Regina v M L Edwards [1999] NSWCCA 411

New South Wales Court of Criminal Appeal CITATION : Regina v M L Edwards [1999] NSWCCA 411 FILE NUMBER(S) : CCA 60385/99 HEARING DATE(S) : 10 December 1999 JUDGMENT DATE : 17 December 1999

PARTIES : Regina v Mandy Lee Edwards JUDGMENT OF : James J at 1; Sperling J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0508 LOWER COURT JUDICIAL OFFICER : Luland DCJ

COUNSEL : (Applicant): D H Patch (Crown): C K Maxwell QC SOLICITORS : (Applicant): Galloways (Crown): S E O'Connor CATCHWORDS : (No question of principle) ACTS CITED : Drug Misuse and Trafficking Act 1985 Downie (1997) 95 A Crim R 299 CASES CITED: Jurisic (1998) 45 NSWLR 209 Kirkwood [1982] QdR 158 Puke (NSW CCA, 12 September 1997, unreported) DECISION : See paragraph 28

IN THE COURT OF CRIMINAL APPEAL 60385/99 JAMES J SPERLING J

Friday 17 December 1999 REGINA v Mandy Lee EDWARDS

JUDGMENT

1 JAMES J: I agree with the judgment of Sperling J.

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IN THE COURT OF CRIMINAL APPEAL 60385/99 JAMES J SPERLING J

Friday, 17 December 1999

REGINA v Mandy Lee EDWARDS

JUDGMENT 2 SPERLING J : On 9 July 1999, the applicant, Mandy Lee Edwards, was sentenced by Luland DCJ, having pleaded guilty to one count of knowingly taking part in the cultivation of a prohibited plant (cannabis), contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 . The maximum penalty for the offence is imprisonment for ten years or a fine of 2,000 penalty units or both. 3 By the operation of s 6 of the Act, a person takes part in the cultivation of cannabis if the person provides the premises on which the cultivation is carried out or permits the cultivation on premises of which the person is the owner. That, however, was not the only basis for the charge. 4 The applicant had been indicted on charges which included cultivating a prohibited plant. The offence of knowingly taking part in the cultivation of a prohibited plant was not on the indictment. When the case was called on for trial, the Crown agreed to accept a plea of guilty to the offence of knowingly taking part, in full satisfaction of the indictment. 5 The two offences I have mentioned are prescribed by the same statutory provision and carry the same maximum penalty. It was said in argument that the offence to which the applicant pleaded guilty was a less serious offence. That may be so in some circumstances but not necessarily so in all cases. Watering, for example, has been held to be cultivating: Kirkwood [1982] QdR 158. And, by s 6(1), a person who participates in any steps in the process of cultivation takes part in cultivation. So a person who waters a prohibited plant both cultivates it and knowingly takes part in the cultivation of it. That person can properly be charged with either offence. The penalty will depend on what was done rather than on the offence with which the person is charged. Frankly, the reason for choosing to plead guilty to one offence rather than the other in the circumstances of the present case escapes me. 6 The sentence was for a minimum term of nine months imprisonment and an additional term of nine months. The applicant seeks leave to appeal against that sentence. 7 On the sentencing hearing, a statement by Detective Senior Constable D A Rutledge was tendered. The facts as recounted in that statement were as follows. On 10 April 1995, he and other police officers went to a farm property at Temagog, New South Wales. The applicant was there. She said that she lived on the property with her de facto husband. Cannabis plants were found growing in a shed. The applicant was warned. The applicant admitted that she had owned the farm for about ten years. She handed the police officer a key to the shed. A sophisticated hydroponic irrigation system was found in the shed, servicing some 185 cannabis plants which were up to one metre in height. The applicant admitted that the plants were hers. Asked how long she had been growing them, she said about a year. She said it was her husband's idea. She admitted that she had been picking the cannabis. (On appeal, it was submitted that these answers should have been construed as relating to the applicant and her husband. However that may be, the applicant did not, in her evidence. at the sentencing hearing, seek to explain those answers as intended by her to mean that it was her husband, and not herself , who was growing the cannabis.) The applicant admitted that her husband, who was away, had taken a load of cannabis to Sydney to sell. A number of containers and sealed bags of cannabis leaf and a set of drying racks were found in the house. One hundred thousand dollars in cash (possibly more) was found in the ceiling above the pantry. The applicant admitted that the money had come from the sale of cannabis. Firearms were found on the premises. The applicant said that a revolver, among the firearms, belonged to her husband, but that the other weapons were hers and were kept to keep intruders off the property. 8 Detective Senior Constable Rutledge was called at the sentencing hearing. He was not challenged in relation to the admissions allegedly made by the applicant. 9 In her evidence at the sentencing hearing, the applicant initially stated that she had nothing to do with the cannabis and played no part in its cultivation. She said all she knew was that her husband was possibly growing a couple of plants and that she did not know the extent of the operation until that day. But, when then asked by his Honour about the basis of her plea, the applicant conferred with her counsel and said she had, on occasions, activated the watering system in the shed from a tap outside the building and had occasionally placed plants in front of a fan. She denied that she told Detective Senior Constable Rutledge that the money was from cannabis sales. 10 The applicant was not asked about the other alleged admissions by her own counsel or by the Crown. That does not embarrass the Crown on this appeal. The applicant was on notice of Detective Senior Constable Rutledge's account of the alleged admissions. She had an opportunity to answer that account and, with the exception of the alleged admission concerning the source of the money (which she denied making), she did not. 11 In the course of her evidence, the applicant said her husband was a violent man and she was in fear of him. She cast him as the real culprit and herself as the reluctant helper. Asked why she had first denied involvement in growing the cannabis when giving her evidence, she said that was what her husband had told her to say. 12 In his remarks on sentence, his Honour said that he found the applicant's sworn testimony to be most unconvincing. He found as a fact that the applicant was well aware of the extent of the cultivation, based on her admissions to the police, and had played an active part in the sophisticated cultivation of cannabis for a commercial purpose. Having regard to the evidence to which I have referred, that finding is unassailable. 13 His Honour did not find that the applicant was principally responsible for the cannabis growing operation. He found that the applicant's de facto husband was "a well known and violent criminal" and "a violent man". He found that the applicant was "somewhat subservient to the will of her de facto". 14 There was a delay of about 4 years between the offence and the matter being listed for trial. The delay appears to have been due to the time taken for committal proceedings, which also involved the applicant's husband. (The applicant's husband was discharged at the committal hearing.) 15 The grounds of appeal are as follows.