Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Parity between co-offenders - Whether disparity between the suspension of a sentence justified - Drug offences.

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Lowe v R [1984] HCA 46; (1984) 154 CLR 606, followed.

Judgment Number: [2011] TASCCA 16

2 The sentence of nine months' imprisonment imposed on the appellant is varied by the addition of an order that three months' of that sentence be suspended on condition that for two years from his release from prison he not commit an offence punishable by imprisonment

1 The appellant appeals against a sentence of nine months' imprisonment imposed on him upon his conviction, on his plea of guilty, to the following charges:

• count 1 - possessing thing intended for use in the cultivation of a controlled plant for sale;

• count 2 - cultivating controlled plant for sale; and

•

that the sentence was manifestly excessive; and

•

that the sentencing judge, the learned Chief Justice, had no regard or insufficient regard to the principle of parity as between the appellant and his co-accused Alexander James Bartels.

3 The appellant and Mr Bartels were jointly charged with the same three charges and both offenders were dealt with in the course of the same sentencing hearing. Mr Bartels pleaded not guilty to count 1, the charge of possessing a thing intended for use in the cultivation of a controlled plant for sale. This plea was accepted by the prosecution and he was discharged on that count. Mr Bartels pleaded guilty to counts 2 and 3, the charges of cultivating a controlled plant for sale and trafficking in a controlled plant. For these two crimes he was sentenced to three months' imprisonment, the whole of which sentence was suspended on condition that for two years he not commit another offence punishable by imprisonment.

4 For three years prior to 16 June 2010, the appellant was the tenant of a rural property at Frankford. Mr Bartels resided at the property for about six months prior to 16 June 2010.

5 On that date police officers searched the property. In a shearing shed they discovered a hydroponic cannabis cultivation operation. The upper section of the shed had been separated and the half furthest from the residence had been isolated. Inside that half six cultivation or grow rooms had been constructed; three on each side of a central hallway. Four of the rooms were set up with 11 light shields, 11 globes and 11 transformers each. The other two rooms contained less elaborate hydroponic systems. Two of the rooms each had two cannabis plants growing in them.

6 Items seized by police from the shed and the residence on the property included: 42 ballast boxes or transformers; 76 light shields; 11 light fittings; 163 light globes; two water pumps; two air pumps; 21 containers of nutrition; four cannabis plants; about 904 grams of cannabis plant material, cannabis seeds and five smoking implements.

7 When interviewed by police the appellant admitted that he had used the hydroponic system in the shed to cultivate cannabis over a six month period. He said he had cultivated the cannabis in cycles which took on average three months to complete. On each of the two previous cycles four cannabis plants had been grown as was the case with the then current cycle.

8 The sentencing hearing proceeded on the basis that the appellant and Mr Bartels had each grown two plants per cycle and the total yield of each of the two previous crops had been approximately four pounds of cannabis. Each offender had retained about a pound of cannabis from each crop and the balance of two pounds had gone to a friend of the appellant in Victoria.

9 On behalf of the appellant it was explained that he had been a reasonably heavy user of cannabis since 1991 and that none of the cannabis he had retained had been sold on the local market, or was intended to be sold on the local market. The cannabis he kept was for his personal use. It was his Victorian friend who had constructed the grow rooms, provided the hydroponic equipment and installed it.

10 The prosecution accepted the appellant's pleas of guilty on the basis that the only benefit he had received from the provision of cannabis to his Victorian friend was the hydroponics system itself and one pound of cannabis per crop.

11 When sentenced the appellant was 38 years of age. He had prior convictions for possessing a prohibited substance and using a prohibited substance on 14 May 1991, for which he was fined $80, and possessing a prohibited substance, using a prohibited substance and refusing to state the source of supply on 27 June 1991, for which was fined $130. These convictions were all recorded on the same day. He had the shared custody of two sons aged 10 and 12. He was the proprietor of, and was running, a mini golf course in Launceston which employed seven people. Prior to this venture, which began in 2006, he had been in regular employment.

