Regina v Boundy

Court of Criminal Appeal (NSW)|2002-07-05|Before: Mason P, Hulme J, Smart AJ

CITATION : Regina v Boundy [2002] NSWCCA 319 FILE NUMBER(S) : CCA 60069/02 HEARING DATE(S) : 5 July 2002 JUDGMENT DATE : 14 August 2002

PARTIES : Regina v Steven Walter Boundy JUDGMENT OF : Mason P at 1; Hulme J at 2; Smart AJ at 51

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0150 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

Wednesday, 14 August 2002 R v Steven Walter BOUNDY Judgment

2 HULME J: On 19 September 2001 at Lismore Local Court the Respondent pleaded guilty to each of the following charges:- (a) That on 27 April 2001 at Murwillumbah he did supply a commercial quantity of cannabis leaf contrary to the provisions of section 25(2) (mistakenly mentioned as section 25(1)) of the Drugs (Misuse and Trafficking) Act 1985;

(b) That between 22 April 2002 and 27 April 2001 at Murwillumbah he did supply a prohibited drug namely cannabis leaf contrary to the provisions of section 25(1) of that Act; and

(c) That on 27 April 2001 at Murwillumbah he did cultivate 13 cannabis plants contrary to the provisions of section 23(1) of that Act. 3 On 29 November 2001 at the Lismore District Court the Respondent adhered to his pleas and Judge Hosking SC sentenced him as follows. On the first charge the Respondent was sentenced to imprisonment for a period of 12 months from that day. The execution of that sentence was suspended for its term on conditions of the Respondent's entering a good behaviour bond and other formal matters. In respect of the second and third charges he was ordered to enter into a good behaviour bond on the same terms.

4 The Crown has appealed against what it says is the inadequacy of these sentences.

5 Under s29 of the Drug (Misuse and Trafficking) Act, possession of cannabis leaf in anything like the quantity the Respondent had is deemed to be possession for the purposes of supply. In s3, "supply" is defined to include possession for supply. Under the Act, a commercial quantity of cannabis leaf is 25 kilograms.

6 The charges arose following the execution of a search warrant at the house occupied by the Respondent, his de-facto wife and their 2 children and responses he made during the course of a subsequent recorded interview. During the search the police found, in the words of Senior Constable Goodall:- In a car out the front a large amount of green vegetable matter

In the dining room a number of green vegetable plants hanging from a rope across the room.

a large amount of green vegetable matter on a tarpaulin on the dining room table.

In the lounge-room a number of green vegetable plants hanging from a rope across the room.

In the main bedroom a number of green vegetable plants hanging from a curtain rod and rope.

a large amount of green vegetable matter on a tarpaulin on the floor.

a large amount of green vegetable leaf separated by sheets of newspaper in a cardboard box in a walk-in (ward)robe.

9 plastic bags each containing green vegetable matter. These were also in the (ward)robe

In drawers, 4 envelopes, 2 film canisters, 2 coffee tins, a metal tin and a plastic bag all containing seed. The envelopes were marked with the names of different types of seeds.

At the rear of the premises 13 plants, 10-20 cm high, growing in pots 7 Putting aside the 13 plants, the total weight of the vegetable matter seized was 49.21 kilograms. Although the total does not fully match, the police Facts Sheet before the sentencing judge stated that the vegetable matter on the 2 tarpaulins weighed 24.5 kg., that in the box weighed 3.5kg., that in the plastic bags weighed 246 grams, and the balance located throughout the house weighed 18.75 kgs.

8 The vegetable matter was identified as cannabis. The Respondent said that the material hanging were about 20 plants which had been cut off at the base, and which were drying. Some branches had been removed and were hanging separately.

9 In his remarks on sentence Hosking DCJ referred to some of the answers the Respondent gave during the course of his ERISP. His Honour said:- "The Prisoner… told the police… that he had cultivated the plants that he was drying in his house from seed, "Just by going in the bush, digging a few holes" he said "putting some seeds in there and letting them grow." He said that he did not even need to water them because they are just a week and they just grow.

He was asked by police what his intention in relation to the cannabis was, and he said at answer 54 "Well mainly to smoke maybe make a bit of money I suppose." And he told police that he proposed to sell a little bit of it. He was asked about the cannabis, the dried cannabis, he said that he thought that he might have sold "whatever anyone wanted I suppose." He said he thought he might have sold three small bags for about fifty dollars each.

He told police that he was a regular smoker himself of cannabis once or maybe twice a day and that he had smoked it as recently as the night before. Asked how much of the seized cannabis he intended to sell he said at answer 170 "I don't know, just to keep us going a bit better you know."

