Re Janet Dilyse Hughes; Mark Curtis v R [1983] FCA 149 (21 July 1983)

FEDERAL COURT OF AUSTRALIA

Re: JANET DILYSE HUGHES; MARK CURTIS
And: THE QUEEN
Nos. ACT G11 and G12 of 1983
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop J.
Sheppard J.
Morling J.

CATCHWORDS

Criminal Law - Appeals against convictions and sentences - Poisons and narcotic Drugs Ordinance 1978, s.4(3) - Onus of proof - meaning of "unless the contrary is proved" - possession of growing plants for the purpose of supply.

Severity of sentence - circumstances in which appellate court will interfere.

HEARING

CANBERRA
21:7:1983

ORDER

1. Both appeals be dismissed.

DECISION

These appeals were heard on 17 and 18 May 1983. Rather than delay our judgment in the matter we dismissed both appeals and intimated that we would deliver our reasons later. We now publish those reasons.

On 8 February 1983 the two appellants were arraigned before the Chief Justice of the Supreme Court of the Australian Capital Territory and a jury on separate charges of being in possession of a controlled substance, to wit, cannabis for the purpose of supplying the substance to another person contrary to s.4 (3) of the Poisons and Narcotic Drugs Ordinance 1978 and, in the case of the appellant Curtis, on a further charge of supplying a controlled substance to wit cannabis to another person contrary to s.4(2) of the Ordinance. To each count in the indictment the accused respectively pleaded not guilty.

At the end of the Crown opening counsel for the appellant Curtis applied for a discharge of the jury which was refused. The Crown then applied to amend the three counts in the indictment and the learned trial Judge ordered that each count be amended by the addition of the words "or to other persons" to the end of the count. The trial of both appellants then proceeded on 8, 9, 10 and 11 February 1983 when the jury returned a verdict of guilty against the appellant Curtis of the offence of being in possession of a controlled substance to wit cannabis for the purpose of supplying the said substance to another person or persons and a verdict of not guilty of the offence of supplying a controlled substance to wit cannabis to another person or other persons, and a verdict of guilty against the appellant Hughes of the offence of being in possession of a controlled substance to wit cannabis for the purposes of supplying the said substance to another person or other persons.

After receiving evidence relevant to the question of penalty, on 3 March 1983 the Chief Justice sentenced the appellant Curtis to imprisonment for two years with a non-parole period of one year and sentenced the appellant Hughes to imprisonment for one year with a non-parole period of 6 months. Both appellants appealed to this Court against their convictions and the severity of the sentences imposed pursuant to Part III, Division 2 of the Federal Court of Australia Act 1976. By consent both appeals were heard together.

For the purposes of the appeals the Crown supplied the court with a resume of facts which were established at the trial relevant to the circumstances of the offences committed by each accused and short details of their antecedents. It was agreed on the hearing of the appeals that this material conveniently set out the relevant matters, which were:

"FACTS

(1) Janet Dilyse Hughes was the registered proprietor of land known as 77 Piddington Street, Watson in the Australian Capital Territory. She had lived at that address since the winter of 1980, together with Mark Curtis. Curtis and Hughes previously lived in a de facto marriage relationship but at the time of their arrest they occupied separate bedrooms and Curtis paid rent to Hughes as well as undertaking the maintenance of the house.

(2) On 5 February 1982 police, attached to the Drug Squad, went to 77 Piddington Street. Present at that time were Hughes and Curtis. A search of the premises revealed:-

(i) 450 cannabis plants growing in the rear yard. The plants ranged in height from 1 foot to 7 feet.

(ii) The rear yard was surrounded by a tall paling fence, in front of the fence were a number of trees and tall shrubs. About 3 feet in from the fence was a makeshift fence consisting of shade cloth, wire and dried tree branches. The shade cloth was positioned on the wire in such a way as to mask the growing cannabis plants.

(iii) The rear yard was well manured and a drip watering system extended throughout the rear yard.

