R v Brendel

[2016] SASCFC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BRENDEL

[2016] SASCFC 89

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Doyle)

18 August 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - OTHER MATTERS

CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR

Appeal against convictions.  Appellant charged with two counts of trafficking in a commercial quantity of a controlled drug in relation to cannabis found in his car and at his property and with cultivating controlled plants for sale in relation to 18 cannabis plants found on his property.  He pleaded guilty to the cultivation and entered a plea of autrefois convict in relation to the two trafficking counts.  The plea was rejected.  He was found guilty of both counts.  Whether the plea in bar should have been accepted.  Whether the elements of the trafficking counts are wholly included in the elements of cultivating cannabis.  Whether those counts should have been stayed in the face of the conviction for cultivating cannabis.

Held:  Per Vanstone J (Blue and Doyle JJ agreeing)  Appeal dismissed.

The elements of cultivating cannabis do not include all the elements of trafficking.  The gravamen of cultivating plants is the growing of cannabis and that does not involve possession.

Controlled Substances Act 1984 (SA) s 4, s 32(1), s 33B(3), referred to.
Pearce v The Queen (1998) 194 CLR 610, applied.
The Queen v O'Loughlin; Ex Parte Ralphs (1971) 1 SASR 219; Wemyss v Hopkins (1875) LR 10 QB 378, considered.

R v BRENDEL
[2016] SASCFC 89

Court of Criminal Appeal:       Vanstone, Blue and Doyle JJ

1. VANSTONE J:     Johnny Lee Brendel was charged with cannabis offences, being two counts of trafficking in a large commercial quantity of a controlled drug and one count of cultivating controlled plants for sale (count 3).  He pleaded guilty to count 3 and entered a plea of autrefois convict in relation to counts 1 and 2.  That plea was rejected and after a trial he was found guilty of those counts by a judge sitting alone.   He now appeals against the convictions on the trafficking counts, arguing that the plea in bar should have been accepted or, at least, counts 1 and 2 should have been stayed in the face of the conviction for cultivating plants. 

   Background

2. At the trial the facts were not in dispute.  The prosecution tendered seven witness statements and a number of photographs.  These establish the following facts. 

3. On the morning of 14 May 2015, the appellant was driving his Toyota Hilux utility along the Eyre Highway at Kimba, when police stopped and subjected him to alcohol and drug testing.  They examined the vehicle for roadworthiness.  Police observed four sealed bags of cannabis wrapped in duct tape and partially hidden between the bull bar and the radiator.  They found a further two sealed bags inside an esky on the rear tray of the vehicle.  In all, 2.89 kilograms of cannabis was found.  That is the subject of count 1, trafficking in a large commercial quantity of cannabis. 

4. Later that day police attended at the appellant’s home, consisting of a house and land at Minnipa.  The appellant’s former partner led police to an area of scrub on the property.  There, next to a tent, police found dried cannabis stored in a 60 litre container.  More cannabis was drying on chicken wire inside the tent.  Some 12.49 kilograms of cannabis was seized from that area.  That is the subject of count 2.

5. The following day police again searched the appellant’s property.  This time they found 18 cannabis plants growing in the ground at various locations.  These plants were the subject of count 3, cultivating cannabis plants for sale. 

6. Counts 1 and 2 invoke s 32(1) of the Controlled Substances Act 1984 (SA) (the Act). That subsection provides:

   A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.

   Maximum penalty: $500 000 or imprisonment for life, or both.

   Count 3 is charged pursuant to s 33B(3). It provides:

   A person who cultivates a controlled plant intending to sell it or any of its products or believing that another person intends to sell it or any of its products is guilty of an offence.

   Maximum penalty:

   (a)for a basic offence—$50 000 or imprisonment for 10 years, or both;

   (b)for an aggravated offence—$75 000 or imprisonment for 15 years, or both.