10 His Honour went on:- "I accept submissions put by Mr Weller that the total weight of 49 kilograms of cannabis plant including leaf is somewhat illusory in that what the police found were whole plants with the roots removed much of which was commercially useless stem and that these plants had been harvested a short time before the police arrived in conditions where there had been heavy rain and no doubt contained a considerable percentage of water.

Technically this is a supply in the sense of having had in the prisoner's possession of not less than the commercial quantity but realistically the saleable portion of these plants would have been considerably less than the commercial quantity were it not for the statutory definition of cannabis leaf.

In my view I have to look at the matter realistically. This was a small operation, by a man who wanted to grow his own cannabis for his own use rather than buying commercially and he thought he might sell a little bit on the side and did so on a couple of occasions. The reality is that he was not a large scale cannabis supplier at all but a small backyard grower in the way that I described. I propose to sentence him accordingly."

11 The Crown criticised his Honour's finding that the saleable portion of the plants would have been considerably less than a commercial quantity, contending that the terms of the first charge precluded such a finding. The Crown also submitted that, given the amount of cannabis leaf found, the conclusion that the Respondent was only a small backyard grower was also erroneous. With both of these submissions, I agree.

12 The Crown also submitted that his Honour was in error in addressing the issue of how much of the material seized by the police was saleable but because the extent of the Respondent's operation and the value of the product he possessed were considerations relevant to sentence, I disagree with this submission.

13 The definition of cannabis leaf in the Drugs (Misuse and Trafficking) Act makes it clear that stems of non-growing plants are included in the expression "cannabis leaf". The charge against the Respondent and for which he stood for sentence properly reflected the presence of these stems and such moisture as was present in the vegetable matter - c.f. R v Olbrich (1999) 199 CLR 270 at 279 et seq.

14 As counsel for the Respondent conceded, in the face of the relevant terms of the Act the suggestion that the quantity of useable or saleable cannabis was appreciably less than that answering the statutory definition was a matter going to mitigation on which the Respondent bore the onus of proof. However in this connection, there was little for his Honour to go on. The Crown conceded that the weight of the material collected would have been higher because it was recently harvested and that it would dry out, the extent of drying being dependant on the time over which that occurred - T2-3. The Crown also conceded that "there may be some practice that the stems are removed" albeit this was at a time when it was anticipated the Respondent would give evidence on the topic of what he expected to obtain from his harvesting - T3. In fact the Respondent was not called.

15 A little further information is provided in the Respondent's ERISP. He agreed that in the lounge room some of the cannabis consisted of dry stems and leaf - Q36 and that the contents of the plastic bags and box in the bedroom were dry leaf - Q48, 51,112. The vegetable matter on the tarpaulins was dry leaf and stem - Q67, 68. Some, if not all of the material in the boot section of the car was also dry leaf - Q81. It is not clear to what proportion of the total weight the Respondent's answer "it was wet too" relates - Q166. In light of earlier answers it cannot have been to the total 49.21 kilograms.

16 The Respondent's answer to question 87 suggests that the most recent harvesting was on the previous day and was of only a few plants. Not all of the 20 plants were harvested "only yesterday or the day before" - Q104-110. The contents of the box were harvested a week earlier - Q113. Some of the leaf in the plastic bags may have been drier and was bought by the Respondent.- Q115-118.

17 The concessions by the Crown mean that a finding that the useable weight was less than 49.21 kilograms was inevitable but there was no concession which permitted a conclusion "that the saleable portion of the plants would have been considerably less than a commercial quantity". While it may be accepted that the District Court deals with far more cases involving cannabis than does this Court, there is absolutely nothing to suggest that information to the effect that something of the order of 50% of the weight of wet cannabis would have been lost by drying or in the discarding, if it occurred, of all the stem was a matter of which his Honour did, or could, take judicial notice: A fortiori when it is not known precisely when many of the cannabis plants were harvested, how wet each was when harvested, and how long each plant had been drying.

18 The issue of whether the Respondent was only a small backyard grower was also a matter of mitigation on which the onus lay on the Respondent. The value of the cannabis demonstrates that he was not, at least to any degree which mitigates his criminality. During his ERISP the Respondent was asked about any sales he had made. I shall not set all of them out verbatim but many of his responses cannot be regarded as other than evasive. However he did say that he was selling "Just fucking whatever anyone wanted, I suppose" in bags and he had sold about 3 little ones. The bags contained about a quarter of an ounce and sold for $50 each. The sales were to strangers and made "on the streets I suppose, in the park and that" - Q120-130. Asked when he had actually sold it, the Respondent replied - Q133:- "Um, oh, I can't remember now um, must have been I don't know, about three days ago I suppose, I was in there yeah, yeah, about three days ago."

