R v Catanzariti
[2004] SADC 106
•30 July 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v CATANZARITI
Judgment of His Honour Judge Kitchen
30 July 2004
CRIMINAL LAW - GENERAL MATTERS
Plea of guilty to one count of producing cannabis - 52 female cannabis plants found at defendant's premises; 6 mature plants, remainder 12-20 cms in height. Prosecution alleges defendant had a primary commercial purpose - disputed by the defendant - disputed facts hearing - onus of proof
Controlled Substances Act 1984 32 and 44, referred to.
Anderson v The Queen (1993) 177 CLR 520, applied.
R v CATANZARITI
[2004] SADC 106
The defendant pleaded guilty in the Magistrates Court to the offence of knowingly producing cannabis contrary to Section 32(1)(a) of the Controlled Substances Act 1984 (the Act). He was committed to this court for sentence.
It is common ground that 52 cannabis plants were found at premises occupied by the defendant and those plants are the subject of the defendant’s offence. Therefore the maximum penalty for the offence is a pecuniary penalty not exceeding $50,000 or imprisonment for ten years or both; there being more than 10 cannabis plants the defendant cannot seek to rely on Section 32(6) of the Act.
The Crown alleges that one of the defendant’s purposes in producing the cannabis plants, the subject of his offence, was the commercial sale of cannabis harvested from the plants. That is a factor which, if established, the court must take into consideration when determining the sentence to be imposed: Section 44(d) of the Act.
If the alleged commercial motivation of the defendant is not admitted, the Crown must establish it beyond reasonable doubt: Anderson v The Queen (1993) 177 CLR 520 at 536. The defendant denied that there was any commercial motivation for the production of cannabis. That issue must be determined before the defendant is sentenced.
The Crown relied upon the declarations listed in the schedule to these reasons, and called two of those declarants, Gregory Webber and Peter Foulis, to give evidence.
The defendant elected to give evidence.
On 25th September 2003 at about 6.10 p.m. Senior Constable Kinsley, in company with Constables Price, Grollo, Specketer and Prescott, went to premises at 8 Claremont Street, Mile End where the defendant resided with his de-facto wife and their children. Kinsley was in possession of a drug warrant to search the defendant’s premises. The defendant was shown the warrant at his request. Asked whether he was growing cannabis at the premises the defendant said “Yeah, come with me”, and led Kinsley, with the other policemen, to a large shed in the rear garden of the premises. The shed was partitioned into three separate rooms.
·In one room (Room 1) there were six cannabis plants, ranging in height between 120 centimetres and 130 centimetres, each growing in a large black plastic pot placed on an upturned milk crate.
·In another room (Room 2) there were 40 cannabis plants, ranging in height between 12 centimetres and 20 centimetres, each growing in a small black plastic pot placed on a table.
·In a third room (Room 3) there were 6 cannabis plants ranging in height between 12 centimetres and 20 centimetres each growing in a small black plastic pot placed in, or on the draining boards forming part of, a double sink.
The first two rooms were equipped with high intensity artificial lighting and equipment to grow plants hydroponically; the police seized nineteen ballast boxes, nineteen light shades, nineteen light globes and two carbon air filters. The growing arrangement of Room 1 is shown in photographs numbered 13-16 inclusive of Exhibit P1. Other photographs in that exhibit show the cannabis plants growing in the other two rooms as they were found by the police.
Gregory Webber is a scientist employed by the Forensic Science Centre; he prepared the certificate of analysis which identified as female cannabis the “snip and save” samples obtained from plants found in and seized from the defendant’s shed. He also identified as cannabis leaf and female cannabis the contents of eight bags found by the police in the growing rooms or in the laundry of the defendant’s house premises, the total weight of the cannabis material being 500 grams.
In his evidence Mr Webber described that cannabis plants grown indoors hydroponically are almost exclusively propagated from cuttings of female cannabis plants, the flowering head of the female plant being the most prized part because of the high content of THC, the active ingredient which produces the effect sought by users of cannabis. He said the growing period, to maturity, is “probably eight weeks to twelve or fourteen weeks … depending on light, temperature, air circulation and the availability of nutrients”. The growth phase can be accelerated by exposing the plant to artificial light for long periods, then shortening the exposure to light “to bring on the flowering phase”.
