Misuse of Drugs Act 2001 (Tas), s 22.

Judgment Number: [2021] TASSC 3

1. The applicants, Anthony Vernon Brown and Leslie Michael Brown, have each brought a motion to review a sentence of two months' imprisonment wholly suspended, imposed upon them by Magistrate Brown on 13 May 2020. The sentence was suspended for 18 months on condition that they not commit any offence punishable by imprisonment for that period.
2. Their common and only ground of review is that the sentence was manifestly excessive.
3. The sentence was imposed on Anthony Brown for one charge of cultivating controlled plant (minor offence) contrary to s 22 of the Misuse of Drugs Act 2001. The applicant Leslie Brown was sentenced for the same offence of cultivating and, also, one count of possess controlled plant product (minor offence) contrary to s 25 of the Act, one count of possess controlled plant (minor offence) contrary to s 25, and using controlled plants or its products contrary to s 25.
4. Their offending arose out of the same enterprise of cultivating cannabis plants involving 77 mature and healthy plants.
5. The facts presented to the magistrate by the prosecutor were as follows. In February 2018 Northern Drug Investigation Services attended an address at Pipers River Road at Turners Marsh, a large bush property of approximately 1,000 acres. Police located between 70 and 80 healthy cannabis plants near the boundary of the property being grown in a single compound fenced with an electric fence, which appeared to have been well looked after. Police set up cameras pursuant to a warrant to cover the area. In March 2018, police inspected the cameras and three people were captured attending the compound, and one person was captured camping at the compound. On 15 March 2018, police returned to the compound with a search warrant. The applicant, Leslie Brown, arrived shortly after in a Navara utility with a large water tank on the rear of the utility. Police seized 77 healthy cannabis plants at the early stages of flowering and a small quantity of cannabis, about 9.8 grams, in a snaplock bag. It was not disputed by the prosecution that the cultivation of the cannabis was for personal use.
6. Leslie Brown was interviewed. He agreed that the cannabis plants belonged to him. He did not own the land and had found the compound several years prior while he was cutting wood in the area. He grew the plants from seeds in pots and transported them to Turners Marsh and planted them on New Years' Day. He planted about 80, but about three had died. He rarely tended them and seldom watered them. He admitted he had been going backwards and forwards from Karoola to fill up his water tanks to water the plants. He told police he had been a regular user of cannabis for 28-30 years, but this was the first time he had grown it. He smokes cannabis for relief of back pain. His prior convictions are now very dated, his record showing only traffic offences in the past 20 years. He has one prior conviction for drug-related offending in 2000, committed in 1998, involving possess prohibited substance and use prohibited substance for which a fine was imposed by the Magistrates Court.
7. Anthony Brown was interviewed by police and also made admissions. He admitted attending the property, first in February, and he admitted that he had assisted in watering the plants. He became involved after the cannabis plants had been planted. He had prior convictions, matters of substance now very dated (only traffic offences in the last 30 years) and none for drug offending.
8. The pleas in mitigation addressed the personal circumstances of the offenders, who are brothers. Leslie Brown was 59 years of age and works as a wood merchant on a casual basis. He was in a stable de-facto relationship and his financial circumstances were sound. He has an industrious history of work and employment. He is, as he told police, a long term cannabis user as a consequence of a back injury he suffered about 25 years ago.
9. Anthony Brown was 54 and employed as a builder's labourer with a local building company. He was in a long-standing de-facto relationship and also has sound financial circumstances. He has been working consistently since leaving school and, like his brother, is hard-working. He has been a long term user of cannabis.
10. Counsel for the applicants highlighted in his plea in mitigation that there were three people who were involved in cultivating the plants, and each was to receive a share. Therefore, the assertion by the prosecution that there were a lot of plants should be viewed in that light. Anthony Brown pleaded guilty at his first appearance, and in relation to Leslie Brown, his charges have not been in dispute and he pleaded guilty as soon as an allegation of a commercial enterprise was not pursued.
11. The learned magistrate proceeded to impose sentence after hearing the pleas in mitigation. He adverted to the salient aspects of the offending and their personal circumstances. He noted that the applicants were both mature men, both hardworking people with excellent industrial records. He said that in reality there was little to distinguish them in terms of their culpability and prior convictions. They had jointly embarked on the enterprise to grow cannabis and they were jointly involved over a period. They are both long-term cannabis users. There was quite a substantial number of plants.
12. His Honour noted that while both applicants intended to use the cannabis, "of course with a plantation of that sort, of that size, there's always the risk that inadvertently or by some other means that some or all of that cannabis could have got onto the market beyond the three of you. ... for example, plantations such as these are not uncommonly found by others and stolen ...". He added that there was some risk that these plants could have found their way into the community, although he accepted that that was not the applicants' intention.