(iv) Inside a garage/shed at the side rear of the house was located a wire on which were strung pieces of dried or drying cannabis. The total weight of the cannabis on the wire was 409 gramms (Exhibit D).

(v) In Curtis' bedroom was located a Dairy Whip box containing cannabis and a small plastic container also containing cannabis. The combined weight of the cannabis in the two containers was 214 gramms (Exhibit A).
(vi) In the laundry was a small paper bag containing cannabis and a Woolworth grocery bag containing cannabis. The combined weight of the two containers was 221 grams (Exhibit B).

(vii) On the rear verandah was located a Woolworth grocery bag containing cannabis weighing 273 grams (Exhibit C).

(viii) In the garage/shed were two Woolworth bags containing cannabis, weighing 2,354 grams (Exhibit F).

(x) In a drawer in Hughes bedroom was located a small pipe. Further smoking implements were located in other areas of the house.

(xi) In a greenhouse at the back of the premises were located a number of punnets containing cannabis plants.

(3) When questioned by police at the Piddington Street premises, Curtis claimed that he owned the Cannabis plants in the yard and took full responsibility for them. (Page 4 Appeal Book) In a further conversation with Sergeant Lewis at the premises Curtis was asked:-

"What do you intend to do with the cannabis?"
Curtis replied, "I mulch it back into the ground for fertilizer."

Lewis asked: "Why do you dry the cannabis?"
Curtis replied: "I have been carrying out tests on it . . . scientific tests."

Lewis asked: "Are you supplying cannabis to other people?"
Curtis replied: "If some friends come around and want a smoke I give it to them." (Page 13 Appeal Book).

(4) Curtis gave evidence at his trial and claimed that the cannabis at the Piddington Street premises was his and for his own personal use.

(5) When questioned by police at the Piddington Street premises Hughes was asked: "Did you have anything to do with the cannabis out there?" Hughes replied: "I have never concerned myself with it."

She was then asked: "Did you know it was there?", to which she replied: "Of course I did."

She was asked: "Did you have anything to do with its upkeep," and her reply was, "Not really, I only just watered it sometimes."

She was asked: "Who owns them (plants in backyard)?" to which she replied, "I don't really know." (Page 38 Appeal Book).

(6) Hughes gave evidence at her trial and claimed that she was unaware that cannabis was growing in the backyard and unaware that there was cannabis in the house. She claimed that the garden was Curtis responsibility and that she rarely, if ever, went there.

OBJECTIVE FACTORS

Curtis

Curtis was born on 2nd October 1941 (age 41) in New Zealand. He came to Australia in 1967 after separating from his wife from whom he is now divorced. By occupation, Curtis was a draughtsman, which occupation he continued after arrival in Australia. He moved to Canberra in 1980 and has not been employed since. In giving evidence after conviction, Curtis claimed to have used cannabis since about 1970 when he commenced using it to alleviate pain following a motor vehicle accident. (Appeal Book page 188/189) Curtis has one prior conviction for prescribed concentration of alcohol recorded at Sydney Court of Petty Sessions on 3 May 1973. Curtis was on bail prior to the date of sentence.

Hughes
Hughes was born on 19 July 1953 (aged 29) at Sydney. She obtained a Bachelor of Science degree from the University of New South Wales in 1978. She moved to Canberra in 1979 and obtained employment as a consultant chemist with the Commonwealth Government. At the time of her arrest she was attending the Canberra College of Advanced Education where she obtained a Diploma in Materials Conservation at the end of 1982. In the Christmas vacation of 1981/82 she obtained casual employment in the field of materials conservation.

Hughes has never been married although she had a de facto relationship with Curtis which ended prior to 1982, although they still continued to live in the same house. Hughes has one prior conviction for larceny (shoplifting) recorded at Central Court of Petty Sessions on 4 October 1972. Hughes was on bail prior to the date of sentence."

The grounds of appeal relied upon by the appellant Curtis were:

(1) that the learned judge erred in law in holding that the plants of the genus cannabis are while growing, capable of being possessed;

(2) that the learned judge further erred in law in allowing the indictment to be amended;

(5) that the learned judge further erred in law in his direction to the jury as to the onus and the nature of the onus borne by the appellant;

(6) that the sentence imposed was manifestly excessive. There were other grounds set out in the notice of appeal but they were not argued.

