Augustine Robert Anderson v R (No. 2) No. 4272 Judgment No. SCCRM 92/541 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4272

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), OLSSON(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - particular offences - Production of cannabis - plea of guilty - dispute as to whether production for commercial purpose - quantity inconsistent with production solely for personal use - no evidence from appellant - no other reasonable hypothesis on evidence - finding of judge that commercial purpose proved beyond reasonable doubt justified on evidence.

HRNG ADELAIDE, 15 September 1993 #DATE 18:11:1993
Counsel for appellant:     Ms M E Shaw
Solicitors for appellant:    Jon Lister
Counsel for respondent:     Ms A M Vanstone
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 KING CJ This appeal against sentence was previously the subject of a judgment of the Court of Criminal Appeal delivered on the 10th November 1992. That judgment dismissed the appeal. Subsequently an appeal to the High Court of Australia was allowed and the matter was remitted to this Court for determination of the appeal in accordance with the reasons for judgment of the High Court. 2. The issue left to this Court by the judgment of the High Court is whether the learned sentencing judge was correct in finding it proved beyond reasonable doubt that the production of cannabis which was the subject of the first count in the information to which the appellant pleaded guilty, was for a commercial purpose. In my previous reasons for judgment I indicated that I thought "that the learned judge came to the correct conclusion." By that I intended to convey that I thought that he was correct to find it proved beyond reasonable doubt that the cannabis was produced for a commercial purpose. I indicated that I had come to that conclusion "for the reasons given by Olsson J." That expression gave rise to some doubt as to my real state of mind regarding the matter and I think it is expedient therefore that I should give independent reasons for my conclusion. 3. The learned sentencing judge based his conclusion upon the quantity of cannabis plants being produced by the appellant. Those plants were growing on land adjacent to the house occupied by the appellant with two other persons at Sturt Road, Belair. When the police raided the premises they found in one clearing 32 cannabis plants which had reached an average height of 50-60 centimetres. In another clearing there were 32 cannabis plants in individual plastic pots. These were not quite as tall as the plants established in the ground. In a different part of the garden there were two larger cannabis plants both of which were healthy and approximately one metre in height. 4. The appellant told the police that he had grown the cannabis plants in order to provide himself with sufficient material for the next year's smoking. He said that he smoked cannabis with a pipe every day. The appellant did not give evidence before the sentencing judge. 5. The learned sentencing judge accepted the evidence of Mr Pearman, a forensic scientist employed at the State Forensic Science Centre. Mr Pearman estimated that the crop would have produced 3.5 kilograms of useable material. If the plants in pots were transferred to the earth and adequately watered and provided with nutrients, the yield of useable material might have been approximately 6 kilograms. A yield of 3.5 kilograms would have produced enough material for some 3,500 cannabis cigarettes while a yield of 6 kilograms would have produced sufficient material for 6,000 cigarettes. Smoked daily over a year, the lower figure would allow for 9.6 cigarettes per day and the higher figure would allow for 16.4 cigarettes per day. 6. On the basis of evidence of value from an experienced police officer which he accepted, the learned judge found that the value of 3.5 kilograms of useable material on the illicit market would have been at least $20,000. If 6 kilograms of useable material had been produced, its value on the market would have been at least $30,000. 7. His Honour concluded as follows:
    "Having weighed all of the evidence placed before me and
    made the findings which I have recorded above, I am satisfied,
    and satisfied beyond reasonable doubt, that the size and the
    value of the crop that was likely to be produced as a result of
    the defendant's efforts (if the plants grew to maturity as, no
    doubt, the defendant intended that they should) was such as to
    lead me to no other conclusion but that the defendant's
    intentions included that of selling at least a portion of his
    expected harvest." 8. I think that the size of the crop was material which was quite capable of supporting a conclusion beyond reasonable doubt that the crop was produced for a commercial purpose. The appellant did not give evidence and there was no evidence rebutting the prima facie inference. Little weight was to be attached to the appellant's self-serving out of Court statement to the police officer as to his purpose. The quantity of cannabis involved refuted, as a matter of practical common sense, the explanation given to the police that the material was for his own use. The only conceivable hypothesis other than commercial purpose, could be that some of the material was to be supplied to others on a non-commercial basis. There was no evidence of the existence of such a practice or intention. The appellant, who could have spoken of such a practice or intention if it existed, failed to give evidence and his answers to police were inconsistent with the existence of such a practice or intention. I think that the learned sentencing judge was fully justified in reaching the conclusion which he reached to the exclusion of any reasonable doubt. On the basis that the crop was produced at least in part for a commercial purpose, the sentence imposed was fully justified. 9. I would dismiss the appeal.

JUDGE2 OLSSON J I agree.

JUDGE3 MULLIGHAN J I would dismiss the appeal for the reasons expressed by the Chief Justice. In my previous reasons for judgment I said that it was not surprising that the critical issue of the intention of the appellant in producing the cannabis was decided adversely to him. In making that observation, and in expressing my reasons for it, I had regard to all of the evidence before the learned Chief Judge as well as the legal principles to which I referred. 2. In my view the evidence before the learned Chief Judge justified the conclusion that the cannabis was produced for a commercial purpose as is demonstrated by the Chief Justice. There is nothing further which I can usefully add.