Taken to photographs numbered 13 and 14 of Exhibit P1, Mr Webber identified that there was black netting, secured to the walls of the room and set parallel to the floor, up to and through which the cannabis plants in Room 1 were growing beneath a number of high intensity lights suspended from the ceiling. Mr Webber’s evidence is that it is a common practice for indoor hydroponic cannabis plants:
“to be grown up as far as the netting, which is then used to spread the plants horizontally; that tends to increase the amount of head that the plant produces, and it also allows the plant to spread a lot more. Often there are only a few plants planted in a room and they are allowed to grow quite large”.
Mr Webber said that a conservative estimate of the yield of each of the six cannabis plants in Room 1, ranging in height between 1.2 and 1.3 metres and which appeared to him to be healthy, reasonably bushy “and growing out on a mesh”, would be at least 200 grams of dry usable material, that is leaf and female flowering head; it appeared to him “that the majority could be head” but in cross-examination he accepted 25% could be leaf material.
Also in cross-examination Mr Webber agreed that another reason for using net mesh, such as that found in Room 1, is to support the head of the plant and so prevent the stem, on which the head of the plant is growing, from breaking, particularly when the plant is of spindly growth.
Peter Foulis is a police officer who for nine years has been a member of the Drug and Organised Crime Investigation Branch involved in the investigation of drug offences. He estimated that in the course of those duties he had been present at more than one hundred places where cannabis was being grown hydroponically in-doors. He said it was rare to find fewer than three cannabis plants being grown, or more than one hundred plants. He said cannabis head is “usually sold at a high level in one pound amounts … and the price of one pound of cannabis head is usually between $2,000 and $3,000”, a price range that has been static for the past four or five years.
He also said there was a market for “clones”, that is cuttings taken from mature cannabis plants, propagated and then sold to those intending to grow cannabis. He described that it normally takes about ninety days to produce mature cannabis plants, and said that he had seen growing plants segregated into groups according to the stage of maturity, which would permit a “rolling” cannabis crop; however he agreed that it is usual to take a cutting at a time close to the harvesting of the donor plant.
Mr Foulis gave evidence that as “an estimate for a standard three plant hydroponic cannabis crop you can purchase a package from an hydroponic shop and its usually $1,500 to $2,000 for a three plant hydroponic set-up” comprising three lights, three transformer boxes, three globes, “three of everything”; as I understand his evidence the production of each plant requires one of the set of the equipment he described. However he agreed that the necessary equipment might be purchased from a second-hand dealer at considerably less cost than the process he had indicated.
Mr Foulis agreed that sellers of cannabis are often found in possession of “customer” or “credit” lists, large amounts of cash, luxury priced goods, or bank or other financial institution records showing substantial deposits, and scales for weighing cannabis material. It is the case, I find, that nothing of this kind was found in the possession of, or associated with, the defendant; there was a set of scales but no cannabis residue was found on those.
Mr Webber and Mr Foulis qualified or made concessions in the course of cross-examination concerning their evidence but neither witness was challenged about their experience or expertise.
The defendant is 37 years old. He migrated to Australia from Italy, I infer with his parents. At the date of this offence he was living in a de-facto relationship in a household including his three children, and engaged full-time caring for his family including his de-facto wife, a pensioner who suffered from post-natal depression – for those services he received a carer’s pension. He said the gross family income was about $1,100 per fortnight made up of the pensions and child allowance.
The defendant said he had smoked cannabis, since he was about 15 years old, until some four months before the day he gave evidence. In 1984 he was dealt with as a juvenile for possessing Indian Hemp; in 1993 he was sentenced in this court to unsuspended terms of 8 months imprisonment for producing cannabis and 8 months imprisonment for possessing cannabis, the sentences to be served concurrently, and in 1998 in Darwin he was sentenced to 18 months imprisonment for cultivating a commercial quantity of cannabis, that sentence being suspended on him entering into a bond to be of good behaviour for 2 years.
The Crown led evidence of the defendant’s prior convictions relating to cannabis, not to indicate a propensity by the defendant to involve himself in producing cannabis, but as part of its case that the defendant was experienced in the cultivation of cannabis, had some historical knowledge of the market for cannabis (in relation to the offences for which he was sentenced in 1993 he told the police he intended to sell cannabis the subject of the offences), knew of the profit to be made from selling cannabis and he knew of the more severe penalties imposed upon those who deal or intend to deal commercially in cannabis; as to the latter matter, the Crown relies on that as evidence the defendant has good reason for denying he had any commercial motive in relation to the cannabis the subject of this offence.
