Robert Francis Taylor v R No. SCCRM 93/74 Judgment No. 4007 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4007

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences miscellaneous offences - Controlled Substances Acts.32(l)(d) - appeal against sentence of three years' imprisonment, unsuspended, with non parole period of eighteen months, for taking part in cultivation of cannabis - crop of 1400 female plants, with irrigation system and permanent gardener/guard in far north - appellant's full time role was to take supplies and give assistance in other ways - sentence not excessive.

HRNG ADELAIDE, 16 June 1993 #DATE 16:6:1993
Counsel for appellant:     Mr C J Kourakis
Solicitors for appellant:    Caldicott and Co.
Counsel for respondent:     Ms A M Vanstone
Solicitors for respondent: Director of Public Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 COX J This is an appeal brought, by leave of the single judge, by the appellant against the sentence imposed by a judge in the Adelaide District Court upon his pleading guilty to having taken part in the cultivation of cannabis contrary to s.32(1)(d) of the Controlled Substances Act. 2. The sentence imposed by the learned judge was 3 years imprisonment, with a non-parole period of 18 months, and the judge expressly declined to suspend the sentence. 3. The appeal is brought with respect to that last matter and Mr Kourakis this afternoon has urged that the judge was in error in failing to suspend. 4. The cannabis crop in question was an exceptionally large one. It was found growing in a remote part of the north of the State, and the police pulled up some 2,837 plants in an area that had been carefully prepared for cultivation and eventual cropping. When the crop was discovered and destroyed, about May 1991, it was found that the crop had been culled in the usual way by the destruction of the male plants; but, of the 1400-odd female plants that remained, many had matured. It happened, however, that none had been harvested. The appellant's leaving the area a couple of months earlier meant that no member of the cultivation team remained on site and the crop evidently just matured and withered and died. 5. It transpired that the crop had been grown in pursuance of an enterprise begun by one Lewis a year or so earlier. He conceived the idea of growing a cannabis crop in this very distant part of the State, many kilometres evidently from the nearest habitation. As a blind for the illegal operation, he entered into an agreement with the proprietors of the cattle station, upon which the cannabis was to be grown, for the agistment of cattle in the area, and an agistment agreement was duly drawn up. It appears that those running the station were quite unaware of the illegal activity that the agreement was designed to disguise. 6. The project got under way, it seems, early in 1991. That is when the appellant was recruited and when he first went to the area. However, one of his jobs was to be the overseer of the cattle and it took some time for Lewis to buy the cattle and get them to the station, so the appellant left and returned again about the middle of 1991. The time is variously described as 'about Easter' or 'about July'. The precise time does not much matter. He went back then and looked after the cattle when they came and also provided supplies and support to the gardener whom Lewis had engaged to live on the site and tend the crop. 7. I have said that the crop was prepared with some care and elaboration. There was an irrigation system hooked up to a bore and the gardener's job, no doubt, was to keep it watered and perhaps also to keep unwelcome persons, should any happen to come to such a remote area, away from the crop itself. A part of the appellant's duties were to provide company for the gardener, who had a very lonely job. 8. The evidence indicates that the appellant stood to gain something of the order of 30 thousand dollars for his part in the scheme. Things started to fall apart, when the gardener left the crop site in December 1991. Exactly why he left does not appear. The appellant evidently declined to take the gardener's place. However, he remained on the property until the following March, and one presumes that he was looking after the stock for that time. He then left - he says he walked out - and, apparently, nothing more happened there until the police arrived, presumably having been tipped off by someone, the following May. 9. They later caught up with the appellant, who had received no reward for his involvement in the enterprise, beyond, it seems, some relatively minor periodic payments; irregular enough for him to voice his dissatisfaction about it during the time he was there. 10. The learned judge understandably emphasized in his sentencing remarks the seriousness of the enterprise in which the appellant played his relatively minor but very necessary part. He set against that the matters personal to the appellant, but concluded, notwithstanding the plea that was made to him, that it would not be proper to suspend the sentence. The argument that was put to the learned judge was put to us again today and with the same object. 11. The appellant is about 40 years of age. He has no convictions at all, and has a good work record. He accepted this job at a time of personal difficulty, both with respect to his marriage and his employment. Emphasis has understandably been put on the circumstances that he was not willing to tend the crop himself, and, indeed, ended up walking away from it altogether, that he has had no significant gain for his taking part in the scheme, and that he is now contrite, as is evidenced by his surrendering to the police in South Australia following the laying of an ex officio information against him. Mr Kourakis pointed out that, before that information was laid, an earlier information making the same charge had been dismissed by a magistrate on the ground that the police case was insufficient to justify the appellant's committal for trial, so that there may well have been an argument available to him that his extradition from Victoria, because that is where he was living at the time, should not be ordered: And then, of course, the appellant's plea of guilty is urged as an additional and substantial factor in his favour. 12. For all these reasons, it is said that the learned judge erred in not suspending the sentence. 13. This was, as I have indicated, a very large scale operation. It was carefully prepared, and there is no doubt at all that the appellant freely joined in it for a period of the best part of a year. Given the scale and seriousness of the crime, and notwithstanding the circumstance that the appellant was not the promoter, it would have been difficult, in my view, for the sentencing judge to suspend the sentence, despite the matters personal to the appellant that were urged upon him and again to this court. 14. But, in the end, that was a matter for the learned judge. In my view no error of fact or law of significance has been made in the sentencing remarks, and I am satisfied that there are no grounds upon which an appeal court, whatever its own view of the matter, could properly interfere with the sentence. I think, however, that it was in fact the correct decision that the learned judge made. But, as I say, this court does not sit simply to substitute its own view for that of the learned judge. 15. It not having been shown that the judge erred in any significant fashion, or that the sentence was manifestly excessive, the dismissal of the appeal is inevitable.

JUDGE2 DUGGAN J I agree that the appeal should be dismissed for the reasons given by my brother Cox.

JUDGE3 DEBELLE J I agree with the reasons of my brother Cox, and with the order he proposes.