R v Cochrane - [2007] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v COCHRANE
[2007] SADC 44
Reasons of His Honour Judge Nicholson
3 May 2007
CRIMINAL LAW
Prosecution failed to prove beyond reasonable doubt as an aggravating factor that taking part in production of cannabis and producing cannabis was for the purpose of supply to other persons - prisoner failed to prove on the balance of probabilities the requirements of s32(6).
Controlled Substances Act 1984 s32, referred to.

R v COCHRANE
[2007] SADC 44

Paul William Cochrane has pleaded guilty to one count of taking part in the production of cannabis (s32(1)(b) of the Controlled Substances Act 1984 (“the CSA”)) and one count of producing cannabis (s32(1)(a) of the CSA).
In essence, the police raided the premises of Mr Cochrane on Saturday, 29 April 2006 and took possession of approximately 3.62 kilograms of harvested cannabis plant material (the subject of the first count), together with eight growing cannabis plants (the subject of the second count). The Crown asserts that Mr Cochrane was taking part in the production of cannabis and was producing cannabis for the purpose of supply to another person and that this is an aggravating factor for the purpose of sentencing. The Crown has not asserted commerciality but only social supply. This is disputed by Mr Cochrane. It is common ground that supply to another person, as an aggravating factor, must be proved beyond reasonable doubt.
The second count, in the circumstances, is an offence involving cultivation of not more than ten plants, being the number of cannabis plants prescribed for the purposes of s32(6) of the CSA. Accordingly, if Mr Cochrane were to satisfy the court that he cultivated the eight plants, the subject of the second count, solely for his own smoking or consumption, he would be liable only to a penalty not exceeding $500 and notwithstanding the terms of s32(5)B(a)(iii) of the CSA. Again it is common ground, that the burden of proof assumed by the defence with respect to s32(6) is on the balance of probabilities.
For completeness, I add that in the circumstances of this offending, the deeming provision in s32(3) of the CSA is not available to assist the Crown.
I conducted a disputed facts hearing on 13 April 2007. The Crown tendered by consent the witness statements of Julie Louise Jones dated 13 June 2006, Shane Michael Kermode dated 24 May 2006 and 8 November 2006, Luke Sweetman dated 1 May 2006 and 24 October 2006, Michael Peter Wilckens dated 3 June 2006, Kirstin Wojciechowski dated 30 May 2006, Jason Wynne dated 1 May 2006 and Lynette Margaret Nowland dated 16 October 2006. The Crown also adduced oral evidence from Constable Jerome Lienert, Gregory Webber who is a forensic scientist appointed as an analyst under the Controlled Substances Act 1984 and Detective Sergeant Kym Roberts from the Drug Investigation Branch of SAPOL. Amongst the exhibits tendered by the Crown with the consent of the defence were a booklet of photographs (P4) depicting various scenes of the premises taken at the time of the raid and various items relevant to the offences located at the premises and exhibit P7 being a certificate of analysis prepared by Mr Webber and dealing with various items of cannabis material located at the premises during the raid.
The defence adduced evidence from Mr Cochrane himself, Mr Cochrane’s wife (Mrs Cindy Cochrane) and Aaron Little who at the time of giving evidence was fifteen years old and who boarded with the Cochranes at the time of the relevant events. These three were all present in the premises at the time of the police raid.
In support of its case, the Crown sought to establish and to rely on the following facts:
(i)the amount of dried usable female cannabis head that had already been harvested at the time of the police raid and an estimated amount that was yet to be harvested from the five of the eight plants that had matured and were ready or almost ready for harvesting (in total, approximately 2.85 kgs);
(ii)the fact that there was another male at the premises at the time of the raid (Mr Adrian Mills) who the Crown maintains was, at the time of the raid, assisting Mr Cochrane to cut up the harvested cannabis;
(iii)the fact that Mr Cochrane was an experienced cultivator of cannabis plants;
(iv)the fact of the apparent ongoing nature of the production with immature plants growing to produce a further crop; and
(v)the fact that Mr Cochrane appeared to engage in various social activities with friends in the context of his growing of cannabis.