13. In conclusion, his Honour stated: "... I form the view that I need to impose a sentence here which makes it plain, not just to you but, indeed, to others, that if you're going to embark on the business of cultivating fairly large numbers of cannabis plants, that that's something that you should think twice about and not get involved. This is plainly a case where an actual and immediate term of imprisonment is not appropriate. You're both mature men with relatively good records and I accept that this was the first time you've been involved in an enterprise such as this but the message doesn't just need to get to you - it needs to go to others that this is serious and you shouldn't be doing it even though this is a lower level drug, I accept. For those reasons, I'm going to impose a modest and wholly suspended term of imprisonment." His Honour then pronounced sentence.
14. There is no criticism of his Honour's remarks. The error is said to lie purely in the sentencing outcome.
15. Cultivating controlled plant contrary to s 22 of the Misuse of Drugs Act is a summary offence by virtue of s 18. It is to be contrasted with the offence of cultivating controlled plant for sale which is an indictable offence by virtue of s 15. The summary offence does not apply to cases involving cultivating for the purpose of sale. Sentencing principle would preclude a court when sentencing a person for the summary offence to proceed on the basis that they had an intention to sell any of the plants when they have not been charged with the more serious cultivating offence which has that intention as an element of the offence: R v De Simoni (1981) 147 CLR 383.
16. However, when considering the summary offence and the nature of the offending, courts will regard more seriously conduct which approaches cultivating with a commercial element such as a substantial number of plants or a sophisticated set-up.
17. Counsel for the applicants, Mr Richardson, made a number of key submissions in support of the application to review. One of them was that, drawing on his experience in the Magistrates Courts, usually a term of imprisonment, actual or suspended, will not be imposed for this offence unless a significant aggravating factor is present. Generally, a fine would be imposed. Counsel for the respondent, Ms Dawkins, accepted Mr Richardson's observations about the practice in the Magistrates Courts, but maintained that here there was an aggravating factor being the number of healthy and mature plants the subject of the charge. Mr Richardson highlighted that it was necessary to take into account that there were three offenders and the harvest was to be divided three ways.
18. In this context, I emphasise that the gravamen of the charge is cultivation of the plants and as co-principals, the two applicants and the third unknown participant, were engaged in an enterprise of cultivating these 77 plants. They were not each cultivating just one third of the crop.
19. Ms Dawkins also relied on 22 published sentences delivered in this Court from 2005 to 2015. Incidentally, there are no comments upon passing sentence for this offence since 2015. It is not often that offenders are sentenced in the Supreme Court for this summary charge. Sentencing for this offence in this Court may occur by reason of an alternative verdict after a trial where the jury found the accused not guilty of cultivating controlled plant for sale, but guilty of cultivating controlled plant: s 34A of the Misuse of Drugs Act. It may also occur where an application has been made under s 385A of the Criminal Code for the Court to sentence an offender for summary offences that are related to an indictable crime that has resolved by a plea of guilty.
20. Ms Dawkins referred to the Supreme Court sentences and drew attention to the fact that some of the offending had attracted suspended terms of imprisonment. Mr Richardson submitted that the sentencing outcomes were consistent with his experience of the Magistrates Courts that generally a fine is imposed unless there is an aggravating factor. He distinguished those sentences where the defendant had prior convictions for drug offending. (Here, as noted, one applicant had no relevant prior convictions and the other applicant was regarded by the learned magistrate as in a similar position.) It was acknowledged by Ms Dawkins that in those instances where suspended sentences of imprisonment were imposed, most had a relevant prior conviction or convictions. While I can see that most often fines have been imposed for first offenders, it can also be seen that generally, the offending is less serious than here. When reviewing other sentences for consistency, allowances must be made for the differences in the offending and the circumstances of the offenders. I conclude that a comparative exercise does not demonstrate that the sentences here are disproportionately severe.
21. The sentencing magistrate had a wide sentencing discretion. There is a range of legitimate outcomes and no single correct sentence: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624 [46]. The sentence will only be overturned as manifestly excessive if the Court infers a failure to properly exercise the discretion because it was excessive in the sense of "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499.
22. This is a case where the learned magistrate gave particular weight to general deterrence and was entitled to do so. They were mature men who were no doubt well aware of the wrongfulness of what they were doing. Their unlawful conduct spanned a period of months and involved some trouble and effort on their part. There were a relatively large number of plants. There was little to mitigate their offending, except that it was their first such enterprise. Cultivating cannabis gives rise to a risk that cannabis may seep into the community, and, as the learned magistrate pointed out, especially in the circumstances here. The harm caused by this drug is well realised: Sweetman v Tasmania [2016] TASCCA 5, 28 Tas R 325. I should add that cultivating for "personal use" does not mean that no harm will be done, there is the harm to the individual which should not be overlooked.
23. As the learned magistrate said, there needed to be a message that this is serious conduct. More so in this case than the general run of cases for this offence, because of the number of mature plants. First-time would-be offenders need to be deterred, as well as seasoned offenders.
24. The sentence imposed of a modest and wholly suspended sentence fell within the range of legitimate outcomes; it is a correct sentence. There was no error. The motions to review will be dismissed.