R v Errigo - [2005] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v ERRIGO
Reasons of His Honour Judge Clayton
4 May 2005
CRIMINAL LAW
Findings as to the role of a defendant found guilty by a jury of taking part in the production of cannabis
Controlled Substances Act 1984 32(1)(b), referred to.

R v ERRIGO
[2005] SADC 39

Mr Errigo was found guilty by a jury of the offence of taking part in the production of cannabis in contravention of section 32(1)(b) of the Controlled Substances Act 1984. On 23 February 2005, the Court of Criminal Appeal dismissed an appeal against the conviction.
On the hearing of the appeal Mr Errigo complained that evidence that he owned and resided on the premises where cannabis was being grown was incorrectly admitted. Such evidence was relevant to the question of whether he knew of the presence of the cannabis plants.
Submissions on sentencing were made on 11 March 2005. Counsel for Mr Errigo admitted that the property was registered in the name of Mr Errigo, but stated that the property was held in trust for his parents. He said that the parents had put the home in the name of Mr Errigo in order to qualify for a pension and that “in reality, and in truth, the subject crop was always his father’s and his mother’s”.
Counsel told the Court that Mr Errigo became aware that cannabis was being grown by his father on the property when he was told of that fact by his father. Mr Errigo claimed that he never saw the plants, he did not know how big they were, what condition they were in, or how many there were. All he knew was that his father was growing cannabis plants on the property.
Counsel told the Court that because of the dynamics of the European family Mr Errigo was not in a position to say whether he agreed with or opposed what was happening on the property. It was submitted that what the father said was, as far as the family was concerned, absolute law and that there was no way that Mr Errigo would challenge the authority of his father for fear of repercussions. It was put that if any of the siblings challenged the father’s authority “there could be no question that he would pick up a pickaxe handle or something and bash them and they would just have to stand there and take it”. It was said that was part of their cultural background. It was said that while Mr Errigo knew what was happening, because he had been told by his father, that was the extent of his involvement.
Mr Errigo’s father passed away after the offence came to light, but his mother pleaded guilty to knowingly taking part in the production of cannabis and was sentenced by Judge Sulan on 26 February 2003.
Counsel for Mr Errigo accepted that it is a serious offence but submitted that the involvement of Mr Errigo was “rock bottom”. The prosecution contested that submission. The Crown argued that if Mr Errigo asserted that he had never seen the crop, did not know how many plants there were and what size they were he needed to give evidence.
A disputed fact hearing was therefore listed on 14 April 2005. At the outset counsel for Mr Errigo outlined the dispute. He said:
“Basically there are three points. One: he says he never lived there on a regular basis from mid to late 2001 up until 26 March 2002. He says that was his parents’ home and he stayed there for one or two nights on a regular basis from time to time.
Two: that he says he became aware in early 2002 that his father was growing cannabis in the rear yard. He says he was told by his father, in effect, not to interfere with what he was doing and that his instructions are that he respected his father’s position as the head of the family.
Three: that he did not know how much cannabis was grown, how big the plants were, he never kept them under observation. He says he never even looked but he knew they were there and he knew they were there at the back of the yard as the photographs show.”
In sentencing submissions, counsel for Mr Errigo acknowledged that the knowledge required to make out the offence was acquired through what Mr Errigo was told by his father.
The submission of the Crown was that Mr Errigo lived on the subject property and that objective pieces of evidence in conjunction with an inherently improbable and incredible explanation regarding his knowledge of the plants lead to a conclusion that Mr Errigo knew more than he acknowledged.
The first requirement is to give due weight to the verdict of the jury. As I have mentioned, Mr Errigo was convicted of the offence of knowingly taking part in the production of cannabis contrary to section 32(1)(b) of the Controlled Substances Act 1984. Inherent in that verdict is a finding that Mr Errigo knew of facts or circumstances which provided a basis for him to have suffered or permitted the production of cannabis. Knowledge of the existence of the crop was an essential prerequisite to the offence. That is, the jury had to accept that it had been established beyond reasonable doubt that Mr Errigo knew of the existence of the crop, but did nothing about it. There was no evidence that Mr Errigo took any step or participated in any step or caused any step to be taken in the process of producing cannabis. That was not the Crown case.
On the hearing of the appeal by Mr Errigo, both his ownership of the property and his residence there were in issue. Those issues have disappeared for the purpose of sentencing because of Mr Errigo’s acknowledgment that he was the registered proprietor of the legal interest in the property and held the beneficial interest in trust for his parents, his acknowledgement that he resided at the premises on two or three days each week and his acknowledgement that he was aware of the existence of the crop.
The submission which has been put is to the effect that Mr Errigo could not have done anything if he had wanted to because of the pressure placed on him by his father and family. No evidence was put before the jury as to the claim that the dynamics of the family prevented Mr Errigo from taking steps to prevent the production of the cannabis. The jury must have assumed that Mr Errigo knew about the crop and suffered or permitted it in a way that was voluntary. If I accepted the submission that family pressures prevented Mr Errigo from taking action, it would raise a defence of duress in a way which is inconsistent with the verdict of the jury. However, that complication does not arise, because for reasons discussed below, I do not accept the evidence of Mr Errigo.
On 9 March 2005, Mr Errigo was interviewed by Mr A E Fugler, a psychologist, for the purpose of a report to be used in support of submissions in mitigation of penalty. Mr Errigo told Mr Fugler that the sole reason for his being at his parents house when the police arrived was so that he could take his father to a medical appointment on the day of his arrest. In submissions counsel put that Mr Errigo lived at Linwood, Moonta, the Riverland and on the subject property. The evidence of Mr Meaney establishes that Mr Errigo did not reside at his Linwood property as he claimed. Ultimately, the dispute about Mr Errigo’s place of residence was resolved by Mr Errigo’s own evidence that he stayed at the subject property two or three times per week. What Mr Errigo told Mr Fugler about his place of residence was incorrect.
