R v Woods

[1998] QCA 295

[1998] QCA 295

COURT OF APPEAL

McMURDO P
PINCUS JA
HELMAN J

CA No 182 of 1998

THE QUEEN

v.

KEITH ROBERT WOODS  Applicant

BRISBANE

..DATE 05/08/98

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentences imposed in the Supreme Court in a drug case.  The application relates to rather unusual facts in that the applicant was sentenced in respect of two batches of offences separated by some years.  Some were committed in 1986 and the others in 1994.  The 1986 offences consisted in three matters relating to cannabis; there was one charge of cultivation, the second possession of the drug and the third possession of money.  The 1994 offences also related to cannabis; the first being a charge of production, the second being a charge of possession of things used in the commission of a drug offence and the third and fourth charges were of possession.

The 1986 offences were prosecuted under the provisions of the Health Act 1937. The relevant provisions of that Act were repealed by the Drugs Misuse Act 1986 with effect from
27 October 1986, a date shortly after the relevant offences were committed. The maximum penalty for the first and third offences committed in 1986 was imprisonment for life or a fine of $100,000 or both imprisonment and fine. The penalty for the offences committed in 1994 ranged up to 20 years (see section 8(d) of the Drugs Misuse Act which applied to the first and fourth charges). These were not the applicant's first drug offences. In 1980 he committed and was sentenced to imprisonment for four years and six months for similar offences.

The 1986 offences, to which I have referred, involved possession of about 5 kilograms of green leafy material, cultivation of cannabis and possession of a sum of $1,400 from the sale of cannabis.  The cultivation charge in 1986 related to a crop on a site which, rather oddly, was admitted to be the same site as that which was the subject of one of the 1980 charges.  After having been charged with the 1986 offences and committed, the applicant changed his name and decamped.  The second series of offences with which the Court is concerned related to two crop sites.  One said to have been grown as a sole venture and the other in conjunction with a man called Vanderaar.  The property the subject of the 1994 offences included a five and a half horsepower pump, some sprinklers and uprights.  There were about 1700 plants in all, ranging up to about two metres in height.  One of the points made by Mr Woods in his written outline is that the height is not particularly significant.  There was a variety of equipment located, including camping equipment, batteries, an electric pump and so forth.  In respect of these 1994 offences, again the applicant failed to appear and he was not located until February this year.

Counsel for the applicant, born in 1954, told the judge below that his client had been in the RAAF and subsequently in various sorts of employment and that he first took up growing marijuana with a group of other people while he was working in Mt Isa.  Counsel said that these people grew for their own use because they thought they were being overcharged for the marijuana they were using.  After failing to appear in respect of the 1986 charges, as I have mentioned, the applicant then lived what his counsel called "life on the run", and he worked, so far as he could, subject to the limitations of having to conceal his identity.  He met a woman in 1989 with whom he formed a relationship and she had three children by him.  One of the concerns which he has expressed to us, in the form of written submissions, relates to the care of that lady whom he proposes to marry and for whom he obviously has a great affection.  The picture painted by counsel and from the references which were produced and which I have read, is that of a decent, honest man who is in many ways a community asset. 
One of the points taken relates to parity with Vanderaar, who was a co-offender in respect of part of the 1994 cultivation and was sentenced in the Supreme Court by Cullinane J. in October 1994; the judge proceeded on the basis that Vanderaar was not the instigator of the undertaking and sentenced him to imprisonment for 18 months, recommending that he be eligible for parole after having served six months.

In a written submission the applicant complains that the fact that he had rehabilitated himself over two years before his arrest was not mentioned to the primary judge, although he had told counsel about it.  He also said, apparently with respect to the 1994 offences, that for various reasons there would have been a much smaller number of plants grown for maturity than the number found at the time the police came.

The sentences which were imposed in respect of the 1986 offences ranged up to two years and those in respect of the 1994 offences ranged up to four years.  So you have a person with a previous similar conviction, a mature person, who has been sentenced to four years imprisonment in respect of two separate batches of offences years apart.  That is, although Mr Woods no doubt does not see it this way, he comes to the Court as a person who has repeatedly declined to comply with what he knows to be the law relating to these matters.

Mr Woods, in his useful written submissions, has made a number of points which I have considered; the main conclusion I have drawn is that he feels a sense of injustice in that the judge did not accept, because it was not made clear to him, that the applicant has rehabilitated himself.  But if one looks at the matter objectively, the only evidence of rehabilitation is that he has said that he does not ever propose, on any consideration, to grow a crop of marijuana again.  My opinion is that if that had been emphasised it could not have made much impact upon the primary judge, because there was no assurance, of course, and no way of being sure, that
Mr Woods would not again be tempted.

The other contentions which he has made relate in substantial   part to the serious impact upon him of imprisonment and the impact which it is has had upon his family, all of which I accept.  Nevertheless, the difficulty which I feel about the matter is that the penalty is not a heavy one.  Indeed the applicant says himself that he was treated fairly by Jones J., a view which I share.

It does not appear to me possible seriously to argue that the penalty imposed is beyond the appropriate range.  The law must be obeyed by Mr Woods and by ourselves.  And in my opinion the application for leave to appeal really has no substance.  I would therefore refuse the application.

THE PRESIDENT:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The application is refused.

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