Court of Appeal (Qld)|2000-03-29|Before: Davies JA, Pherson JA, Moynihan J

The applicant co-operated with the police and pleaded guilty to an ex officio indictment. Importantly, however, he did not identify the supplier who must himself have been a major trafficker who purchased his cannabis. The applicant was not himself a user a cannabis, the motive for the business being solely greed.

For the applicant it was submitted that it was erroneous that a sophisticated operation of production elevated the culpability that attached to trafficking and that it was erroneous to confuse sophistication with size and volume of production. To only a limited extent are those submissions correct. Moreover, the peculiar circumstances of the applicant's business make it difficult to compare it with other circumstances in which sentences have been imposed for production and trafficking. It hardly needs mention that although the sentence was imposed for trafficking it took into account the extent and sophistication of the production.

After referring to some cases which he submitted were analogous Mr Boe for the applicant submitted in his written outline that an appropriate sentence for production alone would have been two and a half to three years and for trafficking alone would have been three to five years. He then submitted that a term of four years with a recommendation after 18 months for mitigating matters would have been appropriate.

The cases which he relied on for his submissions with respect to production were Wittwer, CA 241/95; Cook & Ors, CA Nos 231, 242, 243, 250 of 1996; and Woods, CA 182/98. For his submission on trafficking he relied on McFadden,

CA 132/94 and Douglas, CA 110/94. On the other hand the respondent relied on Bercolli, CA 96/96, which had been referred to the learned sentencing Judge. That case involved a count of trafficking between April 1994 and April 1995.

Notwithstanding a plea of guilty at an early stage and the absence of any prior convictions a sentence of six years imprisonment with a recommendation after two years was held by this Court to be not manifestly excessive although as

Mr Boe pointed out today it was said in this Court that it was a very high sentence.

Comparison with that case indicates that the number of plants, the amount of money involved and the period of trafficking in that case were all substantially less than half that involved here. The reasons in that case also analysed a number of previous decisions including McFadden relied on by Mr Boe.

In my view, that case tends to show that the sentence imposed here was not manifestly excessive and having regard to the circumstances to which I have referred I do not think it was. I would therefore refuse Statham's application.

The position of the other applicant is quite different. Her offence arises solely from her remaining, living with the applicant and not going to the police in effect for a period of 12 months knowing that he was carrying on this business and failing to report it.

The applicant is Filipino of 37 years of age who came to Australia in 1984 to marry an Australian. That marriage ended and she entered into a relationship with Statham in 1993.

She has no financial or social support in Australia other than Statham and she has no prior convictions. After discovering Statham's activities she asked him to stop. She's never been involved in them in any way. She

co-operated with the police and pleaded guilty to an ex officio indictment.

Having regard to the circumstances which I have mentioned, in particular the applicant's financial and social dependence on Statham, and her attempt to persuade him to cease his illegal activities I do not think that her offence justified the imposition of a term of imprisonment of 18 months. I would therefore grant the application and allow her appeal to the extent only of varying it by substituting for the term of 18 months' imprisonment a term of six months' imprisonment.

R v LOBWEIN & Anor [2000] QCA 100 (29 March 2000)

R v LOBWEIN & Anor [2000] QCA 100

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Judgment (15 paragraphs)

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Cases Cited (1)

R v LOBWEIN & Anor [2000] QCA 100 (29 March 2000)