Mr Errigo also told Mr Fugler that he had no knowledge that the plants were on the property. Mr Errigo’s statement to this court was that his father had advised him of the existence of the crop. Accordingly, what he told Mr Fugler on the question of his knowledge of the existence of the crop was incorrect also.
The incorrect statements of Mr Errigo to Mr Fugler demonstrate a disregard for the truth. I do not accept Mr Errigo as a reliable or truthful witness.
The place of residence is by itself inconsequential. What is important is whether Mr Errigo had an opportunity to learn of the existence of the crop. Residing at the premises, even for limited periods, would have provided such an opportunity. It is therefore unnecessary to decide whether the subject property was Mr Errigo’s principal or only place of residence.
The fact of ownership could also be relevant to the question of whether Mr Errigo had suffered or permitted the crop to be produced. A person takes part in the production of a drug if the person suffers or permits any step in that process to be taken in premises of which he is the owner. In my opinion the verdict of the jury involved an inherent finding that Mr Errigo had suffered or permitted the crop to be produced.
The Act does not distinguish between legal ownership and beneficial ownership of the premises. Even if one accepted Mr Errigo’s evidence, legal ownership of the property would be sufficient for the purpose of making out the offence. It is the trustee and not the beneficiary who has control of the trust property. An analysis of the factual situation is made unnecessary by the propositions that are inherent in the verdict of the jury.
In my summing up to the jury I said that two questions arose for consideration. First, did Mr Errigo knowingly provide the premises in which a step in the production of cannabis was taken. There was no evidence of that. The second question was did Mr Errigo suffer or permit any step in the process in the production of cannabis to be taken in the premises of which he was the owner. As to the meaning of the word “permit” the jury was told that it connotes some authorisation by a person with defacto control over the land, that is, the person should either allow the conduct in question or not prevent it. As to the meaning of the word “suffer” the jury was told that the enquiry was whether Mr Errigo tolerated or allowed or permitted cannabis to be grown on his property. The dictionary meaning of the word “suffer” is “to tolerate or to allow or to permit”.
Photographs tendered at the trial show that the crop was behind a fence about 20 metres away from the back of the residence. The photographs show that work had been carried out cultivating four separate crops. A tractor had been used for ploughing and the plants were watered by an irrigation system and from a hose connected to a tap at the back of the house.
The police officers who attended at the property described a strong smell of cannabis. Mr Errigo was an occasional user of cannabis, but denied being familiar with its smell. He said he cannot smell well and has blocked sinuses. I do not accept Mr Errigo’s evidence that he could not identify the smell of cannabis, but the question of whether he could identify the smell or not is inconsequential, because it only goes to the question of whether Mr Errigo was aware of the existence of the crop. He has admitted that he knew of the existence of the crop from what his father had told him.
The verdict of the jury involves a finding that inactivity on the part of Mr Errigo amounted to suffering or permitting a step to be taken in the process of production of cannabis. If his inactivity was caused by duress Mr Errigo may have had a defence. Mr Errigo said that his father’s advice of the crop “came out of the blue” and that he did nothing because he had to respect his father’s wishes. I propose to sentence Mr Errigo on the basis that even if one accepted his evidence, which I do not, it is inherent in the verdict of the jury that any inactivity on his part after learning of the existence of the crop was voluntary.
I think it is highly unlikely that Mr Errigo did not know that the cannabis was just beyond the fence, because the fence was only about 20 metres to the rear of the house, work was carried out on the crop and the crop was watered by a backyard hose. Even if one accepted the evidence of Mr Errigo it is highly improbable that curiosity would not have got the better of him and caused him to walk 20 or so steps to the back gate to inspect the crop. I accept the Crown submission that Mr Errigo’s evidence was an improbable and incredible explanation. I do not accept his evidence.
I propose to sentence Mr Errigo on the basis that he was aware of the extent of the crop. If one rejects Mr Errigo’s evidence, as I do, the established facts give rise to an inference that at some time during the two or three occasions when he stayed at the property each week between late 2001 and the date of his arrest on 26 March 2002, Mr Errigo would have become aware of the extent of the crop.
So far as the specific disputes identified by counsel for Mr Errigo are concerned I think the first point is inconsequential. Mr Errigo’s own evidence that he stayed at the property on two or three nights each week is sufficient to make out the Crown case.
As to the second point I reject the statement that he respected his father’s position as head of the family and therefore did nothing to interfere with the crop that his father was growing. That submission is inconsistent with the verdict of the jury. Whatever his reason, Mr Errigo did tolerate, allow or permit the crop to be grown. Also, I do not accept Mr Errigo’s evidence.
Additionally, the evidence which Mr Errigo gave on this topic fell a long way short of the colourful statement that had been made by counsel. His evidence was that his father said “mind your own business, got nothing to do with you” and that he just had to respect his father’s wishes.
As to the third submission I do not accept that Mr Errigo did not know how much cannabis was grown, how big the plants were and that he never kept them under observation. Again, do not believe Mr Errigo. The established facts give rise to an inference that he knew what was beyond the fence.
One piece of evidence, which should not be overlooked, is the existence of wire hooks in the shed. The hooks are capable of being used to dry cannabis.
I propose to sentence Mr Errigo on the basis:
·He was the owner of the subject property.
·He knew of the existence of the cannabis crop.
·It can be inferred from the objective facts that he was aware of the nature and extent of the crop (I reject his evidence to the contrary).
·It is inherent in the finding of the jury that he had suffered or permitted cannabis to be grown on his property.