R v Apostolides (No 2) - [2008] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v APOSTOLIDES (No 2)
[2008] SADC 94
Reasons for Ruling of His Honour Judge Beazley
22 July 2008
CRIMINAL LAW
Defendant pleaded guilty to one count of producing cannabis - 22 plants in three stages of development hydroponically grown in defendant's home - whether plants grown for a commercial purpose - prosecution alleges that plants grown for commercial purpose - aggravating factor must be proved beyond reasonable doubt.
Held: commerciality not proved beyond reasonable doubt.
Controlled Substances Act 1984 ss 32(1)(a) and 44, referred to.
R v Anderson (1993) 177 CLR 520 at 536; R v Ninnes [2007] SASC 40, considered.

R v APOSTOLIDES (No 2)
[2008] SADC 94
Introduction

The defendant Paul Anthony Apostolides has pleaded guilty to one count of producing cannabis contrary to s32(1)(a) of the Controlled Substances Act 1984 (the Act). I had previously conducted a disputed facts hearing regarding the number of cannabis plants grown by the defendant. I was satisfied beyond reasonable doubt that the defendant had produced 22 cannabis plants, and in consequence thereof, his offending fell within the penalty regime in section 32(B)(a)(ii) of the Act. See R v Apostolides (No1) (2008) SADC 28.
It is the prosecution case that those plants were grown for a commercial purpose. The defendant denies that allegation contending that the plants were grown by him for his personal consumption.
In R vAnderson (1993) 177 CLR 520, at 536 the High Court said:
If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia, is of the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that the circumstances of aggravation has not been shown to exist.
Commercial intent is an aggravating factor in offences committed contrary to the Act. Accordingly the prosecution must prove commerciality beyond reasonable doubt. See R v Ninnes [2007] SASC 40.
The alleged commerciality is a matter of significance in respect of penalty. Section 44(d)(i) of the Act requires the court to consider “the commercial or other motives of the convicted person in committing the offence”. It was somewhat unfortunate that this issue was not raised by the prosecution at the time of the earlier disputed facts hearing. Notwithstanding that unfortunate oversight, I concluded that I ought conduct a further disputed facts hearing to determine the issue of commercial intent.
Background
On 6 July 2006 police attended the defendant’s residence at Clearview where they located six cannabis plants, each about one metre in size, in a bedroom which was described in the evidence as “the growing room”. They also located five smaller plants about 40cm in size, located in a shed at the rear of the defendant’s premises. Finally, in the kitchen they located 11 extremely small plants in cubes in a propagation box. As to the last mentioned plants, which were each less than 20cms in size, I had previously found them to constitute “cannabis plants”, because they had established roots. On any view, they were extremely small and immature.
The Evidence
(a) The prosecution case
All of the declarations were tendered by consent. There was no dispute as to the broad facts contained in those declarations, and accordingly none of those who prepared declarations were called to give oral evidence. In addition the prosecution tendered a bundle of 40 photographs, taken at the time of the police attendance on 6 July 2006. While there was no dispute about the facts in the declarations, the respective counsel submitted that quite opposing inferences ought be drawn from those facts.
Mr Trevarrow, Counsel for the Director of Public Prosecutions, concentrated upon the evidence contained in the declarations of Detective Brevet Sergeant Michael Ralph, and the Forensic Scientist, Ms Tanya McKew. His ultimate submission was that their evidence coupled with the photographs depicting the nature of the hydroponic set up, and the quantity and apparent quality of the cannabis plants, had established beyond reasonable doubt that the crop was not for the defendant’s own consumption.
Brevet Sgt. Ralph detailed his expertise in respect of the cultivation and trade in the sale of cannabis. His expertise was not in dispute. He confirmed that the cannabis plant is grown as a male plant and female plant, however it is the female cannabis plant which has the richer source of ‘THC’. Therefore it is common for male plants to be culled at an early stage. Brevet Sgt. Ralph expressed his opinion as to the current prices paid for cannabis generally. He did not personally inspect the cannabis material retrieved from the defendant’s house, and could give no evidence as to its quality. He gave evidence about the prices paid in the market for “female flowering head”. He described how the selling price for such material was fixed by bag size. The current selling price of cannabis was somewhere between; (a) $30 to $60 for a small sealed bag containing two to four grams; (b) $200 to $300 for a larger sandwich bag containing approximately 28gms and (c) $2200 to $3500 for a one pound bag containing approximately 454gms.