The defendant said that he had began growing cannabis hydroponically about three and a half years ago when he and his family went to live in the house in Claremont Street, Mile End which his parents owned. The defendant’s evidence is that he and his partner paid no rent for the premises, that both he and his partner used cannabis and he set about equipping the shed on the premises for the purpose of growing cannabis, hydroponically, for his and his partner’s use whose combined weekly consumption he estimated to be two ounces, he said he also shared cannabis with friends and associates, users of cannabis, who visited them.
The defendant’s evidence is that prior to the discovery of the six growing cannabis plants on 25th September 2003, he had grown no more than three plants to maturity at any one time the greatest yield from three such plants being just under 1½ pounds, but in mid 2003 his parents informed him they wished to sell the house at Claremont Street within twelve months and, the defendant said:
“so I put six in to get a bigger yield and I was planning to do another six because I have to move out of the home so I was going to store it for myself and my wife to smoke” (T48).
He said that to supplement the lighting and other equipment he had originally acquired for growing three plants, he borrowed lights and ballast boxes from associates to meet the needs of growing six plants; his expectation was he would obtain about three pounds weight of cannabis from the six plants. He denied he had sold, or that he intended to sell, any cannabis.
In cross-examination the defendant said that before he began growing cannabis at the Claremont Street house, he used to purchase cannabis from friends, or at pubs, in quantities of one ounce for his and his partner’s personal use at the rate of about two ounces per week at a cost of $150 per ounce. Mr Foulis’ evidence is that the price of an ounce of cannabis was $200 to $350; at the lower price of $150 per ounce the cannabis habit of the defendant and his de-facto required $300 per week. The defendant has been in receipt of a carer’s pension for many years; his last paid employment was in 1996 or in 1997.
The defendant’s evidence is that he began growing cannabis at Claremont Street because using cannabis “was the only thing I could do to get rid of the pain” he experienced from what he described as Stones disease, beginning four years ago, which he explained as “a condition that produces stones in my kidneys, gall bladder, just a very painful thing when the stones move its just excruciating pain. I’ve had my gall bladder removed because of it, I’ve had operations on my kidneys because of it”. He said he had been treated by injections of morphine “more than I care to remember”, but he had not informed his general practitioner of his use of cannabis to treat his complaint. He said he ceased using cannabis about four months ago when, following pain in his groin, a growth on one of his testicles was identified which may require surgery and several months of chemotherapy, in prospect of which he has been trying to purge his body of toxins. He named the specialist whom he had consulted about his condition.
The defendant said that the equipment he initially obtained to grow cannabis at Claremont Street was either purchased from Cash Converters or at “Trash and Treasure” markets, or was borrowed from friends, the total cost to him being $800 to $900. He said it was likely that he obtained “clones” of cannabis plants from his friends with which to grow his first crop of cannabis. Thereafter he took from the plants he grew cuttings to propagate for his next crop; he said he took the cuttings three or four weeks before harvesting the donor plant, most of the cuttings would die but after two to three weeks from among those which rooted he chose the best ones to grow to maturity.
The defendant’s evidence is that it took four to five months to grow his cannabis plants to maturity and there were sometimes breaks between the harvesting of a crop and embarking upon the growing of the next; the implication is that during the period he claims to have grown only three cannabis plants to maturity at any one time he harvested on average of the order of six pounds of usable cannabis per year. That roughly equates with his, and his partner’s, cannabis consumption of about two ounces per week if his evidence is accepted.
The declaration of Darren Bonnici includes charts showing the electricity consumption, and the charge for it, at the Claremont Street premises since Caroline Joan Robins (whom I infer to be the defendant’s de-facto wife) became responsible for payment of the electricity account at that address on 4th April 2001. The charts disclose that the average daily consumption of electricity at the premises, (in periods of approximately three months) to 9th December 2003, varied between a low of 44.67 kwh and a high of 121.33 kwh, the former being for a period of 89 days concluding on 9th December 2003. The amounts paid for electricity in the same period ranged from a low of $777.86 to a high of $1,696.80.