In order that the submissions advanced in support of these grounds may be understood, it is necessary to refer to the relevant provisions of the Ordinance. Sub-sections (1), (2), (3) and (4) of s.4 thereof are as follows:

"4.(1) In this section, 'controlled substance' means a substance that is a Schedule 8 substance or a Schedule 12 substance.

(2) A person who supplies a controlled substance to another person is guilty of an offence.

(3) A person who has a controlled substance in his possession for the purpose of supplying the substance to another person or to other persons is guilty of an offence.

(4) In proceedings for an offence against sub-section (3), a person who has in his possession a quantity of a controlled substance, being a quantity that exceeds the prescribed traffickable quantity for that substance, shall, unless the contrary is proved or the person proves that he had lawful authority to have the substance in his possession, be taken to have the substance in his possession for the purpose of supplying the substance to another person or to other persons."

Sub-section 3(1) defines various substances. We refer to the definitions of "cannabis", "cannabis fibre" and "cannabis resin", which are as follows:

"'cannabis' means a cannabis plant, whether living or dead, and includes, in any form, any flowering or fruiting tops, leaves, seeds, stalks or any other part of a cannabis plant or cannabis plants and any mixture of parts of a cannabis plant or cannabis plants, but does not include cannabis resin or cannabis fibre;"

"'cannabis fibre' means goods that consist wholly or substantially of fibre obtained from a cannabis plant or cannabis plants but do not contain any other substance or thing obtained from a cannabis plant;"

"'cannabis resin' means a substance that consists wholly or substantially of resin (whether crude, purified or in any other form) obtained from a cannabis plant or cannabis plants;".

Sub-section 3(1) also defines "scheduled substance". It means a substance that is specified in a schedule to the Ordinance. Sub-section 3(6) of the Ordinance provides that a reference in the Ordinance to a prescribed traffickable quantity for a Schedule 12 substance is a reference to a quantity of the substance having a mass equal to the mass specified in Column 2 of Schedule 9 opposite to the reference to that substance in Column 1 of Schedule 9.

Cannabis and cannabis resin are Schedule 12 substances. By Schedule 9 the prescribed traffickable quantity of cannabis is one hundred grams. It is unnecessary to refer to the prescribed traffickable quantity of cannabis resin.

In support of the first ground of appeal counsel submitted, notwithstanding the terms of the definition of "cannabis" in sub-s.3(1) that it means, inter alia, a cannabis plant, whether living or dead, that it did not apply, where used in s.4, in the case of growing cannabis plants. Counsel's argument was based on the exclusion from the definition of "cannabis resin" and "cannabis fibre" which are substances substantially of fibre or substantially of resin, as the case may be. He contended that a growing plant must include both fibre and resin.

Counsel was driven to submit that the relevant expressions were not used in their defined senses. We rejected the submission because there is no warrant for taking that view. There are positive reasons why we drew the opposite conclusion. Firstly, counsel needed to refer to the definition of "cannabis" in order to exclude "resin" and "fibre". Thus his argument involved the application of one part of it but not the other. Secondly, construing the expressions in s.4 in their defined sense gives the section a sensible operation. A growing plant, which no doubt does include fibre and resin, will be cannabis. But goods which are purely fibre or purely resin will not. To adopt the construction advocated by counsel would be to make nonsense of the provision. For the above reasons we did not uphold the first ground of appeal.

With regard to the second ground of appeal, it should first be mentioned that the application to discharge the jury after the opening was made because the indictment originally charged each of the offences as if there were involved possession for the purpose of supply or actual supply to one other person. The words "another person" were used. In his opening counsel for the Crown had outlined a case in which it would be established that there was possession for supply or actual supply to one or more persons. It was in these circumstances that the learned Chief Justice rejected the application to discharge the jury and permitted the amendment of each count in the indictment. The words "or other persons" were added at the end of each. That is how they were left to the jury. It is to be observed that each charge was then in complete conformity with the words of the sub-section upon which it was based.