19 On one of the plastic bags in the wardrobe the Respondent had written, "selling first".

20 A quarter of an ounce is about 7 grams. A kilo of leaf would yield 140 such deals, worth about $7000. Even if two-third of the 49.21 kilograms had not been saleable - a conclusion which, as I have indicated, I do not regard as open - the value of what was left, on the only evidence his Honour had as to value, was in excess of $100,000.

21 And insofar as it may be suggested that much of the cannabis may have been for the Respondent's own use, one should be conscious of his answers during the ERISP to the effect that he smoked once or maybe twice a day, smoking "not much, you know, just a cigarette - A142.

22 The contrast between the sort of value the cannabis leaf had and the Respondent's other income - he was unemployed, receiving $280 a fortnight in social security payments - also argues for the conclusion that his activities were decidedly commercial, even if he smoked some of the leaf.

23 It is also relevant to consider some of the Respondent's statements as to the seed. The seed found was, according to the Respondent, "Maybe to grow a few of them I suppose" - A64. The seeds were supposedly all fresh and he had them because "people I see around mate, they just give you seeds" - A158 His intention so far as the plants in the pots were concerned was to grow them. The plants found hanging around the house had been planted in the previous November in what the Respondent thought to be public or national forest land.

24 When recognition is given also to the fact that the Respondent was in possession of 10 containers of seed, the freshness of which was apparently of interest to him, and the potted plants which were to be his next crop, it was quite wrong for his Honour to sentence the Respondent as if he were but a "small backyard grower".

25 Although I do not need to rely on it, I might also add the following. When I advanced some of the above propositions to counsel appearing for the Respondent, he submitted that there was nothing to suggest that the cannabis could all have been sold at the prices obtained for the 3 bags. In that regard a submission or statement from the solicitor who appeared for the Respondent on sentence and on which his Honour was presumably asked to act should be recorded:- "Very much so, your Honour, and it's a situation where a fellow like this, he's smoked since the age of 14, he's knocking his head against the wall trying to get work, he's going to the local hotel and buying cannabis directly through there and the word's there, it certainly is in Murwillumbah. I know from over a hundred-plus cases that come harvest time, if you've got something to sell you can sell it as well. So that was the environment he was in , but he's got an opportunity, your Honour. He's got an opportunity to work, continue to look after his children and I must say that I've advised him very clearly from the first conference as to what the penalties are. So he's had a - he hasn't had a soft approach from his lawyer." - (emphasis added)

26 The errors to which I have adverted above means that Hosking DCJ's sentencing of the Respondent miscarried.

27 The significance of the error requires attention to further provisions of the Drug (Misuse and Trafficking) Act. Under it, the offence of supplying a commercial quantity of cannabis leaf carries a maximum penalty of 15 years imprisonment and a fine of 3,500 penalty units. A commercial quantity is 25 kilograms to just under 100 kilograms. If the quantity involved is less than 25 kilograms the maximum penalty is 10 years imprisonment and a fine of 2,000 penalty units. Under s17 of the Crimes (Sentencing Procedure) Act 1999, a penalty unit is $110.

28 Although the matter was not argued it would seem that despite the terms of s31(1), the combined effect of that sub-section and s32(2) enables all offences involving less than a commercial quantity of cannabis leaf to be dealt with summarily if neither the Crown or the Accused elect to proceed on indictment. If the matter is dealt with summarily, the maximum penalty is imprisonment for 2 years and a fine of 200 penalty units.

29 The second offence rendered the Respondent liable to a penalty of 10 years imprisonment and a fine of 2000 penalty units. However had that offence stood alone it is virtually certain it would have been dealt with summarily as the quantity of 21 grams was less than the 30 gram "small quantity" referred to in the Act. If dealt with summarily, the maximum penalty would have been 2 years imprisonment and a fine of 50 penalty units.

30 The third offence also rendered the Respondent liable to a penalty of 10 years and 2000 penalty units. The range of numbers of plants to which this penalty applies is between zero and 250. Had that offence been dealt with summarily, the maximum penalty would have been 2 years imprisonment and a fine of 50 penalty units.

31 The principles governing the sentencing of those engaged in commercial drug dealing are well known. "It has been said in this Court on many occasions that those who use drugs of any kind for the purpose of obtaining money, that is for profit to themselves, must expect, except in exceptional circumstances, the imposition of a gaol sentence." - R v Blanco (unreported, CCA, 22 October 1987) "This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate… The position is worse where there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence." - R v Clark (unreported, CCA, 15 March 1990):

32 Expressions to similar effect, including the use of the term "exceptional" to describe those occasions when a non-custodial sentence may be acceptable is to be found in Pham (unreported, CCA, 3 April 1990) and Kmet (unreported, CCA, 8 October 1992). The principle is but a logical corollary of others, well established, and features of commercial drug dealing. In W H S (Unreported CCA 27 March 1995) Hunt CJ at CL said:- "....in seeking to determine the sentence which is appropriate to a particular crime, it is always important to have regard first and foremost to the objective gravity of the offence, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Rex v Geddes (1936) 36 SR 554 at 556; Regina v Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or mental capacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Regina v Rushby (1977) 1 NSWLR 594 at 597-598."