   The following definitions found in s 4 of the Act are relevant:

   traffic in a controlled drug means—

   (a)     sell the drug; or

   (b)     have possession of the drug intending to sell it; or

   (c)     take part in the process of sale of the drug;

   controlled drug means—

   (a)a drug of dependence; or

   (b)a substance declared by the regulations to be a controlled drug for the purposes of this Act; or

   (c)an interim controlled drug,

   but does not include a controlled plant;

   controlled plant means a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium) or any other plant declared by the regulations to be a controlled plant for the purposes of this Act;

   cultivate a controlled plant means—

   (a)plant a seed, seedling or cutting of the plant or transplant the plant; or

   (b)nurture, tend or grow the plant; or

   (c)harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or

   (d)dry the harvested plant or part of the plant; or

   (e)take part in the process of cultivation of the plant;

   possession of a substance or thing includes—

   (a)having control over the disposition of the substance or thing; and

   (b)having joint possession of the substance or thing;

   Arguments on appeal

7. Mr Retalic, for the appellant, put the following argument.  He submitted that Pearce v The Queen (1998) 194 CLR 610 stands for the proposition that autrefois convict is available where the elements of offences charged are identical, or where all the elements of one offence are wholly included in the other.  He argued that the elements of counts 1 and 2 were contained within those making up count 3.  Acknowledging that, strictly, count 3 did not contain all the elements of counts 1 and 2 – because possession was not an element of count 3 – Mr Retalic put that it was permissible to go behind the elements to see what the prosecution case actually was.  He argued that The Queen v O’Loughlin; Ex Parte Ralphs (1971) 1 SASR 219 was an instance of a case where the elements of the two charges under consideration were different, but where the court found that the defendant was being prosecuted twice for the same set of facts or transaction. Mr Retalic argued that although counts 1 and 2 contained the extra element of possession, upon proper analysis count 3 could not have been committed without possession being demonstrated. That a cultivation could be committed on the basis of harvesting or drying harvested plant product and that those activities necessitated possession, tended to underline that. Counsel argued that the difference in the dates of commission of counts 1 and 2 (14 May 2015) and count 3 (15 May 2015) was of no consequence, because plainly, the plants were already growing on the day before when the appellant was found in possession of the two amounts of dried cannabis. Therefore, the dates of the offences coincided.

8. As I understood his argument, Mr Retalic put that the whole sequence of offending could be viewed as one transaction, inasmuch as the cannabis involved in counts 1 and 2 appeared to be the product of the cultivation charged in count 3;  or at least part of an ongoing process of cultivation and disposal. 

9. In the alternative, Mr Retalic argued that, at least, upon the plea of guilty to count 3, counts 1 and 2 should have been stayed. In those circumstances, the facts upon which they were based could properly have been taken into account in sentencing for count 3.  Count 3, he said, was the “most representative of the whole transaction”.  It encompassed “virtually everything” that was alleged against the appellant. 

   Discussion

10. It is helpful to examine in more detail the two decisions principally relied on by Mr Retalic.

11. In Pearce v The Queen, there were charges of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, and breaking and entering the victim’s dwelling house and there inflicting grievous bodily harm on him.  Those charges arose from a single episode.  The appellant broke into the victim’s house and beat him.  The appellant applied to the primary Judge for a stay of one or other of those counts on the basis that the indictment was oppressive, or an abuse of process, or both.  It was submitted that the appellant was placed in double jeopardy by the preferment of the two counts mentioned.  The application was refused and he was subsequently sentenced on both counts, the identical sentences to be served concurrently.  The majority, comprising McHugh, Hayne and Callinan JJ (Gummow J agreeing) held that a plea in bar would not have been available because, while the elements of the two offences overlapped, they were not identical.   Nonetheless, the Court allowed the appeal against sentence because the penalty imposed amounted to double punishment.

12. In their reasons for decision, the plurality noted several relevant principles. Their Honours observed at [11] that a single series of events could give rise to several different criminal offences to which different penalties attach. It had been recognised that an offender should be punished only for the offence with which he was charged, and that where charges were framed to reflect the entirety of an accused person’s criminal conduct, that would enable the imposition of punishment reflecting all that conduct. Their Honours went on to say that the plea in bar was available where the elements of the two offences in question were the same, or where the elements of one were included in the elements of the other for which the accused had been convicted or acquitted: [18]. The Court referred to Wemyss v Hopkins (1875) LR 10 QB 378, but said that it was a misunderstanding to say that the two offences there were different: [22].