Mr Bonnici’s declaration includes that in 2002 an average domestic house consumed about 17 units of electricity per day; he explained that “This average takes into account all types of households including single and elderly people who use very little electricity to people who run spas and swimming pools, and climate control systems and other high use electrical appliances”.
The defendant said that because no rent was paid for his and his family’s occupation of the house at Claremont Street he was able to afford the high cost of electricity. Excluding the low consumption in the period of 89 days to 9th December 2003, by my calculation the defendant paid on average $1,341.16 per quarter or about $104.28 per week for electricity consumed at the premises, an amount significantly less (experience would suggest) than a reasonable rent for premises like those occupied by the defendant and his family.
It was put to the defendant that the table of electricity consumption included in Mr Bonnici’s declaration showed a high usage since March 2002 which was consistent with a greater number of cannabis plants being grown at any one time than the three plants the defendant asserted he grew until the six mature plants discovered on 25th September 2003. The defendant said it was not until about two weeks before 25th September 2003 that he acquired and installed the additional lighting and equipment and he expected to harvest the six plants four weeks from the 25th of September 2003. He said he had been growing the six mature plants found by the police for about four months.
Mr Bonnici’s table records that in the period of 94 days to 15th June 2002 11,405 units of electricity were consumed; in the period of 92 days to 17th June 2003 8,670 units were consumed, about 25% less than the same period in the previous year. The reasonable possibility that the increased usage in the earlier year was, as the defendant suggested, attributable to the use of a dryer and not the production of more plants than the three he claimed cannot be discounted because there is insufficient evidence before the court to disprove that possibility.
In the period of the last quarter (commencing on 11th September 2003), to 9th December 2003 shown in the table, two weeks had elapsed by the date (25th September 2003) the defendant’s cannabis production was discovered. In my view it is impossible to extract information from the table, or to draw any inference from it, which assists in identifying whether or not electricity usage in the quarter to 9th December 2003 related to more plants, or the same number of plants, than had been grown on any previous occasion.
The large number of plants, including those measuring between 12 and 20 centimetres, is an indication of cannabis being produced in quantities far greater than necessary for the personal consumption of the defendant and his de-facto partner. The defendant however has given an explanation concerning the plant numbers, and his reason for growing the six large plants in the manner he did. There is no evidence that the defendant was in possession of, or associated with, what Mr Foulis impliedly agreed were the kinds of things pointing toward commercial trading in cannabis frequently discovered by investigators. The Crown case against the defendant relies almost exclusively upon the number of plants, the manner in which, and the equipment with which the plants were being cultivated and the quantity and cost of electricity consumed at the defendant’s premises.
Although there is no evidence that the police officers who searched the defendant’s premises did not find any bongs or other paraphernalia for the smoking of cannabis, the defendant said there were such things at his house. The Crown does not contend the defendant is not a cannabis user, whether it be as a smoker or, as the defendant described, also ingesting it in some other form. There is nothing to controvert or challenge the defendant’s evidence of his, and his partner’s, use of cannabis in the quantities he identified.
I am not satisfied that the evidence of the electricity consumption at the defendant’s premises demonstrates that the defendant grew, in each of the years recorded in the consumption chart, the same number of plants as were found by the police in Room 1. If that had been satisfactorily demonstrated, there would have been evidence that the defendant, who admittedly grew more than two crops each year, was producing far more cannabis than required for his and his partner’s use. The defendant has given an explanation for the mature plants in Room 1, and as to each of the factors on which the Crown relies to prove a commercial motivation on the part of the defendant. The defendant was not, in my opinion, shown to be untruthful and deserving of no credibility. His explanations are not so inconsistent with other evidence before the court as to be wholly implausible.
I find the Crown has failed to prove that the defendant had a commercial motivation for producing the cannabis the subject of this offence. He will be sentenced on that basis.
SCHEDULE OF DEPOSITIONS
R V CATANZARITI
MARK KINSLEY 30 November 2003
GREGORY PILL 19 October 2003
CAMERON JAMES PRICE 26 November 2003
8 January 2004
20 February 2004
Hand-written exhibits log
PETER FOULIS 29 January 2004
DARREN BONNICI 9 March 2004
GREGORY WEBBER 30 December 2003
Certificate of Analysis
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