R v Roulstone - [1998] QCA 324

[1998] QCA 324

COURT OF APPEAL

McMURDO P
McPHERSON JA
SHEPHERDSON J

CA No 254 of 1998

THE QUEEN

BRUCE EDWARD ROULSTONE Applicant

BRISBANE

..DATE 18/09/98

JUDGMENT

THE PRESIDENT: Mr Justice Shepherdson will give the first

judgment of the Court.

SHEPHERDSON J: On 9 July 1998 in the Supreme Court at Cairns the applicant was convicted of three charges brought under the Drugs Misuse Act. In summary they were first of unlawful production of the dangerous drug, cannabis sativa, with a circumstance of aggravation namely that the quantity of the drug exceeded the quantity specified in schedule 3 of the Drugs Misuse Regulation 1987 in respect of that drug; secondly, of possession of a number of specified items used in connection with the unlawful production of the cannabis sativa; and thirdly, of unlawfully having possession of cannabis sativa the quantity of which exceeded the quantity specified in the third schedule of the Drugs Misuse Regulation in respect of cannabis sativa.

The applicant was convicted after trial before a Judge and jury. On 10 July 1998 he was sentenced to three years imprisonment, the learned sentencing Judge dealing with all the offences collectively because, as he said, they all related to the undertaking of producing the cannabis sativa.
The applicant seeks leave to appeal against the sentence imposed on the ground that it was manifestly excessive.
Mr Rafter, who is counsel in this Court, recognises that a custodial sentence was inevitable but submits that the sentence of three years imprisonment without early parole or suspension was excessive in the circumstances in which the offences were committed, those circumstances being said to involve a mixture of community use and a commercial element.
All the offences were committed at Walsh River which I understand is in the Herberton area. The applicant resided at Walsh River and the cannabis sativa involved in the production consisted of 80 mature plants up to more than 6 feet high and 63 seedlings.

The plants were in various locations, were irrigated and a bush camp had been constructed. The crops were surrounded by mesh in order to deter rodents and marsupials. In the camp police found two rifles and a revolver, all of which were capable of being loaded within seconds, the magazines being already filled.

His Honour concluded that the applicant had been engaging in the production for "some months at least if not longer." He was satisfied that the camp had been camouflaged although he said the operation fell within the "farm type production," and "not the large acreage commercial production."

His Honour said it showed a "level of activity and contribution by way of money and effort towards the production process." He described the production as being "of a significant quantity." His Honour recognised that although the plantation might have been for the use of "those few residents who lived in that small community in the upper regions of the Walsh River" he concluded "there's an investment in this activity which bespeaks it having…

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 Roulstone

Details

AGLC: R v Roulstone [1998] QCA 324
Case: [1998] QCA 324
Decision Date: 18/09/1998

CaseChat Overview and Summary

In the case of The Queen v. Bruce Edward Roulstone, the applicant appealed against a sentence of three years imprisonment imposed by the Supreme Court at Cairns for offences related to the unlawful production, possession, and production of cannabis sativa. The applicant argued that the sentence was manifestly excessive given the circumstances of the offences, which involved a combination of community use and a commercial element. The Court of Appeal examined the sentencing considerations, including the applicant's criminal history, the nature of the offences, and the fact that the applicant had chosen to plead not guilty and proceed to trial.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and whether there had been an error in the exercise of the sentencing discretion. The applicant's counsel argued for a reduction of the sentence to two years or for an early recommendation for parole. The Court of Appeal considered the sentencing principles and the relevant case law, particularly in relation to similar drug production offences.

The Court of Appeal found that the sentencing Judge was entitled to impose a sentence without suspension and was not obliged to make an early recommendation for parole. The Court concluded that the sentence was within the range of a sound sentencing discretion, although perhaps towards the upper end of that range. The applicant's significant criminal history and decision to proceed to trial without a plea of guilty were factors that the Court considered in their decision. The Court of Appeal dismissed the application for leave to appeal against the sentence.

The final orders of the Court of Appeal were that the application for leave to appeal against the sentence was refused, and the sentence of three years imprisonment remained in place. The Court emphasised that the sentence, while towards the upper end of the range, was not manifestly excessive and did not represent an error in the exercise of the sentencing discretion.

Orders