R v Thorley - [1999] TASSC 73

[1999] TASSC 73

CITATION: R v Thorley [1999] TASSC 73

PARTIES:  R
  v
  THORLEY, Geoffrey Ian

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  120/1997
DELIVERED ON:  25 June 1999
DELIVERED AT:  HOBART

HEARING DATE/S: 20, 22, 23, 26, 27, 28, 29 April, 3, 4, 5, 6, 7, 11, 12, 13, 14,
17, 18, 19, 20, 26 May, 10 and 18 June 1999

JUDGMENT OF: Slicer J

CATCHWORDS:

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Orders for compensation, reparation, restitution, forfeiture and other matters relating to disposal of property - Forfeiture or confiscation - Pecuniary penalty order - Whether part of sentence - Effect of pecuniary penalty order on sentence.
Crime (Confiscation of Profits) Act 1993 (Tas), ss4, 16, 20, 21 and 22.
Sentencing Act 1991 (Vic), s5(2A)(c).

R v Hoar (1981) 148 CLR 32; Allen v R (1989) 41 A Crim R 51; Tsolacos v R (1995) 81 A Crim R 434; Pastras v R (1993) 65 A Crim R 584; McDermott v R (1990) 49 A Crim R 105; Tapper v R (1992) 64 A Crim R 281; Araya and Joannes v R (1992) 63 A Crim R 123; R v Anderson (1992) 61 A Crim R 382, considered.
R v Brough [1995] 1 NZLR 419; R v Fagher (1989) 16 NSWLR 67; Pepin v R (1996) 86 A Crim R 327, followed.

Aust Dig Criminal Law [927]

REPRESENTATION:

Counsel:
             Prosecution:  J N Perks and M P Shirley
             Accused:  G L Sealy and P A Warmbrunn
Solicitors:
             Prosecution:  Director of Public Prosecutions
             Accused:  Piggott Wood and Baker

Judgment Number: [1999] TASSC 73
Number of Paragraphs: 39

Serial No 73/1999
File No 120/1997

THE QUEEN v GEOFFREY IAN THORLEY

REASONS FOR JUDGMENT SLICER J

25 June 1999

Geoffrey Ian Thorley has been found guilty of the crime of trafficking in the prohibited plant Indian hemp. The following findings, consistent with the verdict of the jury, are made in relation to the determination of penalty.

In January 1995, Mr Thorley was involved with another person in the acquisition of a commercial property in Hobart intended to be used for the cultivation of Indian hemp. Between January 1995 and February 1997, he was involved in the commercial operation of three premises, with at least three other persons, which produced substantial quantities of cannabis. The offender provided capital, equipment and expertise. He received a significant commercial return which, on a conservative estimate, exceeded $200,000. The operation at Wellington Street produced, at its zenith, between 100 to 150 plants per week and evidence given on the trial suggested that the premises at Charles Street contained some 800 plants at the time of discovery. The cannabis was dried, packaged and sold for $275 per ounce. The operations were sophisticated and commercial in nature.

The course of conduct was commercial in nature and prolonged. The range of penalties applicable to such conduct has been considered by the Court of Criminal Appeal in

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 Thorley

Details

AGLC: R v Thorley [1999] TASSC 73
Case: [1999] TASSC 73
Decision Date: 25 June 1999

CaseChat Overview and Summary

The Supreme Court of Tasmania delivered its judgment in the criminal case of The Queen v Geoffrey Ian Thorley on 25 June 1999. The accused, Thorley, was found guilty of trafficking in the prohibited plant Indian hemp. The operation involved the acquisition of commercial properties and the cultivation and sale of cannabis, generating significant profits. The court determined that the commercial nature of the operation warranted a substantial penalty, considering factors such as the offender's role, the absence of mitigating circumstances, and the need to deter drug-related crimes. The court also examined the application for a pecuniary penalty order under the Crime (Confiscation of Profits) Act 1993. The court concluded that such an order should not be considered when determining the sentence, as it serves a separate purpose of disgorging ill-gotten gains. However, the court may consider the nature of the crime and proportionality when deciding whether to impose a pecuniary penalty order. The court ultimately imposed a five-year imprisonment term on Thorley, without considering the impact of a potential forfeiture or pecuniary penalty order.

Orders