Mildren, J
File No. SCC 20105853
Sentence - Misuse of Drugs Act
Darwin, 18 October 2001 (sentence)
#DATE 18:10:2001
HIS HONOUR: The prisoner, Brian Loran Hart, has pleaded guilty to two
counts against the Misuse of Drugs Act. The first being the unlawful
cultivation of a prohibited plant, namely cannabis, with the circumstances of
aggravation being the number of prohibited plants was a traffickable quantity,
namely 15 plants. That count carries a maximum penalty of seven years.
The second is the unlawful possession of cannabis plant material with the
circumstance of aggravation that the amount of the dangerous drug was a
commercial quantity, namely 1620.7 grams.
Although the number of plants involved was relatively small, this was a fairly
sophisticated operation which Mr Hart set up in his caravan. The caravan was
obviously prepared specifically for this. The photographs show just how
sophisticated it was, with the use of lights and hydroponic equipment,
air-conditioners, etcetera, etcetera.
I am told that the accused's purpose in growing the plants was to provide
himself with cannabis which he used in order to relieve his pain and insomnia
from osteoarthritis, which he suffers, and that is certainly supported by the
letter from Doctor Crompton, exhibit D1.
It is also plain that some of the material was intended to be sold so that the
prisoner could recoup his expenses. The primary purpose of the operation, I
accept, was to provide a source of cannabis for his own use for
self-medication.
It is relatively unusual for a court not to impose an actual sentence of
imprisonment where there is a commercial aspect to the possession or
cultivation of the prohibited drug, cannabis. But such cases do occur, and, in
fact, the case which Ms Cox referred me to of R v Dickson Hobbs and Chisholm, a
sentence imposed by Bailey J on 20 April this year, is one such case.
The starting point is whether there are particular circumstances of the
offence or of the offender, to use the expression used in section 37, such that
the court is of the opinion that such a penalty should not be imposed.
There are a number of circumstances here which lead me to the conclusion that
an actual sentence of imprisonment is not required in this case. I mention
them briefly. The prisoner is now 56 years of age; he was 55 at the time of
the offence.
He is a first offender. So he has a long well of good behaviour on which he
can draw. Notwithstanding the lack of any character references, I think, in
the circumstances of this case, given that he has worked all his life and he
has worked hard as a foreman carpenter and as a goldminer - perhaps that is an
exaggerated term, to describe the sort of existence he would have lived on the
leases at Pine Creek - but, in any event, he has worked hard all his life and
he has made a contribution in that way to the Northern Territory, so I am
prepared to infer that he is a person of good character.
I take into account in his favour that the majority of the cannabis was
intended to be used for himself. In fact, there is no evidence that he sold
any of the cannabis. I note that he suffers from emphysema. I take into
account as well the shame and the difficulties that he has already undergone
through being arrested and charged and brought into this court in relation to
these offences.
All of these factors combined lead me to conclude that there are particular
circumstances of the offender which make it just that I do not impose an actual
sentence of imprisonment.
I should add as well, of course, that there has been an early plea and a
handup committal. I forgot to mention those matters, but they are also
relevant to that decision.
I have been referred by the Crown to the case of Heyes, which bears some
similarities to this case. I do not think I am much helped by cases like that.
In this case, the head sentences need to be somewhat greater than were imposed
in Heyes, in my view, because of the commercial element that was involved and
the sophistication of the operation.
In relation to count 1, the prisoner is sentenced to imprisonment for nine
months. In relation to count 2, the prisoner is sentenced to imprisonment for
six months. That is a total of 15 months. I order that they be served
cumulatively.
I further order that those sentences be suspended forthwith. I do not propose
to impose any conditions. I fix the period of three years as the period during
which the prisoner is not to reoffend if he is to avoid the consequences of
section 43 of the Sentencing Act.
The items which are sought to be forfeited by the Crown are also forfeited
pursuant to section 34(3) of the Misuse of Drugs Act. Those items are set out
in exhibit P3 and have been marked with a black Texta, but, for the purposes of
this transcript I will just reiterate the numbers on the list. It is numbers
4, 5, 7, 8, 9, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
32, 33, 34, 35.
Anything else, Mr Dooley?
MR DOOLEY: Nothing further arising, Your Honour.
MS COX: No, Your Honour.
HIS HONOUR: Mr Hart, you have a total sentence of 15 months' imprisonment
which I sincerely hope and trust you will never have to actually go to gaol and
serve. I have suspended it forthwith. It is suspended on the basis that, if
you commit another offence punishable by imprisonment during the next three
years, you will be brought back before this court, probably before me, and I
will be then invited to order that you serve that term of 15 months'
imprisonment, as well as impose a further sentence upon you for whatever crime
it is that you are here for.
Your counsel tells me that you are not going to reoffend by mucking around
with cannabis any more. I sincerely trust that that is so. You should know
that cannabis is quite bad for your health and that there are other means of
dealing with the painful condition that you have.