production of cannabis, possession of cannabis, and possession of equipment used in connection with its production, while Lobwein pleaded guilty to possession of cannabis with a circumstance of aggravation. The court was required to determine whether the sentences imposed on the applicants were manifestly excessive.

The court examined the nature and extent of the applicants' criminal activities, considering the sophistication and scale of Statham's cannabis production and trafficking operation, as well as the circumstances surrounding Lobwein's involvement. The court assessed the submissions made by the applicants' counsel, comparing the current case with previous cases and considering the principles of sentencing for drug-related offences. The court concluded that the sentence imposed on Statham was not manifestly excessive, as it took into account the extent and sophistication of the production and trafficking. However, the court found that the sentence imposed on Lobwein was excessive, given her limited involvement in the criminal activities and her financial and social dependence on Statham. The court varied Lobwein's sentence to six months' imprisonment.

The Court of Appeal, consisting of Davies JA, McPherson JA, and Moynihan J, unanimously agreed with the decision. The orders of the court were that the appeal of Carl Richard Statham was to be refused, while the appeal of Thelma Lobwein was to be granted to the extent of varying her sentence to six months' imprisonment.

Orders