R v Tarabay - [1998] QCA 317

[1998] QCA 317

COURT OF APPEAL
PINCUS JA
McPHERSON JA

AMBROSE J

CA No 107 of 1998
THE QUEEN
v.

RONNIE ROZARE TARABAY

(Applicant)

BRISBANE
..DATE 29/05/98
290598 T15/MJR M/T COA120/98
PINCUS JA: The applicant was convicted in the Supreme Court
of three offences relating to cannabis, one of production of
cannabis in excess of 500 grams, one of possession of cannabis
in excess of 500 grams and one of possession of things used in
connection with the commission of a drug offence. He is 24
years of age and the learned primary judge sentenced the
applicant to two years and six months imprisonment suspended
after six months. His criminal history does not include any
drug offences, nor has he on any previous occasion been
sentenced to a period of actual custody. There appears to
have been a burst of criminality in 1992. Nearly all his
offences were committed in that year. I shall return to that
topic.

According to the information placed before the primary judge, the applicant took a six month lease on a house for the purpose of establishing a marijuana growing operation there and did so. The police found 36 plants growing in a hydroponic system and 43 growing in pots. The total weight of the cannabis and plant material found was over six kilograms and the prosecutor told the judge that the total included some roots. The analyst said there was about 253 grams of green plant material and that was described as material which had been harvested, some of which was at least partially dried. There was no evidence of the finding of any bags for selling marijuana, but the operation included, in addition to the hydroponic equipment, what the judge described as extensive lighting equipment. There were also transformers, fans, pumps, drums, bags and cartons. We have seen the equipment 290598 T15/MJR M/T COA120/98

depicted in the exhibits. The judge remarked, "It is difficult to believe that this was for your own use, particularly as you were not addicted to it. That is, you only were a very casual user, at best, of cannabis." Counsel for the applicant criticises that last statement as being inaccurate.

A slightly unusual feature of the case is that the prosecutor below suggested that there be a suspended sentence in the order of one to two years and accepted that the marijuana was grown for personal use, which was the applicant's version of his purpose given to the police; however the judge was not prepared to act on either of these concessions. His Honour was told by counsel for the defence below that the applicant did not regard himself as being addicted, but used cannabis recreationally to relieve stress. There was no specific indication as to the extent of the applicant's use and it is not clear what it was that justified the judge's statement that the applicant was "only a very casual user, at best, of cannabis". However, it appears to me that he would have had…

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 Tarabay

Details

AGLC: R v Tarabay [1998] QCA 317
Case: [1998] QCA 317
Decision Date: 29/05/1998

CaseChat Overview and Summary

The case of R v Tarabay involved Ronnie Rozare Tarabay, who was convicted of producing, possessing, and possessing items used in connection with the commission of a drug offence. Tarabay was sentenced to two years and six months imprisonment, suspended after six months by the primary judge. Tarabay appealed against his sentence, arguing that the primary judge did not adequately consider whether the cannabis was for personal use or for commercial purposes. The Court of Appeal considered whether the primary judge erred in imposing a custodial sentence without adequately considering the applicant's version of events.

The Court of Appeal held that the primary judge erred in imposing a custodial sentence without adequately considering the applicant's version of events. The Court found that the primary judge did not warn the applicant that he had in mind to sentence on the basis of rejection of the applicant's version of events. The Court held that the primary judge should have clearly indicated to the defence that he did not propose to accept the Crown's admissions and told them that he proposed to make a finding of commercial growing unless he was satisfied by evidence not to do so. The Court also held that it would not be appropriate to make a finding without the defence having an opportunity to contest the critical proposition.

The Court of Appeal allowed the appeal, set aside the sentences imposed below, and imposed a sentence of two years imprisonment suspended for five years in respect of each offence. The Court did not consider it appropriate to order forfeiture of equipment as it was not sought by the prosecution.

Orders