12 In the course of the sentencing hearing Mr Hall, the appellant's counsel, acknowledged that the cultivation system that had been installed had the potential to be a big operation and that the appellant's Victorian friend may have expected a lot of cannabis in return for what he had put in. However, counsel made the point that the operation had been interrupted before its potential had been utilised or the Victorian friend's expectations had been fulfilled. As to the likely future duration of the enterprise, the appellant's counsel said that he was without instructions and that this was a matter of speculation. He put to the sentencing judge that the cultivation system was in its infancy and that it was on this basis that the appellant should be sentenced. He submitted that whilst the hydroponic system was the appellant's, he had derived no greater benefit from it than Mr Bartels, and that this distinction provided no basis for any great disparity in the sentences to be imposed on them. His submission was: "One of them owned the equipment but both of them took the fruits of what was produced from it".

13 As to Mr Bartels, the prosecution accepted that the hydroponic system was installed before he started living at the residence, that he had not purchased any of the hydroponic equipment, and that the benefit he had received for the provision of cannabis to the appellant's Victorian friend was access to the hydroponic system and one pound of cannabis per cycle. Mr Bartels acknowledged purchasing nutrients and other consumables to facilitate the operation of the system.

14 When sentenced Mr Bartels was 36 years of age. He had no relevant prior convictions. His counsel's submissions on the sentencing hearing included the following. Mr Bartels had lived in a de facto relationship for 18 years and there were two young children of the relationship. For the bulk of his working life until 2008, he had been in the Australian Regular Army. Whilst in the Army he had obtained a trade qualification as a mechanic. In 2008 he had left the Army as he did not want to subject his children to the need to follow him from army base to army base. Having settled in Tasmania, he obtained employment with the Australian Maritime College as a marine engineer, but his contract with the college came to an end in 2009. He and the appellant had been friends since high school. About six months prior to 16 June 2010, when Mr Bartels was unemployed, he took up the appellant's offer of residence at the appellant's large farmhouse. Mr Bartels was a fairly heavy cannabis user. He was given the opportunity to assist in the growth of cannabis and did so for the two completed three month cycles referred to and the commencement of the next cycle.

15 It was submitted that Mr Bartels' involvement in that which had occurred was explained by his regular use of cannabis and the fact that he and his de facto wife had been unemployed.

16 When sentenced Mr Bartels was still unemployed. However, he had assumed the role of house husband as his de facto wife had obtained employment. The sentencing judge was told that Mr Bartels had substantially decreased his consumption of cannabis.

17 The first ground of appeal is that the sentence of nine months' imprisonment imposed on the appellant was manifestly excessive.

18 In the absence of any identified error of fact or law, a sentence will ordinarily only be set aside if, upon the facts, it is unreasonable or plainly unjust; House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. This will be so if the sentence is manifestly excessive, that is, wholly outside the range of sentencing options available to the sentencing judge; R v Boaza [1999] VSCA 126 at par[42], and R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, par[13].

19 The appellant's task in relation to this ground is made difficult by the absence of any other sentence on the Court's database where the crime of possessing a thing intended for use in the cultivation of a controlled plant for sale was the primary offence. There is no question that the appellant's possession of all of the equipment associated with the substantial hydroponic cultivation system found on his premises, coupled with his intention to use the same to cultivate and sell cannabis, was his primary crime. Up to the time when the system was discovered by police, the appellant's use of the system had been relatively modest. What flowed from that use was the subject of his convictions on counts 2 and 3 for cultivating a controlled plant for sale and trafficking in a controlled substance.

20 In the absence of any other sentence on the Court's database where an offender's primary crime was possessing a thing intended for use in the cultivation of a controlled plant for sale, the appellant is unable to point to a sentencing range for his criminal conduct. However, what can be said is that within the spectrum of criminal conduct that is the subject of sentences for drug offences involving cannabis, the defendant's possession of a substantial hydroponic cannabis cultivation system with the intention of using it to cultivate and sell cannabis was significant. The appellant was the person who made available the premises in which the system was installed. The system had the capacity to produce a very large quantity of cannabis. Whilst the extent and duration of the future operation of the system was a matter of conjecture, it is likely that, at the least, it would have been utilised until the appellant's Victorian friend had been fully rewarded for the expense, time and effort that he had put into its installation.

21 The appellant's employment history was good and, save for his convictions in 1991 for drug offences which did not involve cultivating or selling cannabis, he had no relevant prior convictions. He was entitled to the mitigatory benefit of his plea of guilty, albeit that its impact would have been greater had he named his Victorian friend.