But counsel contended that the effect of the amendment was to make each count bad for duplicity. An indictment may include one or more counts, but each count must allege the commission of a distinct and separate crime. Only one offence may be charged in each count (R. v. Molloy (1921) 2 K.B. 364 and R. v. West (1948) 1 K.B. 709).

The question of whether an indictment charges one offence or two sometimes gives rise to a difficult question of construction. The fact that the charge is laid in accordance with the words of a provision such as sub-s.4(3) of the Ordinance here is not determinative of it. Nor is the use in such a provision of the disjunctive "or". In Re McLennan, ex p. Polley (1947) 47 S.R.(N.S.W.) 391 Jordan C.J. said (p.392):

"The question whether an enactment creates one offence or several depends upon its subject matter and language considered in the context.
. . .
But the mere use of the word 'or' does not show that it is intended to create two offences. It may sufficiently appear that it is intended to create only one offence of a particular type and to supply one or more instances. Thus, where a statute prohibited a person from having a certain class of things in his possession or control, the essence of the offence so created was regarded by one learned judge as having the things in one's control, possession being instanced as a form of control, and by another learned judge as having the things, possession and control being instanced as modes of having: Hedberg v. Woodhall ((1913) [1913] HCA 2; 15 C.L.R. 531). Where a statute made it an offence to be in charge of a motor vehicle whilst under the influence of drink or a drug, to such an extent as to be incapable of having proper control of it, it was held that there was here only one offence, that of being in charge whilst incapable, drink or drugs being instanced as causes of incapacity: Thomson v. Knights ((1947) 1 All E.R. 112)."

In Montgomery v. Stewart [1967] HCA 11; (1967) 40 A.L.J.R. 534 the Court was concerned with s.43 of the Companies Act 1958 (Vic.) which provided that where in a prospectus "there is any untrue statement or wilful non-disclosure any person who authorized the issue of the prospectus shall be guilty of an offence". It was held that where a prospectus authorized to be issued by an accused person contained more than one untrue statement or wilful non-disclosure there was a single offence, not a multiplicity of offences. Taylor J. (p.537) said that the gist of the offence was the authorizing of the issue of a prospectus which contained "any untrue statement or statements". Menzies J. said (p.538):

"The question which has arisen is whether there is one offence, or a multiplicity of offences, when a prospectus of which an accused person has authorized the issue contains more than one untrue statement or wilful non-disclosure. The Full Court of the Supreme Court of Victoria decided that in such circumstances there was but one offence, and I have come to the conclusion that this decision is correct. My reasons for this conclusion can be stated shortly.
The offence is not making an untrue statement or statements, or wilfully not disclosing what ought to have been disclosed in a prospectus. The statement or non-disclosure which renders punishable the authority to issue a prospectus may be that of some person other than the one who gave that authority - for example, it might appear in the report of an auditor. It is clear, therefore, that the substance of the offence is to be found in giving authority to issue a prospectus containing an untrue statement or a wilful non-disclosure, not in making the statement or in not making the disclosure. The giving of authority is, of course, a single act and the character of the act does not depend in any way upon, or vary with, the number of untrue statements or wilful non-disclosures to be found in the prospectus. Prima facie, therefore, the offence is the same regardless of how many untrue statements or wilful non-disclosures there may be."

His Honour went on to consider other provisions of the legislation to see whether his prima facie view should be displaced. His conclusion was that it should not.

We refer also to the decision of the Supreme Court of Western Australia in Reynolds v. Plummer (1977) W.A.R. 33.

It is to be observed that Taylor and Menzies JJ. in Montgomery's case refer to the gist or substance of the offence. The gist of the offence here is the having in possession of the controlled substance for the purpose of supply to others. In essence what is involved is supply of a controlled substance to another or others. The reason for the use of the singular in the provision, along with the plural, is to make it clear that the offence will be committed whether the purpose is supply to one or to more than one. But the essential thing which the legislature intends to prohibit is having a controlled substance in possession for the purpose of supply of the substance to anyone. For that reason each amended count in the indictment charged only one offence. The indictment was not bad for duplicity. On this basis the second ground of appeal was rejected.