13. O’Loughlin’s Case was a decision of this Court decided long before Pearce’s Case.  There, the defendant pleaded guilty to driving a motor vehicle while under the influence of liquor.  He was also charged with driving while there was present in his blood the prescribed concentration of alcohol.  The former charge emphasises the impairment in the manner of driving, while the latter charge is based only on the concentration of alcohol in the blood.  The Magistrate stayed the second charge, but took into account the blood alcohol level in sentencing for the first.  Bray CJ held, at 228, that a previous conviction for some act or omission arising out of the same set of facts was a bar to a later charge proceeding, although some care was needed in defining the facts constituting the act or omission.  Wells J noted, at 289, that the two offences were not technically the same and that there would be cases where both charges should proceed.  Sangster J, at 296, found that there was significant similarity between the circumstances of the two offences so as to render it unjust for the second charge to proceed.

14. The first question for decision is whether the elements of count 3 are indeed the same as the elements of counts 1 and 2.

15. The element of possession of a specific quantity of cannabis is central to the charges contained in counts 1 and 2.  Possession is not, as Mr Retalic acknowledged, an element of count 3.  That an offence of cultivating cannabis plants might be committed in such a way as to involve possession of the harvested plant matter is not to the point.  The gravamen of count 3 is the growing of plants and that does not involve possession.  Therefore, the elements are not the same.  Neither are the elements of the one offence included in the other.  As Mr Retalic acknowledged, cultivating cannabis is not an element of counts 1 and 2.  

16. However, there are additional difficulties with the appellant’s submission.  Count 3 is not concerned with the cannabis the subject of counts 1 and 2.  It is concerned with the 18 growing cannabis plants located by police the next day.  Some of the cannabis the subject of counts 1 and 2 might have been the product of the 18 growing plants.  Alternatively, it might have been the product of an earlier cultivation of different plants.  Whichever was the case, the cannabis the subject of each of the three counts was discrete.  It is for that reason that, although counts 1 and 2 were charged in identical terms under the same provision, and on the same day, there was no suggestion of double charging.

17. In my view it was appropriate for the information against the appellant to be framed in the way it was.  Although it can be acknowledged that, on the face of it, there was one continuing course of conduct undertaken by the appellant, it was multifaceted.  I would describe it as a single enterprise, rather than one transaction. All its aspects, which included production of cannabis, a store of the drug ready to be disposed of, and an amount which was clearly being transported in furtherance of the intention to sell, could not have been represented by one charge of cultivation.  Had it been charged solely as a cultivation, the appellant would have been entitled to claim that he should only have been sentenced for the cultivation.  Had only one charge of trafficking in the form of possession been laid, then the defence could have asked the prosecution to elect as between the cannabis seized from the vehicle and the amount of dried cannabis found on the property. 

18. I do not consider it necessary to further examine the statements which were made in The Queen v O’Loughlin.  That case was decided in this Court long before the principles associated with autrefois convict were elucidated in Pearce and other High Court cases.  O’Loughlin’s Case was really more concerned with characterising a particular act, as opposed to what charges are required or sufficient to represent a course of criminal conduct extending over a period involving, as I have found, more than one criminal act.  In addition, the decision turned on the Magistrate’s want of power to stay a proceeding.  Certainly, the principle that a person should not be doubly punished for the same act stands good, but there is a question in my mind whether, in the light of Pearce, charges of driving under the influence and driving with the prescribed concentration of alcohol could not both proceed to conviction.

19. For the same reasons, an application for a stay of prosecution of counts 1 and 2, if made, would not have succeeded.  It is unnecessary to say more about that alternative submission.

    Conclusion

20. Therefore, I consider that the judge was correct to reject the appellant’s plea of autrefois convict.  The offending charged in counts 1 and 2 was not subsumed into count 3.  The charges were appropriate.  Having said that, plainly, the appellant was to be sentenced for one course of offending, albeit multifaceted.  The usual sentencing principles designed to guard against double punishment should serve to ensure that the appellant’s sentence is appropriate.

21. I would dismiss the appeal.

22. BLUE J:                I agree.

23. DOYLE J:             I agree.