22 Nonetheless, his criminal conduct was significant, it extended over a period of at least six months and was pre-meditated. He had allowed Mr Bartels to join him in using the system. When caught they were in the process of cultivating their third crop of cannabis.

23 In my view, a head sentence of nine months' imprisonment was appropriate for the totality of the appellant's criminal conduct.

24 By his second ground of appeal the appellant contends that the learned sentencing judge had no regard or insufficient regard to the principle of parity as between him and his co-accused, Mr Bartels.

25 The operation of the parity principle is an aspect of equal justice. "Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them." Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, Dawson and Gaudron JJ, at 301. A discrepancy between the sentences imposed on co-offenders will attract appellate intervention where the discrepancy is such as to give rise to a justifiable sense of grievance and appearance of injustice; Lowe v R [1984] HCA 46; (1984) 154 CLR 606, Gibbs CJ at 610, Mason J at 613 and Dawson J, agreed with by Wilson J, at 623 and Postiglione, Dawson and Gaudron JJ at 301, McHugh J at 309, Gummow J at 323 and Kirby J at 342. The assessment of whether the circumstances of a discrepancy give rise to a justifiable sense of grievance and appearance of injustice must be objective, as a sense of grievance can only be said to be justified if it can be so established. See Lowe, Mason J at 613 and Postiglione, Gummow J at 323 and Kirby J at 342.

26 Consistent with the parity principle, as between the appellant and Mr Bartels, like should be treated alike. The similar aspects of their criminal conduct is that which relates to their convictions on counts 2 and 3. My comparison of that conduct and their relevant circumstances is:

•

They were each involved in the cultivation of cannabis for the same period and to the same extent, that is, three crops of two plants each.

•

The evidence did not allow any distinction to be drawn between the extent to which they nurtured and cared for the crops.

•

Whilst it was the appellant who provided the cultivation system, this aspect of his criminal conduct was covered by the portion of the sentence that was imposed on him for count 1.

•

They each trafficked the same quantity of cannabis over the same period, that is, one pound each from the two crops that were harvested, which was provided to the appellant's friend in Victoria.

•

Prior to Mr Bartels' involvement, the appellant had been in contact with the Victorian friend to whom the cannabis was supplied. In this sense it can be said that the appellant initiated the cultivation and trafficking. However, this factor was, at least in part, covered by the portion of the sentence imposed on the appellant for count 1.

•

They were both cannabis users.

•

Mr Bartels had no relevant prior convictions, whilst the appellant had convictions in 1991 for possessing and using a prohibited substance.

•

When sentenced, Mr Bartels had been unemployed for about 18 months, whilst the appellant was in employment.

•

The appellant had refused to name his Victorian friend to whom the cannabis was supplied. The evidence did not establish whether Mr Bartels knew the name of this person.

27 Whilst there are differences between the circumstances of the appellant and Mr Bartels referrable to counts 2 and 3, on balance, I cannot see any reason for distinguishing between the sentences imposed on them in respect of those counts. More pertinently, as between them, I cannot see any difference in the factors that bear on whether it was appropriate to suspend that sentence.

28 As a suspended sentence of three months' imprisonment was imposed on Mr Bartels for his conviction on counts 2 and 3, it is reasonable to attribute three months of the sentence of nine months' imprisonment imposed on the appellant to his conviction on those counts and six months to his conviction on count 1. Whilst this does not provide the appellant with any grounds for complaint about the duration of that portion of his sentence that relates to counts 2 and 3, it does provide him with reason to complain that this portion of his sentence should have been suspended. As I have said, as between the appellant and Mr Bartels I can see no reason for differentiating between the factors that bear on whether it was appropriate to suspend the sentence imposed on them in respect of counts 2 and 3.

29 Accordingly, in my respectful view, an objective assessment of the failure to suspend three months of the sentence imposed on the appellant gives rise to a justifiable sense of grievance and an appearance of injustice on his part.

30 I would allow the appeal insofar as I would vary the sentence imposed on the appellant by ordering that three months of his sentence of imprisonment be suspended on condition that for two years from his release from prison he not commit an offence punishable by imprisonment.

31 I have had the benefit of reading the judgment of Evans J in draft form. I agree with his reasons and the orders he proposes.

32 I agree with the reasons for judgment of Evans J, and with the proposed orders.