Paul Ainsworth Gibson No. DCCRM-01-1371

[2002] SADC 48

R V PAUL AINSWORTH GIBSON
[2002] SADC 48

Judge Bishop
Criminal

Reasons (ex tempore) for decision

Paul Ainsworth Gibson (“the prisoner”) has been committed for sentence for having knowingly produced cannabis, a prohibited substance, that production exceeding 19 plants, namely 33 plants, on 25 February 2001 at O’Sullivan Beach, contrary to section 32(1)(a) of the Controlled Substances Act (“the Act”). There was a dispute as to the basis upon which the prisoner should be sentenced.

Ms Billich, counsel for the Crown, contended and sought to establish beyond reasonable doubt, as a matter of aggravation, that the production was partly for a commercial purpose, section 44(d) of the Act providing that, in determining penalty, the court shall take into account, inter alia, “the commercial or other motives of the convicted person in committing the offence.” (In that regard, Anderson v The Queen (1993) 117 ALR 1 is in point.)

Ms Forde, counsel for the prisoner, indicated that any such commercial purpose of production was denied. She accepted the persuasive onus reposed upon the prisoner, pursuant to section 32(6), of persuading the court that the production was solely for the prisoner’s own smoking or consumption.

In sentencing offenders for having produced cannabis, the two most important factors to be taken into account are the size of the likely harvest and the use to which that harvest is to be put (see TheQueen v Carbone (1984) 36 SASR 306, at 307 to 308). As White J there observed, the main purpose in concentrating upon the size of the likely harvest is that it gives some reasonable indication of the real nature of the offending, as well as the outcome and purpose of the venture.

From the papers which have been presented, it appears that, when police attended at the prisoner’s residence on 25 February 2001, they located 31 cannabis plants growing outside the bedroom occupied by the prisoner and his wife. Thirty were growing in the ground, in rows, and one was growing in a pot. Those plants ranged in height from 10 to 30 cm. In a cupboard, in another bedroom, they also located 23 cannabis cuttings growing in three trays with rock-wool and a light. Those cuttings were about 10 cm in height, two showing early signs of root development. (Thirty one in the ground and two in the trays showing root development gave the total of 33 plants with which the prisoner is here charged.) Upon subsequent examination, 10 of the 31 growing plants were found to contain female flowering heads. (The growing plants are depicted in photographs 17 to 19, after their removal from the ground.)

When spoken to by the police, the prisoner said that he had just thrown seeds out and ‘away they went’. He acknowledged that they were in two distinct rows. He said that he was not aware how many plants were there; he thought there were fewer plants, 17 he thought. He said that the plants were for his personal use and that he smoked more than one and a half grams each day; that is, he said, between 15 and 20 bongs a day. Smoking implements were found in his residence. He said that he was not cultivating the plants for sale; that plants had begun to flower; and that he was cultivating for the flowers. When planting them, he had not expected them to come up but, when they did, ‘he let them go’. He said that he intended to cull the majority of the plants (90 per cent he said) because they were crowded. (That can be seen in photographs 4 and 5.)

The police put to him that he had taken cuttings from one of the more mature plants which was starting to flower. He said that he had put those cuttings into rock-wool to propagate, as replacements for plants which would have been culled, and as a back-up against theft. His response to having taken cuttings from a plant which was starting to flower was not a clear acknowledgment. (His response was simply, ‘Um’.) He said that his wife was unaware of the cultivation; and that he had written on the three containers the words ‘Jack’, ‘Jungel’ and ‘Unknown 2’, ‘just doodling’. He said that he believed he could legally grow any quantity of cannabis. (That assertion he has here admitted was inaccurate. He is aware, and was aware, that the cultivation of cannabis is illegal.) He said he was going to keep whatever decent flowers resulted from the cultivation; that he had never grown cannabis before; and that he normally smoked a couple of ounces a week, at the cost of about $100.

In evidence, the prisoner confirmed that he has been smoking between a half and one gram of cannabis daily for about 15 years; that he only smokes female flowering heads; that his wife does not smoke and was not happy about him smoking; that his purpose in growing this cannabis, from just before Christmas, was to relieve the associated financial burden and to obtain cannabis only for his own consumption; and that the words on the plastic trays referred to jigsaw puzzle pieces, which he had omitted to tell the police. He said that he intended to cull the male plants and retain only the female plants.

Upon his presentation as a witness, I found the prisoner to be quite frank, notwithstanding his indication that, in some respects, he had not been frank with the police. I am satisfied that culling had not occurred, but that it was intended and, indeed, would have occurred. I am satisfied that the likely harvest would have been small. I am not persuaded that his evidence should not here be accepted or that he should not be given the benefit of a reasonable doubt. There is here no evidence suggestive of any commercial dealing in cannabis, although, as Ms Billich remarked, there is the number of growing plants.

Having regard to all of the evidence presented, I am not satisfied that the Crown has established, beyond reasonable doubt, that this production, either wholly or in part, was for a commercial purpose or that, in the words of section 44(d), the prisoner had a commercial motive in committing this offence. His motive, I am satisfied, was to produce the cannabis only for his own personal consumption. Upon that basis, he will be sentenced.