33 Wood CJ at CL said in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught". To similar import were the remarks of Gleeson CJ in R v Swann (unreported, CCA, 17 July 1992), "The reason why drug dealing is as profitable as it is, is that it is illegal, and therefore, risky. It is consequently appropriate that, when a person who is engaged in such activity for profit is apprehended, the risk comes home".

34 The Respondent, whose record includes 2 convictions for possession of a prohibited plant and one of possession of a dangerous drug, engaged over a period of months in a deliberate enterprise which he must have known to be illegal and which was calculated to lead to substantial profits. It is impossible to avoid the conclusion that that was his intention also. He intended to repeat his misdoing with the potted plants the police found in his backyard - Q73. Unless his situation was truly exceptional, the only proper sentence was one of full time custody.

35 And there was nothing to bring the Respondent's situation into the exceptional category. His Honour did make favourable findings as to the Respondent's subjective circumstances which may perhaps be encapsulated in his Honour's remarks that "He is described by one referee as caring, honest, trustworthy, reliable, and a responsible person with a strong work ethic" and that "I think he is capable of making himself as he had been in recent years, into a decent and useful citizen". Even if the weight to be given to those remarks were not attenuated by the fact that the Respondent's decency over recent years had involved deliberate criminality, the matters referred to do not come close to constituting exceptional circumstances. Nor did anything else in the evidence before his Honour.

36 His Honour's remarks also reflect an erroneous appreciation of the Respondent's record. While observing that the Respondent had some convictions for break, enter and steal in the mid 1980s his Honour did not mention the 3 convictions for possession of plants or drug I have referred to above. His Honour remarked also, "he has no conviction either in New South Wales or Queensland since 1992 and even in 1992 it was for driving an unregistered vehicle, not really a criminal offence, in the strict sense of that description".

37 Although the Respondent was entitled to recognition of the fact that he had been free of convictions since 1992, in fact his convictions in 1992 were four in number. Although committed on the one occasion, they were for driving while unlicensed, driving an unregistered vehicle, driving an uninsured vehicle and for the offence described in the antecedent report as "plates calculated to deceive". All of these are really "criminal offences", even if not as serious as many others.

38 There remains the question of whether, in the exercise of its discretion, this Court should decline to interfere and re-sentence the Respondent. One matter relevant is what I may call the difference in quality between a suspended and a custodial sentence. Another is any delay in the prosecution of the appeal. The Respondent was sentenced on 29 November 2001. By a letter written on 21 December but not received until the first week of January, the Respondent was advised by the Crown that it was considering an appeal. On 15 February 2002 the Notice of Appeal was lodged. The Respondent was advised of that fact on about 18 February and formally served on 11 March. This chronology, in a case where the Crown seeks the substitution of a custodial sentence for one which was suspended, reveals a degree of delay which is regrettable and provides an argument against allowing the appeal. The double jeopardy involved in Crown appeals is not something which should be prolonged.

39 But in judging the weight to be given to this factor, it is also appropriate to recognise that the time between arrest and the present of some 15 months is much less than delays in the criminal justice system used to be and the Respondent willingly placed himself in jeopardy for months during which he grew the plants which have led to the charges and, as the presence of the plants in pots show, was intending to continue such jeopardy.

40 I am of the opinion that the Court should not exercise its discretion to dismiss the appeal. I am further of the view that it should impose a full time custodial sentence. In arriving at these conclusions I am much influenced by the seriousness with which the legislature, as demonstrated by the terms of the Drug (Misuse and Trafficking) Act views drug dealing, by the fact that the Respondent's offence was deliberately embarked upon and by the fact that, given the profits which can be made, those tempted to offend need a sufficient incentive not to do so.

41 When one comes to consider where, on the scale of criminality, the Respondent's offence of supplying a commercial quantity falls, a number of features stand out. The deliberateness of his actions, what I regard as the inescapable inference that he knew they were against the law, the profit motive and the fact that he was obviously the principal in the operation means that, subject to the impact of quantity, by any objective standards his offending fell within the category of a worst case. There was nothing more he could have done to offend the statutory proscription. The quantity was somewhat less than half of the range of commercial quantities which, as I have said, cover weights between 25 and just under 100 kilograms and render the offender liable to 15 years imprisonment. The quantity was however almost twice that at the top of the range of indictable quantities (zero to just under 25 kilograms) which render an offender liable to 10 years imprisonment. When all of the matters are taken into account, including even a 50% allowance for stem and moisture, there is much to be said for the view that by any objective standards the Respondent's offence was a worst case falling within the indictable category, and calling for imprisonment for 10 years.