To my mind the only factor, taken on its own, which is of any real potential significance is the quantity of cannabis harvested and to be harvested. In my opinion each of the other factors relied upon by the Crown, when taken in isolation, does not advance its case very far, if at all. However, I will need to consider all of these factors, to the extent made out, together and as a whole in deciding whether the Crown has made out its case. I will deal with the less significant factors briefly before considering the quantity of the cannabis harvested and expected to be harvested in more detail.
I find that Mr Cochrane was an experienced cultivator of cannabis plants. So much was readily conceded by both Mr and Mrs Cochrane. According to them, Mr Cochrane has been growing cannabis from seed for at least ten years. However, this fact alone, that is, that Mr Cochrane is an experienced and clearly competent cultivator of cannabis plants is as consistent with a purpose of obtaining cannabis for personal use as it is with obtaining cannabis for supply to others.
The fact that Mr Cochrane may have had a second crop (the three smaller plants identified by Mr Webber as not yet mature enough for harvesting) also on its own does not advance the Crown case for the same reason. In this respect, I should mention that Mr Cochrane’s evidence was to the effect that the three smaller plants found by the police were part of his original planting and were of the same generation as the five large cannabis plants ready for harvesting. His explanation was that these three plants had failed to thrive. For the present I am prepared to assume the Crown’s case at its highest and that these three smaller plants were in fact a second or further crop on the way.
As evidence of the assertion that Mr Cochrane engaged in social activities centred on his production of cannabis, the Crown relied upon a series of photographs found by the police at the time of the raid (exhibits P6 and P6A). These photographs showed Mr Cochrane and his family together with friends in various poses in the backyard of his premises and in other premises, apparently drawing attention to and appearing to be quite pleased about the existence and size of various cannabis plants. The Crown argued that an inference should be drawn from these photographed events that Mr Cochrane shared his cannabis, socially, with other people. The photographs in P6 and P6A depict plants (only some of which are cannabis plants) that are different from those the subject of the present charges. Mr Cochrane told the court that these photographs were taken quite some time ago, probably in about 1998; I accept Mr Cochrane’s evidence on this topic. In any event, the fact that Mr Cochrane was, quite evidently, extremely proud of some of his earlier efforts, does not on its own, assist the Crown in demonstrating that the plants and the harvest the subject of the charges were produced for the purpose of supply to another person.
The Crown also relied on the evidence of Constable Lienert to the effect that when he arrived at the premises he observed a man who subsequently identified himself as Adrian Mills, leaving the rear shed on the property, being the shed in which the police found a substantial quantity of cannabis plant material in various stages of preparation. The police also found two pairs of scissors in that shed. The state of the shed (see photographs 44 and 45 of P4) was such that it can be inferred that a person or persons had been working in the shed cutting and otherwise preparing the cannabis plant material so as to put it in a suitable form for consumption. Constable Lienert told the court that when he observed Mr Mills leave the rear shed he was “very sweaty, had a large amount of perspiration on his forehead, and he appeared to be nervous”. Mr Mills did not give evidence. Both Mr and Mrs Cochrane told the court that he had visited that evening to visit their boarder Aaron, who was the son of a friend of Mr Mills who was then in prison. Mrs Cochrane said that she took Mr Mills to the back door and sent him out to an outside room (a converted carport) in which Aaron was staying. Neither Mr nor Mrs Cochrane were able to tell the court that they had Mr Mills under personal observation for the whole of the period that he was at their house and, in particular, at the time that the police raided the property. Aaron told the court that Mr Mills spent the time with him watching television in his room.