The first submission made in relation to the next ground of appeal, which concerns the onus of proof borne by the appellant under sub-s.4(4) of the Ordinance, is not really connected with the onus of proof. Rather it was a submission of substance going to the way the Crown had sought to prove its case. The Crown relied on evidence to establish positively that the appellants each had possession of cannabis for the purpose of supply to others. Alternatively it relied on the evidence of the total quantity of cannabis found in the house and garden in order to establish that each appellant had possession of more than one hundred grams of it. Reliance was then placed upon the presumption provided for in sub-s.4(4).

The evidence earlier summarized was clearly capable of establishing that each appellant had in his or her possession more than one hundred grams of cannabis. If the jury accepted that evidence, the presumption would arise and it would be, subject to a further submission with which we have yet to deal, for each appellant to discharge the onus of proof provided for in the sub-section; otherwise the presumption would not be rebutted.

The case was left to the jury in this alternative way.

The essence of the submission was that the Crown had to elect whether it would rely on evidence of possession for the purpose of supply independently of reliance upon the presumption, or upon the presumption. The Crown was not, so it was submitted, entitled to have it both ways. No authority for this proposition was cited except Adelaide Steamship Co. v. The King [1912] HCA 58; (1912) 15 C.L.R. 65 at p.102. It was there decided that if a prosecutor relied on averments of fact pursuant to a statutory entitlement so to do, he was not also entitled to put the actual facts of the case before the court. We refer also to Symons v. Schiffmann [1915] HCA 65; (1915) 20 C.L.R. 277 at p.281.

This is not an averment case. It is a case where there is a statutory presumption intended to facilitate proof of the relevant purpose. We know of no case in which it has been held that a party bearing the onus of proof may not rely on a presumption and upon actual evidence tending to establish the fact to be proved. We therefore rejected the submission. In passing we note that the course adopted by the Chief Justice was in accordance with the view he expressed, as a member of the Full Court of this Court, in Foster v. The Queen [1982] FCA 2; (1982) 38 A.L.R. 599 at p.607.

Then it was submitted - and this submission was also relied upon by counsel for the appellant Hughes - that his Honour's directions as to the onus of proof cast on an accused person by sub-s.4(4) misunderstood the meaning of the words, "unless the contrary is proved". It was submitted that an accused might establish the contrary and thus discharge the onus of proof resting on him, if he showed that, of a quantity of a controlled substance amounting to more than the prescribed traffickable quantity, part was not for supply because it was for his own use. The contrary, so it was said, would have been proved.

We rejected this submission for the following reasons. The ordinary dictionary definition of "contrary" is "the opposite"; that is the meaning which the word has here. Thus the accused is deemed to have the substance for supply unless he proves the opposite. He will not do so by establishing that part only was not for supply. Proof that that is so is not proof of the contrary or opposite of what the presumption involves, namely that the whole is for supply.

We were reinforced in our conclusion by the consideration that it is an offence under sub-s.4(3) to have any quantity of a prohibited substance in one's possession for supply. It is immaterial that the amount may not exceed the prescribed traffickable quantity. But if it does not, the presumption provided for in sub-s.4(4) will not arise. Where the amount does exceed the prescribed quantity, the presumption will arise. Unless the accused discharges the onus as to the entirety of the substance in his possession, he will be deemed to have at least some of it in his possession for the purpose of supply. That, so it seemed to us, was plainly the intention of the legislation.

The final submission made on behalf of the appellant Curtis was that sub-s.4(4) did not cast an onus on the accused. Our attention was directed to the use of the passive voice in the expression, "unless the contrary is proved", and the use of the active voice in what immediately follows, "or the person proves that he had lawful authority . . . ". We agree that there is no apparent reason associated with the drafting of the sub-section which accounts for this change in expression. But the section contemplates proof of the relevant fact by someone. That person cannot be the Crown; that would make no sense at all. It must follow that the onus is on the accused. This was the view of Ellicott J. in Foster's case (supra at p.612) with which we are in respectful agreement.