42 The dichotomy between the yardsticks set by the penalties for indictable and commercial quantities were not the subject of debate during the hearing of the appeal. In these circumstances, I am prepared to approach the matter by reference only to the terms of the offence with which he was charged. Nor, beyond reference to a number of cases I had reviewed in R v Burnett and Ors (1996) 85 A Crim R 76, was there any argument directed to the general level of sentences imposed for offences of the nature of that committed by the Respondent or whether that level appropriately reflected both the penalties laid down in the Drug (Misuse and Trafficking) Act and the general principle of sentencing that "In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262. See also Postiglione v R (1996-97) 189 CLR 295 at 341 Accordingly this case is not the occasion for that sort of review either. I shall proceed on the basis of my impression that the general level is lower.

43 The Respondent is entitled to have some weight given to his Honour's favourable findings as to his subjective circumstances. He is also entitled to some consideration because of the change in sentence to one of full time custody.

44 In respect of the charge involving a commercial quantity, this Court should sentence the Respondent to imprisonment for a period of 3 years. I make it clear that the selection of that period is done in the exercise of the discretion this Court has in the case of Crown appeals and not because I regard it as the minimum which the sentencing judge should have imposed. That should have been very substantially higher.

45 So far as the offence of the supply which encompassed the sale of the three quarter-ounce parcels is concerned, again because it was, or was part of, a commercial enterprise the sentence should be one of imprisonment. The fact that it could and, if it was his only offence, was likely to have been dealt with summarily disposes me to have regard to the maximum penalty in that situation - see R v Doan (2000) 50 NSWLR 115 at 124. In my view the minimum sentence which should have been imposed was imprisonment for 6 months. However, as that offence was intimately involved with the enterprise the subject of the first charge, the terms of imprisonment for both of these offences should be made concurrent.

46 The number of plants the subject of the third charge was relatively low - 13 as opposed to 249, the maximum number for which the maximum penalty of 10 years was prescribed - but given the Respondent's involvement as I have described it, the minimum sentence which should have been imposed for this offence was 6 months imprisonment. Because the third offence arose as an incident of a second crop it merited an additional term of imprisonment and this sentence should be cumulative.

47 Given the terms of s 5 of the Crimes (Sentencing Procedure) Act, I should record that the Respondent's deliberate criminality, the need for general deterrence and the decisions I have referred to above are the reason why no penalty other than imprisonment is appropriate for any of the Respondent's offences.

48 The Respondent thus should serve an effective term of imprisonment of 3 years and 6 months. This will not be the Respondent's first time in prison. Partly on that account, and subject to one matter, I am not satisfied that there are any special circumstances or that in any event there is sufficient reason to make the Respondent's non-parole period less than three-quarters of the term of his sentence. However the accumulation of two sentences provides a reason for finding special circumstances in relation to the second and reducing the non-parole portion of it. I would also slightly round that period downwards. I would however, again as a matter of discretion, set the commencing date of the first of the Respondent's sentences as the date upon which the sentence imposed by Hosking DCJ commenced, viz. 29 November 2001.

49 Accordingly, the orders I propose are:- Allow the appeal.

Quash the sentences imposed by Hosking DCJ on 29 November 2001.

In respect of the offence of supplying, on 27 April 2001, a prohibited drug, to wit a commercial quantity of cannabis leaf, the Respondent be sentenced to imprisonment for 3 years, including a non-parole period of 2 years and 1 month, both such periods to commence on 29 May 2002.

In respect of the offence of supplying, between 22 and 27 April 2001 a prohibited drug, to wit cannabis leaf, the Respondent be sentenced to a fixed term of imprisonment of 6 months commencing on 29 November 2001.

In respect of the offence of cultivating prohibited plants, the Respondent be sentenced to a fixed term of imprisonment for 6 months commencing on 29 November 2001.

50 The Respondent will become eligible for parole on 28 June 2004.

51 SMART AJ : The Crown has appealed on the ground of inadequacy against these sentences imposed in the District Court at Lismore on 29 November 2001. (a) Supply prohibited drug to wit cannabis leaf on 27 April 2001 - deemed - not less than commercial quantity - 12 months imprisonment suspended on entering into a bond

(b) Cultivating a prohibited plant, to wit, cannabis (13 plants) on 27 April 2000 - good behaviour bond for 12 months.

