STATE OF TASMANIA v TONY JOSEPH WHILEY 30 OCTOBER 2009
STATE OF TASMANIA v JENNIFER ANNE WHILEY
COMMENTS ON PASSING SENTENCE PORTER J
Mrs Whiley and Mr Whiley are mother and son. Each are to be sentenced having been found guilty by a jury of possessing a controlled substance. The case against each was quite different. Mr Whiley was found in possession of eight plants in a very sophisticated hidden and alarmed hydroponic system in his shed. Mrs Whiley lived not far away. Mr Whiley was responsible for another similar set-up involving 12 plants in the garage at his mother's home. Mr Whiley persuaded the jury that he did not intend that any part of this crop be sold. The case against Mrs Whiley was that she knowingly provided the use of the shed to allow part of Mr Whiley's activities to occur.
Mr Whiley is 36 years old and in a stable relationship. He has a young child of a previous relationship, that child's mother living interstate. He has been going through a traumatic period with his daughter, she having been diagnosed with cancer and undergoing chemotherapy. She is presently in remission. As a consequence of this emotional turmoil, it is said that he frequently used cannabis in order to relax. In order to avoid difficulties with supply, he decided to grow his own. This, it must be said, he did in a very carefully planned and assiduous manner. He has a good industrial record with long term employment with the same organisation and has recently been promoted. He and his present partner are financially secure. He has relevant prior convictions in the form of two counts of possession in 1991 which, of course, are of some age, but more relevantly has convictions for a number of drug offences, including cultivating a controlled plant, in November 2003. He was fined on that occasion but obviously failed to heed the warning.
There is a dispute about the health of the crop. The buds of the plant are the most sought after part. The accused said that the plants would not properly go into the budding process, and that he sought replacements. There was evidence of his possession of 19 seedlings which had been taken to his mother's house. Sgt Flude said that on the basis of looking at the photographs, he thought the plants were in the early stages of bud formation. The two statements are not irreconcilable in my view, but even giving the accused the benefit of the doubt does not alter much in terms of the approach to penalty. That is because I am dealing the simple fact of possession of live plants intended for personal use, and that even the leaf material is useable.
Mrs Whiley is a 64 year old pensioner. She has no relevant prior convictions and is generally of good character. She lost her husband and the father of the accused Mr Whiley, early on in the marriage and she has worked hard to raise her two children. She has health difficulties. Mr Whiley had use of the shed for some time and he pressured his mother to allow him to grow cannabis in it. She eventually gave in, the reason for which was given simply as love and affection for him. Her premises were the subject of a police search in daylight and she found that stressful and embarrassing.
As to Mr Whiley, obviously personal deterrence is a weighty factor. In evidence, he said that the starting point for the hydroponic system at his home was the equipment which he had used previously and which led to his previous drug-related court appearance. In the circumstances I think it is appropriate that he be sentenced to a short term of imprisonment, the execution of which will be suspended on conditions, and that this be coupled with a fine, so that there is some more immediate impact as well. Mr Whiley, you are convicted and sentenced to two months' imprisonment, the execution of which is wholly suspended on condition that you commit no offence under the Misuse of Drugs Act for three years. You are also fined the sum of $1,000.
As to Mrs Whiley, I am persuaded that given her age and the circumstances of the offending which include of course her relationship with the other accused, it is not appropriate to impose any immediate penalty. Mrs Whiley, without recording a conviction, I adjourn the proceedings for 18 months and upon you giving an undertaking not to commit any offence under the Misuse of Drugs Act during that period, I order your release.
I make a forfeiture order in respect of those items seized by police and listed in Drug Exhibit Sheet No 210014-08. Each accused will have to pay the victims of crime compensation levy of $50 within 28 days.