Regina v M L Edwards

[1999] NSWCCA 411

CITATION:	Regina v M L Edwards [1999] NSWCCA 411
FILE NUMBER(S):	CCA 60385/99
HEARING DATE(S):	10 December 1999
JUDGMENT DATE:	17 December 1999
PARTIES :	Regina v Mandy Lee Edwards
JUDGMENT OF:	James J at 1; Sperling J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/31/0508
LOWER COURT JUDICIAL OFFICER:	Luland DCJ

COUNSEL:	(Applicant): D H Patch (Crown): C K Maxwell QC
SOLICITORS:	(Applicant): Galloways (Crown): S E O'Connor
CATCHWORDS:	(No question of principle)
ACTS CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Downie (1997) 95 A Crim R 299 Jurisic (1998) 45 NSWLR 209 Kirkwood [1982] QdR 158 Puke (NSW CCA, 12 September 1997, unreported)
DECISION:	See paragraph 28

IN THE COURT OF
CRIMINAL APPEAL

60385/99

JAMES J
SPERLING J

Friday 17 December 1999

REGINA v Mandy Lee EDWARDS

JUDGMENT

1    JAMES J: I agree with the judgment of Sperling J.


**********

IN THE COURT OF
CRIMINAL APPEAL

60385/99

JAMES J
SPERLING J

Friday, 17 December 1999

REGINA v Mandy Lee EDWARDS

JUDGMENT

2    SPERLING J : On 9 July 1999, the applicant, Mandy Lee Edwards, was sentenced by Luland DCJ, having pleaded guilty to one count of knowingly taking part in the cultivation of a prohibited plant (cannabis), contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 . The maximum penalty for the offence is imprisonment for ten years or a fine of 2,000 penalty units or both.

3    By the operation of s 6 of the Act, a person takes part in the cultivation of cannabis if the person provides the premises on which the cultivation is carried out or permits the cultivation on premises of which the person is the owner. That, however, was not the only basis for the charge.

4    The applicant had been indicted on charges which included cultivating a prohibited plant. The offence of knowingly taking part in the cultivation of a prohibited plant was not on the indictment. When the case was called on for trial, the Crown agreed to accept a plea of guilty to the offence of knowingly taking part, in full satisfaction of the indictment.

5    The two offences I have mentioned are prescribed by the same statutory provision and carry the same maximum penalty. It was said in argument that the offence to which the applicant pleaded guilty was a less serious offence. That may be so in some circumstances but not necessarily so in all cases. Watering, for example, has been held to be cultivating: Kirkwood [1982] QdR 158. And, by s 6(1), a person who participates in any steps in the process of cultivation takes part in cultivation. So a person who waters a prohibited plant both cultivates it and knowingly takes part in the cultivation of it. That person can properly be charged with either offence. The penalty will depend on what was done rather than on the offence with which the person is charged. Frankly, the reason for choosing to plead guilty to one offence rather than the other in the circumstances of the present case escapes me.

6    The sentence was for a minimum term of nine months imprisonment and an additional term of nine months. The applicant seeks leave to appeal against that sentence.

7    On the sentencing hearing, a statement by Detective Senior Constable D A Rutledge was tendered. The facts as recounted in that statement were as follows. On 10 April 1995, he and other police officers went to a farm property at Temagog, New South Wales. The applicant was there. She said that she lived on the property with her de facto husband. Cannabis plants were found growing in a shed. The applicant was warned. The applicant admitted that she had owned the farm for about ten years. She handed the police officer a key to the shed. A sophisticated hydroponic irrigation system was found in the shed, servicing some 185 cannabis plants which were up to one metre in height. The applicant admitted that the plants were hers. Asked how long she had been growing them, she said about a year. She said it was her husband’s idea. She admitted that she had been picking the cannabis. (On appeal, it was submitted that these answers should have been construed as relating to the applicant and her husband. However that may be, the applicant did not, in her evidence. at the sentencing hearing, seek to explain those answers as intended by her to mean that it was her husband, and not herself , who was growing the cannabis.) The applicant admitted that her husband, who was away, had taken a load of cannabis to Sydney to sell. A number of containers and sealed bags of cannabis leaf and a set of drying racks were found in the house. One hundred thousand dollars in cash (possibly more) was found in the ceiling above the pantry. The applicant admitted that the money had come from the sale of cannabis. Firearms were found on the premises. The applicant said that a revolver, among the firearms, belonged to her husband, but that the other weapons were hers and were kept to keep intruders off the property.

8    Detective Senior Constable Rutledge was called at the sentencing hearing. He was not challenged in relation to the admissions allegedly made by the applicant.

9    In her evidence at the sentencing hearing, the applicant initially stated that she had nothing to do with the cannabis and played no part in its cultivation. She said all she knew was that her husband was possibly growing a couple of plants and that she did not know the extent of the operation until that day. But, when then asked by his Honour about the basis of her plea, the applicant conferred with her counsel and said she had, on occasions, activated the watering system in the shed from a tap outside the building and had occasionally placed plants in front of a fan. She denied that she told Detective Senior Constable Rutledge that the money was from cannabis sales.

10    The applicant was not asked about the other alleged admissions by her own counsel or by the Crown. That does not embarrass the Crown on this appeal. The applicant was on notice of Detective Senior Constable Rutledge’s account of the alleged admissions. She had an opportunity to answer that account and, with the exception of the alleged admission concerning the source of the money (which she denied making), she did not.