(c) Supply a prohibited drug, to wit, cannabis leaf between 22 and 27 April 2001 - good behaviour bond for 12 months. 52 Mr Boundy made full admissions when interviewed by the police and pleaded guilty at the first available opportunity. He was committed for sentence by the Local Court

53 On 27 April 2001 the police executed a search warrant at the residence occupied by Mr Boundy and his partner at Dulguigan, via Murwillumbah. The police found a large number of cannabis stems and leaf in the dining room, the lounge room and the main bedroom. These were full plants with the root system removed. There was some dried cannabis leaf in a cardboard box in the main bedroom and nine bags containing a total of 246 grams of cannabis leaf. There were also some cannabis seeds and some books on the cultivation of cannabis. In each of the main bedroom and dining room there was a large tarpaulin on the floor which contained a quantity of dry cannabis leaf and stem.

54 In the rear yard of the premises there were 13 cannabis plants growing in pots.

55 The total weight of the cannabis leaf and stem was 49.21 kgs. The 13 plants had an average height of about 15 cms. During the recorded police interview the police explained to the offender that because the root systems of the plants had been cut off they were not classed as plants but as leaf and stem and that the entire plant except for the root system had been weighed and that such leaf and stem weighed a total of 46.75 kgs. The offender responded that they were wet too. (I interpolate that the judge was told that inquiries revealed it was a wet April). The offender had harvested them on the day prior to his arrest, using his car. He estimated that there had been about 20 plants.

56 The offender told police that he had cultivated the plants from seedlings which he had planted in the soil in November 2000. With the natural rainfall he had not had to water them. He also told the police that this was the first occasion he had sold cannabis leaf. He estimated that he had sold three little bags each containing about a quarter of an ounce for $50 to strangers about three days previously.

57 The offender stated that his intention with the cannabis was mainly to smoke it but also to make a bit of money by selling some of it. Asked how much of the seized cannabis he intended to sell he replied, "I don't know, just a little bit here and there, you know, just a bit, just to keep us going a bit better you know." He also said that he was selling cannabis to anyone who wanted it, he supposed. The overall picture which emerges was that the offender had sold less than an ounce of cannabis at the time he was arrested but that he intended to sell some more cannabis to anyone who wanted it. However, the bulk of the cannabis harvested was to be retained for his own use. He was about to start, or had just started trafficking in drugs by selling part of what he had. The proposed venture was stopped before it got underway.

58 At the start of the sentencing proceedings the solicitor for the offender raised a problem with the judge. It had not been possible to have the plants weighed without the stalk and stem and in a dried state. The solicitor had made inquiries to locate the plants and have them weighed. They had come to nought as the exhibits officer had died. Apparently, no one else could help.

59 The judge was left in a most unenviable position. It was important to know the weight of the useable cannabis but that could not be ascertained, through no fault of the offender. In these circumstances fairness to the offender required that the judge make the best estimate he could, relying on his experience and local knowledge. Of necessity, no precise figure was available. It would not have been satisfactory for the sentencing exercise to be further adjourned. That was unlikely to lead to the problem being solved. At the end of his sentencing remarks, following a request from the Crown Prosecutor the judge said "Yes, I order that the cannabis the subject of the police search and seizure be destroyed, if that has already been done. That reveals the uncertainty which existed about whether the drugs were still in existence and where they were.

60 The judge accepted that the total weight of cannabis plants including leaf was somewhat illusory, as much of what the police found was commercially useless stem. Further, there had been heavy rain so that the "plants", which had been harvested shortly before the police arrived, contained a considerable percentage of water. The "plants" had to be dried out and the cannabis leaf removed from the body of the remainder of the plants.

61 The commercial quantity of cannabis leaf is 25 kilograms.

62 Bearing in mind that much of the weight of the "plants" would be in the non-saleable (or non useable) part of the plants and the presence of a considerable amount of water, I think that the judge was correct to remark, in the absence of being able to weigh the plants and the saleable parts: "Technically this is a supply in the sense of having had in the prisoner's possession … not less than the commercial quantity but realistically the saleable portion of these plants would have been considerably less than the commercial quantity were it not for the statutory definition of cannabis leaf."

The judge continued: "In my view I have to look at the matter realistically. This was a small operation, by a man who wanted to grow his own cannabis for his own use rather than buying commercially and he thought he might sell a little bit on the side and did so on a couple of occasions. The reality is that he was not a large scale cannabis supplier at all but a small backyard grower in the way that I described. I propose to sentence him accordingly." 63 The Crown attacked the judge's finding that realistically the saleable portion would have been considerably less than the commercial quantity were it not for the statutory definition of cannabis leaf. The Crown complained that there was no evidence that this was so and that the onus lay on the offender to prove these facts. It complained that the judge was stretching judicial knowledge and common sense too far. I think it was open to the judge to take the course which he did. I have no difficulty in accepting that the bulk of the weight of "the plants" would be in the stem and the unsaleable parts and that the water would have added appreciably to the weight of "the plants". Nor do I have any difficulty in accepting that the saleable parts probably weighed less than 25 kilograms. The judge had to make the best evaluation he could in the absence of being able to weigh the plants and the saleable parts. If an inspection had been possible this would have helped.