That concludes our treatment of the submissions made on behalf of the appellant Curtis that his conviction should be set aside. Counsel for the appellant Hughes, in addition to relying upon the submission already disposed of concerned with the meaning of sub-s.4(4), relied on two further grounds of appeal. These were:

(1) that the learned trial judge erred or wrongly exercised his discretion in failing to answer each of the questions asked by the jury as to the effect in law of knowledge and acquiescence in possession by another with an unqualified "No";

(2) that the learned trial judge erred in failing to direct the jury that if they found that the appellant knew of the presence of the controlled substance in or upon premises owned by her but that the same belonged to and was controlled in fact, by another person, then she was not relevantly in possession of such controlled substance.

In order that the first of these grounds may be understood it is necessary to set out the questions to which it refers and his Honour's answers to them. The questions were:

(1) Does knowledge and the subsequent inaction or silence by one person - owner - constitute possession?

(2) Does the continuing of an action or actions which leads to the growing and harvesting of cannabis constitute possession?

(3) Redefine the term possession.
After hearing submissions from all counsel his Honour answered the first question "By itself, no", and as to the second and third questions, said:

"You have asked in the second question, 'Does the condoning of an action or actions which leads to the growing and harvesting of cannabis constitute possession?' I am not sure that I really understand what that question means. I think I had better redefine possession for you, and it may be that will answer the second question.

Possession, for your purposes, means all of the following. It means knowledge of what it is that is possessed, knowledge that it is there, and knowledge of what it is. And it means physical control and the power and intention to exercise physical control to the exclusion of anybody whom you may want to exclude. And that possession may be in one person or it may be shared by more than one person.

I think that really answers the second question, because, if what you have got in mind does not come within the definition I have just given you, then, for practical purposes, for your purposes - it is not possession."

A number of submissions were made by counsel for the appellant Hughes in support of these grounds. Counsel developed them by embarking upon a lengthy review of his Honour's summing up and also referred to the essential features of the evidence.

His first submission was that there was no evidence capable of establishing that his client was in possession of cannabis. We rejected this submission. The resume of the evidence earlier set out shows that there was ample evidence upon which the jury could have concluded that the appellant Hughes had possession. We refer particularly to her statement to police officers in which she admitted to knowing the plants were growing in the back garden and to watering them. Furthermore, cannabis was found in a number of parts of the house as well as in the garage and back garden.

Counsel's next submission is summarized in the second of the grounds earlier set out. Subject to one qualification, the ground correctly states the law. The qualification is that the word "exclusively" needs to be understood as being inserted before the word "control". If Curtis had exclusive control over the cannabis, the appellant Hughes did not have possession of it. A reading of all that the learned Chief Justice said in his summing up and later remarks to the jury discloses that he did leave the case in this way. But he was concerned, correctly in our opinion, to explain to the jury that control, and thus possession, might be joint. If it were, it would not be right to say that the appellant Hughes did not have control. The jury must be assumed to have found, as they were entitled to do, that the possession was joint. In our opinion there was no misdirection by his Honour. This ground of appeal accordingly failed.

The final submission was based on the way his Honour answered the jury's questions. The questions and his Honour's answers have been earlier set out.

It was said that, although the trial Judge accurately stated the law in his answers to the jury's questions, he failed to explain to the jury how the law would operate in the event that they found, in relation to the appellant Hughes, the facts which the jury's first and second questions seemed to embrace. Those facts were said to be Hughes' ownership and occupation of the subject premises, her knowledge of the growing and harvesting of cannabis on those premises and her condonation, by inaction and silence, of the actions of the other appellant.