He explained that often those, who were involved in the cannabis trade, also had with them certain paraphernalia connected with that trade. By way of example he described such indicators; as unexplained wealth; large amounts of cannabis; expensive household items; sets of scales and plastic seal bags; documents with lists of purchasers or amounts of money consistent with drug dealing; and more than one mobile phone, often in false names. He said that while these are indicia of drug dealing, sometimes dealers did not have all some or even any of these indicia. By inference you may not find any of these indicia where a crop had not yet been harvested.
I accept the evidence of Brevet Sgt. Ralph on these matters.
There was no dispute as to the set up of the hydroponic equipment. In appendix A to the declaration of Sergeant Kelly Clarke, it is apparent that the equipment included many transformers, globes and timers. No evidence was led as to the value of this equipment. The declarations make clear however that little attempt was made to disguise the presence of the cannabis. Indeed the odour of cannabis could be smelt by those on the footpath outside the house. Notwithstanding the evidence called by the prosecution, I find that the hydroponic set up in the house could not be said to be a professional or expensive operation; and, that apart from sundry plastic bags common to any home there were none of the other indicia of commerciality as indicated in Brevet Sergeant Ralph’s declaration. The only evidence called as to whether the plants contained female head, was that contained in the declaration of Ms McKew, and that in the certificate of analysis dated 25 July 2006. The latter detailed certain samples taken from each of the 22 plants the total of which was described as “107gms of cannabis material”. The analyst distinguished between 61.5gms of “cannabis leaf material”; and 45.5gms of “female cannabis plant material”.
Ms McKew opined that the six cannabis plants, found in the “growing room” were each about 1 metre tall; “bushy, healthy and mature with some sparse female flowering head visible in the photographs”. She estimated that each plant could yield approximately “200gm of dry useable material”. It is unclear whether this “dry useable material” is the same quality, as the “female flowering head”, employed by Brevet Sgt Ralph in his estimates of value. As to the 11 cannabis plants in the propagation box in the kitchen, Ms McKew concluded that they were too small to estimate a potential yield. Finally the five cannabis plants growing in the shed appeared to Ms McKew to be healthy but immature. There was no flowering head in the latter five visible to Ms McKew in the photographs, and she concluded that they were too small to estimate a potential yield.
I accept Ms McKew’s findings and estimates. I find that the six cannabis plants in the growing room were healthy and bushy plants that upon reaching maturity would have yielded approximately 1.2kg of “useable material”. I am unable to reach any conclusion as to the potential yield of the other plants. I will return to discuss the potential value of the defendant’s crop after I have detailed the evidence given by the defendant.
(b) The defence case
It is common ground that the defendant comes before the Court with an unblemished record. In addition a testimonial of Adam Johnson was tendered by consent deposing to his good character. A psychological report of Mr Fugler dated 25 April 2008 was tendered by consent to shorten the evidence which would otherwise have been led as to the defendant’s history and the psychological problems he has faced in consequence of his use of cannabis.
The defendant gave evidence and was cross-examined. He said that he had been a regular user of cannabis since he was aged 17 years. He was now aged 37 years. He had left school after passing year 11, and had been in regular employment as a storeman earning between $600 and $800 per week. He had purchased his house in 2001, and had worked and saved to reduce the mortgage which currently stood at $130,000.
He described himself as having been a heavy smoker of cannabis, obliged to purchase at least one ounce at approximately $150 per week. He said that given that cost, he had decided to grow the cannabis himself. He said that he had had no experience, and simply followed written instructions as depicted in photograph 25, which instructions had been given to him by friends. Cannabis material found in plastic containers was the poor quality leaf material he was consuming until he was able to harvest his own plants.
He said that he had decided to employ three separate levels of developing cannabis in different locations, because he did not know whether the plants would be successful. He said “the smaller ones were an insurance policy”.
He did not realise that the original six would be successful.
He said that he had made all of his financial records available. He had no intention to sell any of the cannabis. The defendant was cross-examined at length by Mr Trevarrow. He explained that the hydroponic equipment was not a commercial set up and indeed many of the timers did not work. He said that he had been given the final eleven small plants only a few weeks before the police arrived. He said that he kept them because, although the six larger plants were growing well, he did not know how they would turn out until they were harvested.