64 It must be remembered that the offender pleaded guilty to supplying a commercial quantity of cannabis leaf and that the offender's contentions go to the extent of the penalty which should be imposed, not his guilt.

65 The judge's finding that the offender was a small backyard grower who wanted to grow his own cannabis for his own use and that he thought he might sell a little bit on the side was unduly benign. Assuming that the saleable portion of cannabis leaf was 18-24 kilograms the judge's finding was too benign even allowing for self use. The correct inferences from the evidence were that there would be a reasonable amount of cannabis leaf available for sale and that if the offender not been stopped at least several kilograms of cannabis leaf would have been sold.

66 The applicant was born on 5 September 1967 and was thus aged 33 at the time of the offence. He was dealt with in the Cairns Children's Court and Cairns Magistrates Court between 1984 and 1988 for some dishonesty offences. For the offence of break and enter a dwelling house at night with intent he was in 1987 sentenced to imprisonment for nine months. This was his most serious offence. He had no offences between June 1988 and March 1992. In March 1992 he was fined on charges of unlicensed driver (2 counts), unregistered driver, uninsured driver and plates calculated to deceive. He had no offences between March 1992 and April 2001.

67 The Crown contended that the judge's statement to the effect that the 1992 offences were not really criminal offences in the strict sense of that description was erroneous. This is a minor point. All the judge was endeavouring to convey was that he did not regard driving offences as being in the category of serious offences.

68 The judge noted that the offender had excellent testimonials and was described as being a very good father to his children, of whom there were two. He and his partner had been together for over four years. The offender's mother died in 1980 when he was aged 13. Her loss unsettled him considerably and he commenced smoking marihuana when aged 15. He was educated to halfway through Year 10. On leaving school he worked with his elder brother and learnt the skills of plastering.

69 At the time of the offence the offender was unemployed and on social security. He has been a marihuana user since 1982 and smoked it nearly every day. He told the District Manager of the Probation and Parole Service, Murwillumbah, he was out of work at the time of the offence, that he got depressed and so he grew some plant "to help me get through a bit easier." The offender admitted that his arrest had been "a big wake up call." He has attended counselling sessions with the Drug and Alcohol counsellor at Murwillumbah Community Health who feels that the offender has made genuine attempts to break his addiction to marihuana. The District Manager thought that the offender was contrite and assessed him as suitable for periodic detention.

70 The judge relied on this passage from the District Manager's Pre-Sentence Report: "Mr Boundy presents as a quiet, somewhat tense person, who has some unresolved emotional issues which contributed to his dependency on marijuana from a young age, it is considered that his disruptive upbringing had an adverse impact on him. The offender does however seem to have made some positive progress since his arrest. His involvement with his family in the last few years seems to have provided the purpose that was missing in his younger years and he does seem to regret his involvement in this cultivation."

71 The Tweed Recruitment Job Centre has advised that the offender had been a client since 19 January 2001 when he was referred by Centrelink for Intensive Assistance support for unemployed persons. After participating in a Horticulture training course, completing work experience and attending basic computer training the offender commenced full time employment on 16 November 2001 and is now off Centrelink Benefits. This was a major step forward and rightly weighed heavily with the judge.

72 Thus, the judge thought that the offender's prospects of rehabilitation were very high. The judge said: "I do not propose to deal with him as a drug dealer in the sense of somebody who regularly deals in prohibited drugs. I think this is an exceptional case, and one which while warranting a sentence of imprisonment, does not warrant the service of that sentence by way of full time custody."

73 The judge was entitled to take the view that the applicant's prospects of rehabilitation were very high and that he was not someone who regularly dealt in drugs. The evidence suggests that he was about to start dealing in drugs, but to a limited extent. It was likely to be on a relatively small scale. Fortunately, such dealing did not take place and is most unlikely to occur in the future.

74 Given the quantity of saleable cannabis leaf and the intended sales, the sentence was manifestly inadequate despite the offender's strong subjective features. This was a serious offence. It attracts a full time custodial sentence unless there are exceptional circumstances. It was not open to the judge to find that there were exceptional circumstances. They fell just short of that categorisation.

75 The question remains what should be done. The sentencing hearing took place 8 months ago. It is not in the interests of justice to place an offender in full time custody so long after he has been sentenced. That would disrupt if not negate his progress in rehabilitating himself and his employment.

