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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Apostolides (No 2)

Details

AGLC: R v Apostolides (No 2) [2008] SADC 94
Case: [2008] SADC 94
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the District Court of South Australia, Paul Anthony Apostolides was convicted for producing cannabis. The defendant had pleaded guilty to producing 22 cannabis plants hydroponically in his home. The prosecution alleged that the plants were grown for commercial purposes, which would constitute an aggravating factor. The court was tasked with determining whether the prosecution had proved the commercial intent beyond reasonable doubt. The case hinged on the interpretation and application of the Controlled Substances Act 1984 and relevant case law, particularly R v Anderson and R v Ninnes. The prosecution argued that the quantity and quality of the plants, alongside the hydroponic setup, indicated a commercial operation. Conversely, the defence contended that the setup was amateurish and the plants were grown for personal consumption.

The court scrutinised the evidence presented by both sides. The prosecution's expert witnesses, Brevet Sergeant Michael Ralph and Ms Tanya McKew, provided insights into cannabis cultivation and market prices, suggesting the plants' potential yield could have been significant. The defence presented the defendant's personal history of cannabis use and his financial records, which indicated a lifestyle inconsistent with commercial dealing. The defendant testified that he grew the plants for personal use, following instructions from friends and maintaining multiple stages of growth as a precaution. The court found the hydroponic setup to be rudimentary, lacking the sophistication typically associated with commercial operations. It also noted the absence of other indicators of commercial activity, such as unexplained wealth or paraphernalia related to drug dealing.

After weighing the evidence, the court concluded that the prosecution had not proved beyond reasonable doubt that the defendant's intent was commercial. The amateurish nature of the operation, the defendant's credible testimony, and the lack of indicia of commercial activity led the court to this decision. The court observed the defendant's demeanour and found his account of growing cannabis for personal use to be plausible. The final orders will be determined after considering these findings in the sentencing phase.

Orders