Earle, Regan Edward Frank v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Tennent J,Porter J
• Judgment Date: 02 November 2011
• Docket Number: 344/2011
• Date: 02 November 2011

[2011] TASCCA 16

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Porter JJ

344/2011

Earle, Regan Edward Frank

and

State of Tasmania

Postiglione v R (1997) 189 CLR 295 ; Lowe v R (1984) 154 CLR 606, followed.

Aust Dig Criminal Law [3521], [3522]

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.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

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

• • count 3 - trafficking in a controlled substance.

2 The grounds of appeal are:

• • 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...