We carefully considered this ground of appeal and the submissions of counsel at the trial concerning the way in which the questions asked by the jury ought to have been answered by the trial judge. Part of the submissions then made by counsel for the appellant Hughes at the trial was that his Honour should direct the jury in the same terms as he had done in relation to the element of possession in his original charge. His Honour did in fact answer the jury's questions in that way. He was entitled to do so and we can see no ground for any argument that it was inappropriate to do so. It is not incumbent upon a trial judge in answering a jury's question to tell the jury whether a particular set of facts, if they find those facts, amounts to possession. It was sufficient to repeat what his Honour had earlier said about possession and to leave it to the jury, as his Honour did, to determine whether the facts which they found constituted possession or not. For these reasons we rejected the submissions made on behalf of the appellant Hughes concerning this ground of appeal.

We turn to the appeals against sentence by each appellant. Before dealing with his Honour's remarks at the time of passing sentence, it is necessary to return to the facts of the offences which must implicitly have been found by the jury in their verdicts.

In addition to the facts proved in evidence before the jury and recited in the resume of facts at the commencement of these reasons, there was evidence of other conversations between a police officer and the appellant Hughes in which the appellant gave answers tending to negative the element of possession of the cannabis. They show her to have been evasive in answering police questions. There were, for instance, the following questions concerning the occupation and ownership of the premises by Hughes.

Q. "Do you live here?"
A. "Occasionally, I am at the moment."
Q. "Do you have an address elsewhere?"
A. "I don't really know."
Q. "Is this your permanent residence then?"
A. "Well not really."
Q. "What is your relationship with Mr Curtis?"
A. "He's just a friend. We just live here."
Q. "Who owns the house?"
A. "I don't really know I am not here that much."
Q. "How long have you been living here now?"
A. "On this occasion for the past 15 months."
Q. "As you can see there is a large amount of cannabis growing in the back garden. What can you tell me about it?"
A. "Nothing really, it is cannabis, I suppose." After the appellant had been arrested and charged there was a further conversation concerning a house payment book located in her personal items. The following conversation took place:
Q. "Is this your payment book?"
A. "Yes."
Q. "You are buying this house then?"
A. "Yes."
Q. "Why didn't you tell me this when I asked you earlier?"
A. "You did not ask me."
Q. "Are you buying this house alone or are you buying it with someone else?"
A. "Well myself. I don't want to say anything else."

His Honour also had evidence of the antecedents of both accused, character evidence and submissions of counsel on the question of sentence.

The principles upon which a Court, in the exercise of its appellate jurisdiction with respect to a discretionary sentence, will exercise that jurisdiction were expressed in Harris v. The Queen [1954] HCA 51; (1954) 90 C.L.R. 652 and have been followed by this Court in Kovac v. The Queen (1977) 15 A.L.R. 637; Channon v. R. (1978) 20 A.L.R. 1; R. v. Prindable (1979) 23 A.L.R. 665; R. v. Tait and Bartley (1979) 24 A.L.R. 473 at 476; R. v. Valentini and Garvie (1980) 2 A. Crim. R.; R. v. Davey [1980] FCA 134; (1980) 2 A. Crim. R. 254 and R. v. J., unreported decision of the Federal Court delivered 10 November 1982.

For the purposes of sentencing the trial judge had to form his own view as to the circumstances of the offence consistent with and within the ambit of the jury's verdict. We respectfully agree with the following statement of the law by the Full Court of the Supreme Court of Victoria in Reg. v. Harris (1961) V.R. 326:

"The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts . . . . He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgment of the seriousness or other character of the offence."

Although his Honour did not say so in passing sentence he must have acted upon the facts of the offence proved in evidence by the Crown to the jury's satisfaction together with the personal particulars relating to the appellant. Likewise he must have acted upon the facts proved in evidence against the appellant Hughes together with the personal particulars relating to her, including the evidence of good character and the impact of a gaol sentence upon her prospective career. His Honour was careful to distinguish as between the two appellants their respective complicity in the cannabis growing enterprise at the home at which they both lived. In our opinion there is no warrant for the view that the sentences imposed in each case were otherwise than in accordance with the sound exercise of the sentencing discretion.

Accordingly we dismissed both appeals.