I accept the evidence of Constable Lienert that he observed Mr Mills exiting from the shed in which the cannabis preparation had been taking place. I also accept that Mr Mills was, at the time of the police raid, in the shed and assisting Mr Cochrane with the cutting and trimming of the cannabis product. Nevertheless, to my mind it is a reasonable possibility that Mr Mills was assisting Mr Cochrane in that endeavour as an act of friendship or simply as part of their social intercourse that evening. In other words, I am not persuaded beyond reasonable doubt that simply because Mr Mills was assisting in this endeavour that Mr Cochrane necessarily intended to supply him with some of the cannabis.
I turn now to the question of quantity. Having reviewed the evidence of Mr Webber, which I accept in general, and in particular P7, I find that of the approximately 3.62 kgs of cannabis material found by the police, there was approximately 1.6 kgs of dry usable female head. Mr Webber’s evidence was to the effect that it was this material that, most likely, would be smoked or otherwise consumed by a user of the 3.62 kgs of cannabis material located. In addition, Mr Webber said that of the eight plants that had been confiscated by the police, five of them were mature and ready for harvesting. He said that, at a conservative estimate, each plant, following harvest, would produce approximately 250 gms of dried cannabis female head. He acknowledged that this was difficult to estimate accurately in reliance only on the photographic evidence before him (P4). I add here, that it appeared to be an assumption in Mr Webber’s evidence that the five plants that he identified as ready for harvesting had not already been harvested in part. That is, there appeared to be an assumption underlying his evidence that the 3.62 kgs of cannabis plant material already harvested and confiscated by the police, had not come from these five plants. There was no direct evidence on this topic. Mr Cochrane only ever acknowledged having grown eight plants; the five large ones that Mr Webber identified as ready to harvest and the three stunted or failed (according to Mr Cochrane) plants. Mr Webber expressed the opinion, based on a photograph of the three smaller plants in P4, that these plants were only a few weeks old and were, in effect, a new crop. I am troubled by the possibility that the five larger plants may have already have been partially cropped in which case it would produce a false total simply to add the 1.6 kgs of dried usable female head obtained from the 3.62 kgs of plant material to a further five lots of 250 gms of dried female cannabis head material said to be obtainable from the five large plants. I am also troubled by the possibility that Mr Cochrane is correct in that the three smaller plants, rather than being a new planting, might in truth have been three failed or stunted plants from the original planting. In this respect I note that Mr Webber only had a photograph to go on and was not able to examine the plants in situ. I further note that by reference to photograph 30 of P4, there does appear to be some flowering on the three smaller plants. Mr Webber agreed with this (T30). If so, it is possible that this would support Mr Cochrane’s version namely that the plants whilst of similar age to the other five, had been stunted in their growth. However, no evidence was adduced either from Mr Webber or Mr Cochrane as to what might be inferred from any such flowering. Accordingly, I place no reliance on this.
For present purposes I am prepared to assume, and notwithstanding the concerns expressed above, that Mr Cochrane had available to him 1.6 kgs of dried usable female cannabis head already harvested together with a potential further 1.25 kgs of dried usable female cannabis head still to be harvested.
Detective Sergeant Roberts has spent four years with the Drug and Organised Crime Investigation Branch. He also spent a period of eighteen months in charge of drug investigations in the Sturt Local Service Area. His qualifications and experience were not challenged by the defence and I accept that he has significant knowledge of the cultivation, use and distribution of cannabis in South Australia. He told the court that the flowering head of the female plant is the most sought after part of a cannabis plant. He also explained that when smoking a joint approximately .5 gm of cannabis would be consumed. The more usual and smaller cone that he sees usually takes about .2 gm although he has on a few occasions seen a larger cone which takes about .5 gm. In his experience this cone is very rare. He identified from photograph 40 in P4 a bong which Mr Cochrane admitted as being one he used. Detective Sergeant Roberts said that this particular bong would use about .2 gm in the cone attached to it.