Submissions and Discussion
Mr Trevarrow submitted that the proven fact that there were some 22 plants growing in three stages of development ought lead irresistibly to the inference that the defendant was engaged in the commercial production of cannabis.
He referred to the evidence of Ms McKew and Brevet Sgt. Ralph, and submitted that I ought conclude that all 22 plants upon maturity would have yielded about 4.5kgs of cannabis.
When confronted by Ms McKew’s evidence about the yield in respect of all but the first six plants as being speculative, he submitted that even on that basis the yield would have been 1.2kgs with an estimated value of $6,000, if sold in one pound packs at the going rate of $2,000 for each 454 grams.
He submitted that the absence of indicia of trading ought not deflect the Court from concluding that the production was for a commercial purpose.
Mr Retalic counsel for the defendant, referred to the defendant’s good character. He said that the Court was in the ideal position of being able to observe the defendant being cross-examined. This he said was particularly important in light of the psychological problems disclosed in the Fugler report.
He submitted that the defendant was a patently honest witness who did not attempt to hide any of his financial circumstances. He said that it was clear that the accused had a long history of significant personal consumption of large amounts of cannabis. Rather than conclude that this was a sophisticated set up, he said the only reasonable inference open on the evidence was that this was a modest bush home set up for his own consumption. He pointed to the evidence of the written instructions as to how he should grow the plants; the fact that the smell of cannabis was obvious to anyone in the street; the presence of worthless cannabis leaf in the plastic container for his consumption and the absence of any indicia of trading. These established beyond doubt that this was a man attempting to grow cannabis for his own consumption for the first time. Even if I was suspicious about his future intentions, this was not enough. It was not a matter that the defendant had to establish. It was for the prosecution to prove beyond reasonable doubt, that his production on this occasion was for a commercial purpose. He submitted that the prosecution case was based solely on the number of plants. In reality there was nothing unusual in someone having three levels of plants as backup in case the first crop failed. If one were to put the small plants to one side one is left with 6 plants, and significant doubt as to how much female flowering head could be harvested from them. He criticised the method of valuing the crop put forward by the prosecution. He said that it was unclear whether Ms McKew’s estimate of 200gms per plant related solely to the female flowering head or whether it included the useless leaf material.
Conclusion
There was no dispute as to the fact that the accused was a consumer of cannabis and that he had first commenced consuming cannabis seriously when he was aged 17 years. He had been admitted to the Eastern Community Mental Health Service for his drug abuse. This is not a case in which it could be said that the accused exaggerated the amount of cannabis that he was in the habit of consuming. He readily conceded that the amount of cannabis which in fact could be obtained from the plants would greatly exceed his personal needs.
The Crown submitted that certain aspects of the defendant’s evidence were implausible. In particular it was submitted that the defendant knew that he had six viable and healthy plants when he acquired the last eleven cubes. This, it was submitted, represented an acknowledgment of growing more than he needed for his own purposes; and indicated a motive of commerciality.
Clearly the fact that the crop, when harvested, would have exceeded his personal needs, creates a suspicion about the motive for cultivating so many plants. It is however for the prosecution to satisfy me as to the commercial motive beyond reasonable doubt.
The absence of any “indicia” of trading may well be neutral in a case where an accused may have been involved in his first attempt at cultivation, or was involved in “wholesaling” cannabis. However in my opinion the amateurish nature of the “operation” including the handwritten instructions is significant. I observed the defendant give his evidence. On the issue of whether he had intended to grow the crop for commercial purposes, there was no reason for me not to accept his evidence. The only issue which caused me concern as to the truthfulness of his evidence was his assertion that all of the cannabis would be consumed by him. I have no doubt that while most would have been for his own use, some of it would have been supplied to his friends on a social basis. On any view this was his first attempt to grow cannabis, strictly following the written instructions he was given. Indeed his explanation as to his surprise at the success of the first 6 plants and the insurance of the 2 other levels was entirely plausible. I am not satisfied beyond reasonable doubt that the cannabis plants were produced for a commercial purpose.
I will now hear submissions from counsel as to sentence having regard to these findings.