11    In the course of her evidence, the applicant said her husband was a violent man and she was in fear of him. She cast him as the real culprit and herself as the reluctant helper. Asked why she had first denied involvement in growing the cannabis when giving her evidence, she said that was what her husband had told her to say.

12    In his remarks on sentence, his Honour said that he found the applicant’s sworn testimony to be most unconvincing. He found as a fact that the applicant was well aware of the extent of the cultivation, based on her admissions to the police, and had played an active part in the sophisticated cultivation of cannabis for a commercial purpose. Having regard to the evidence to which I have referred, that finding is unassailable.

13    His Honour did not find that the applicant was principally responsible for the cannabis growing operation. He found that the applicant’s de facto husband was “a well known and violent criminal” and “a violent man”. He found that the applicant was “somewhat subservient to the will of her de facto”.

14    There was a delay of about 4 years between the offence and the matter being listed for trial. The delay appears to have been due to the time taken for committal proceedings, which also involved the applicant’s husband. (The applicant’s husband was discharged at the committal hearing.)

15    The grounds of appeal are as follows.


(1) Ground 1: The sentencing judge failed to take into account the delay of more than 4 years between arrest and sentence.

(2) Ground 2: The sentencing judge failed to take into account the fact that the applicant pleaded guilty at the first available opportunity.

(3) Ground 3: The sentencing judge wrongly characterised the role of the applicant in the cultivation of cannabis plants, and gave no, or insufficient weight to the fact that she only played a minor role, as a low level accomplice.

(4) Ground 4: Further, the sentencing judge sentenced the applicant on the basis that she had “engaged in trafficking” of the cannabis grown on the property, when there was no evidence for this finding of fact.

(5) Ground 5: The sentence is manifestly excessive.


16    In my opinion the sentence was manifestly excessive. My reasons follow. It is unnecessary then to decide the other grounds of appeal.

17    The sentencing judge found that the applicant “played an active part in this sophisticated cultivation of cannabis for a commercial purpose”. The operation was on a large scale, although the number of plants fell short of the 250 necessary for a “commercial quantity” under the statute for which a heavier maximum sentence is prescribed. That, of course, does not mean the operation was not carried on for commercial purposes. On his Honour’s findings, it was.

18    In Jurisic (1998) 45 NSWLR 209, Spigelman CJ said that a custodial sentence will usually be appropriate for cultivation of cannabis. Puke (NSW CCA, 12 September 1997, unreported) was cited. In that case, Downie (1997) 95 A Crim R 299 was cited with approval. There, it was said, “If cannabis is grown for profit, (offenders) should expect a term of imprisonment, except in exceptional circumstances”.

19    Sentencing statistics are of little use in relation to convictions for cultivating or for knowingly taking part in the cultivation of a prohibited plant. These convictions include minor cases where a few plants may be grown for private use. They do not distinguish cases where the plant is grown for profit.

20    The sentencing judge was right to impose a prison sentence in this case having regard to the objective features of the offence as he found them.

21    The subjective features of the case include the following. There was no relevant criminal history. The applicant is the mother of school age children. She had since separated from her de facto husband. She had moved to another locality. She had committed no further offences and appears to have led a quiet and responsible life during the four years before sentence.

22    When apprehended by the police, she admitted her involvement in the cannabis growing operation carried out on her property. However, she declined to confirm the admissions when interviewed. That was the position she maintained throughout the committal proceedings and until the case was called on for trial four years later. She then pleaded guilty to the offence of knowingly taking part, as I have indicated. There is no evidence of any offer to do so at any earlier time. Her plea saved the state the cost of a trial, but spoke little of remorse in these circumstances. Her initial, false evidence given at the sentencing hearing and her grudging concessions of limited involvement - which, for good reason, the sentencing judge did not accept - showed an unwillingness to take responsibility for the offence she had committed. .

23    The delay of four years no doubt caused the applicant additional anxiety in not knowing what the outcome of the proceedings would be. But it is impossible to know where to attribute responsibility for the delay, in view of the possibility that an earlier offer to plead guilty to the offence of knowingly taking part might have been accepted. It was accepted later. It may well have been accepted earlier. And, for the reasons I have mentioned, I do not see what difference it would have made to her, in this case, if she had offered to plead guilty to cultivating, with which she was charged from the start.

24    The burden is on the applicant to prove a matter in mitigation. The sentencing judge was not bound to find that the delay was other than the applicant’s own fault. He did not mention the delay. If he failed to take it into account as an unusual hardship suffered by the applicant, he did not err.

25    There is no reason to suppose that the judge failed to take note of the fact that the applicant had, during the period before sentence, led a quiet, law abiding life.

26    Despite these considerations, I am of the opinion that a sentence of one year and six months, consisting of a minimum term of nine months and an additional term of nine months, was excessive having regard to the subjective features of the case. The sentence should, accordingly, be set aside.

27    Having regard to the objective criminality involved and to the subjective features of the case, the appropriate sentence, in my opinion, approximates the time which the applicant has been in custody. A sentence should be substituted which will expire on the date of this determination.

28    I propose the following orders:


(1) Grant leave to appeal against sentence.

(2) Appeal allowed.

(3) Sentence set aside.

(4) The applicant sentenced to a fixed term of imprisonment of five months, one week and two days, commencing on 9 July 1999 and expiring on 17 December 1999.

**********