Detective Sergeant Roberts said that the amount of cones that would be smoked on a daily basis would be dependent on the individual person. A heavy user might smoke cones on a daily basis; he has known people that smoke in excess of five cones a day and some people have stated to him that they smoke almost continuously. On the basis of his evidence, simple arithmetic indicates that a kilogram of dry usable female head would be sufficient for approximately 5000 cones of the smaller variety or 2.,000 cones of the larger variety, or joints. Detective Sergeant Roberts agreed that some people, in his experience, regularly purchased at least 2 ozs of cannabis a week which was the equivalent of 280 cones (of the smaller, 0.2 gm, variety). However, he made the obvious point that it could not be said in those cases whether the amount that was bought was for the individual to consume themselves or with others in a social group.
Detective Sergeant Roberts agreed that producers of cannabis for their own use often would dry a large quantity and store it for use over an extended period of time. However, he said he would be surprised if they would keep it longer than say six months “most cannabis consumers are pretty fussy with the quality and they don’t like it if it is too dried out or too old”. He agreed that a personal user, by growing a number of plants at varying states of growth or maturity, could crop at various stages and keep a continuous supply of cannabis coming in at regular intervals. He agreed that cannabis plants take three to four months to grow to maturity, that the summer season is the best time to grow cannabis and that if someone wanted a twelve month supply they would try and grow it during that summer period.
Mr Cochrane gave evidence. He said that he had a severely painful, degenerative back condition that started when he was a teenager but that it had got worse over the years. He started smoking marijuana at about the age of seventeen or eighteen (he is presently 46 years old). He told the court that his doctor, Dr Giacco, had prescribed him MS-Contin 400 mgs per day together with Lexapro for the back pain. However, he preferred to use cannabis for pain relief because he did not like the morphine-based drug which made him drowsy. He said that with marijuana he still knew what was going on around him and he was still able to do things whereas with the morphine he was “zonked out all the time”. Nevertheless, he told the court that he took his prescription medicine every month. Whilst his evidence was not entirely clear on this topic, it does appear that he both takes his prescription medicine and consumes very substantial amounts of cannabis for his pain relief most of the time. I accept his evidence, at least in this latter respect. When asked how much he was currently smoking in terms of cones, he said, “Probably 20, 30 to 40, all depends on how much I’ve got, if I’ve got it or not.” He said that he had been using cannabis at this level of consumption for the last four or five years.
He said that he might smoke on occasion up to ten cones per hour. He gave a demonstration in the witness box of how on these occasions he would light up a cone, draw back a number of times very quickly and very vigorously so as to consume the cone in seconds. He was attempting to convey that on these occasions he was not sitting down lingering over a smoke but rather sucking back as much of the drug as he could get as quickly as possible. This exchange occurred during cross-examination:
QYou say that you smoke between 20 to 40 cones per day. How long did it take you to smoke a single cone.
A(DEMONSTRATES) probably; smoked.
QWhat’s that.
AI have just smoked it, then basically like you light it up, sometimes for 5 seconds or so and smoke it.
QAnd it’s finished.
ABasically, blow the smoke, yes.
QSo how many cones would you have per hour.
AReally it all depends on – a lot. Probably 10 cones, sometimes.
HIS HONOUR
QPer hour.
ASorry?
QPer hour.
ASometimes, yes. Probably, you only need about 6 cones, 6 to 8 cones and you sought of – I am there where I don’t feel any pain then.
XXN
QOnce you get to the point of not feeling any pain, how long does it last.
AThat all depends, too, on what I have been doing and everything, like – like I sleep for 4 or 5 hours after I have had a session during the day – I have sessions during the day and at night time I can sleep with the last one.
QIf you are sleeping 4 to 5 hours, then it is in the hours that you are awake that you are consuming 20 to 40 cones per day.
AI don’t smoke while I am asleep.
QWould you wake up during the night and smoke cones.
ASometimes if my pain – if I had pain, yes.
Mr Cochrane maintained that the cannabis he produced was only ever for his own use and that he did not make it available to any other person. His wife, Mrs Cochrane gave evidence. She said that she had not known him to provide cannabis to any other person. She also said that he was a very heavy user, because of his back pain, but that she did not allow him to smoke in the house and that he had to smoke in the shed.