76 The Crown stated that on 21 December 2001 a letter was signed stating that the Crown was considering appealing from the sentence imposed. That letter was not received by the offender until the first week in January 2002. I do not know whether the letter was sent by post or served by the police.

77 The Notice of Appeal bears date 15 February 2002. It was sent to the Registry under cover of a letter of 18 February 2002 and received in the Registry on 19 February 2002. The Office of the DPP asked the police to serve it. It was not served until 11 March 2002. Thus far matters had proceeded in a leisurely fashion.

78 Thereafter the offender applied for legal aid. He could not have effectively done so before. Legal Aid was not approved until 16 April 2002 and a letter to this effect was not received in the Registry until 19 April 2002. The offender's solicitor, who was located at Byron Bay received notice of such approval on Friday, 26 April 2002. The appeal was listed for hearing on 1 May 2002, that is, the following Wednesday. The offender's solicitor was thus not given enough time to prepare for the hearing and brief counsel. Accordingly, on 1 May 2002 counsel for the offender was forced to apply for an adjournment through no fault of the offender. The earliest date on which the Crown appeal could be listed for hearing, even with the active supervision of the Registry was 5 July 2002. On that day this Court reserved its decision.

79 None of the lengthy delay was the fault of the offender. It is no answer to say that the offender was given notice of a possible appeal in the first week of January 2002. There is no justification for keeping the matter hanging over the offender's head for so long. Nor is it sufficient excuse for the delay which has occurred to say that the offender's sentence hearing came on fairly quickly after the commission of the offences. That took seven months. The critical time is that between the imposition of the sentences by the judge and the date of the offender's entry or suggested entry into custody.

80 While of lesser importance I do not regard the period of 7 months between the date of commission of the offence and the sentence as expeditious or prompt when the offender makes extensive admissions on the day of his arrest and pleaded guilty in the Local Court. The offender was committed for sentence on 19 September 2001 to the District Court. His sentence hearing took place over two months later. For many years country matters of the kind here in question have been heard with reasonable promptitude. There is nothing out of the ordinary in the present case. It is not to the point that in the past on some occasions it has taken longer to conclude the sentencing hearing from the date of commission of admitted offences.

81 In Parsons and Poore [2002] NSWCCA 296 this Court regarded a delay of 8 months as an important factor in dismissing Crown appeals against the sentences of periodic detention imposed on young offenders for armed robbery with an offensive weapon. There were other factors, two of the judges taking the view that there were exceptional circumstances. Sully J dismissed the Crown appeal solely upon the basis of the delay between sentencing and determination of the appeal. The other judges thought that this was very important if the Court's discretion fell to be exercised.

82 In R v Burnett & Ors (1996) 85 A Crim R 76 at 91-102 Hulme J referred to a number of this Court's decisions where the Crown had appealed against sentences imposed upon cultivators and suppliers of cannabis where the offences were more serious than those in the present appeal and full time custodial sentences were not imposed. This Court declined to intervene on a variety of grounds. Some were dismissed on discretionary grounds and delay was an important factor.

83 The delay and the favourable prospects of rehabilitation including that the offender had been trained for and gained full time employment preclude the imposition of full time custody. It would not be in the interests of justice to disrupt the progress of the offender's rehabilitation and employment by imposing a full time custodial sentence. On the other hand the major offence was a serious one and warranted a full time custodial sentence. There is no ideal or wholly satisfactory solution to the dilemma which exists.

84 In all of the circumstances I would impose a sentence of imprisonment of 2 years 6 months and order that it be served by way of periodic detention. I find that there are special circumstances. These include the favourable prospects of rehabilitation. I would fix a non-parole period of 18 months.

85 Hitherto, I have concentrated on the sentence for the most serious of the offences, namely the deemed supply of not less than a commercial quantity of cannabis. As to the other two offences which are not nearly so serious I would, because of the delay, dismiss the appeals against those sentences.

86 I propose the following orders: (1) Crown appeal against sentence of good behaviour bond for 12 months for each of the offences of cultivate a prohibited plant, to wit cannabis (13 plants) and supply a prohibited drug, to wit cannabis leaf, between 22 and 27 April 2001 dismissed.

(2) (a) Crown appeal against sentence of 12 months imprisonment, suspended on entering into a bond for the offence of supply prohibited drug, to wit cannabis leaf on 27 April 2001 being not less than commercial quantity allowed; sentence quashed. (b) In lieu thereof Stephen Walter Boundy is sentenced to imprisonment for 2 years 6 months to be served by periodic detention. Fix a non-parole period of 18 months. The sentence and the non-parole period are to commence on 23 August 2002 on which date Mr Boundy is to report prior to 7 pm to the Officer in Charge, Periodic Detention Centre, Grafton. Mr Boundy is to be released on parole on 22 February 2004 **********

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