Mr Cochrane said that he could not afford to purchase the amount of cannabis he needed to consume each week and that that was why he started to grow it. He disagreed that cannabis could not be kept in good condition for longer than six months and said that if treated and stored appropriately it could last for one, two or three years. He dried and stored his cannabis in containers and also stored it in the freezer of a small refrigerator which was in the laundry and otherwise used for keeping dog food. He was not allowed to keep it in the freezer of the main refrigerator in the kitchen.

The evidence given by Mr Cochrane and his wife as to Mr Cochrane’s back condition, his need for pain relief and his use of large quantities of cannabis to assist with that pain relief, whilst tested by the Crown, was not directly challenged. In response to questioning by me, Mr Cochrane said that he had had x-rays and that he had also been “in the big tube” (which I take to be an MRI examination) and that he had had needles in his back. He had seen a specialist doctor and goes to that specialist “every so often”. He said that he was to have an epidural but his doctor advised him against it. In response to this exchange counsel for Mr Cochrane sought to tender a doctor’s report. The Crown objected to its tender in the absence of the doctor being call for cross-examination. I refused the tender for this reason.
I accept that it is a reasonable possibility that Mr Cochrane does suffer from a significantly painful back condition and that he is an extremely heavy user of cannabis. Using a broad brush, 2.85 kgs of dried usable female head would generate something between 5,700 and 14,250 cones or joints depending upon whether .5 gms or .2 gms was to be consumed on each occasion. Taking the number of cones at its highest and accepting for present purposes as a reasonable possibility (as I do) that Mr Cochrane consumed at least thirty cones per day, the 2.85 kgs would last him approximately 1.3 years.
The effect of Mr Cochrane’s evidence also was that this particular crop was rather more successful than he had expected. He said that he planted from seed on the basis that he would expect three or four vigorous female plants to result. However, he ended up with a more successful crop on this occasion. I accept this as a reasonable possibility.
As I have indicated, for present purposes, I am prepared to accept each of the five factual elements of the prosecution case referred to in paragraph 7 above. Nevertheless, and after considering them together as a whole, in my view it remains a reasonable possibility that Mr Cochrane took part in the production of the cannabis the subject of the first charge and produced the cannabis, the subject of the second charge, with the intention or purpose of stockpiling it for his own consumption and not for the purpose of supply to any other person.
The Crown case on this point is circumstantial. I must be satisfied not only that the purpose of supply to another person is a rational inference available on all of the evidence, but also that it is the only rational inference, that is, that there is no reasonable possible inference available on the evidence consistent with innocence in this respect. I find that the Crown has not proved the aggravating factor it has sought to make out beyond reasonable doubt.
Whilst I am prepared to find that it is a reasonable possibility that Mr Cochrane’s only purpose was to stockpile the cannabis in question for his own personal use, I do nevertheless find it unlikely that Mr Cochrane, in producing this number of plants, did so “solely for his own smoking or consumption”. In other words, on the evidence before me, I am not persuaded on a balance of probabilities, that at the time Mr Cochrane engaged in producing cannabis the subject of the second charge (that is, at the time of cultivating the eight plants) he had no intention of sharing any harvest obtained from these plants at least with friends on social occasions. I am not persuaded on the balance of probabilities that Mr Cochrane cultivated the plants solely for his own smoking or consumption so as to fall within the terms of s32(6).
In conclusion, I find that the Crown has not made out, as an aggravating factor, a purpose of supply to other people which it has sought to rely upon with respect to the sentencing of Mr Cochrane on both charges and Mr Cochrane has not made out with respect to the second charge, the mitigating factor provided for by s32(6). Accordingly, Mr Cochrane will be sentenced on this basis and having regard to the terms of s32(5)B of the Controlled Substances Act 1984. I will hear sentencing submissions from counsel on Tuesday, 8 May 2007 at 9.15am.