R v Franzi
[2016] ACTSC 283
•8 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Franzi |
Citation: | [2016] ACTSC 283 |
Hearing Date: | 10 August 2016 |
DecisionDate: | 8 September 2016 |
Before: | Burns J |
Decision: | See [19] – [23] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – trafficked in trafficable quantity of cannabis – manufacturing controlled drug – supply controlled drug to child – pleas of guilty – good prospects for rehabilitation – low risk of reoffending – sentenced to terms of imprisonment – Good Behaviour Orders imposed. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 603(5), 607(5), 625(4) |
Parties: | The Queen (Crown) Ryan Franzi (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) S & T Lawyers (Offender) | |
File Numbers: | SCC 10 of 2016; SCC 66 of 2016 |
BURNS J:
Ryan Franzi, you have pleaded guilty to four charges. The first charge is that between 1 May 2015 and 1 October 2015, you supplied cannabis to a child in contravention of s 625(4)(a) of the Criminal Code 2002 (ACT) (the Criminal Code) (Count 1). Secondly, on 18 November 2015 you trafficked in a traffickable quantity of cannabis in contravention of s 603(5) of the Criminal Code.
Thirdly, between 4 September 2015 and 18 November 2015 you manufactured a controlled drug, namely tetrahydrocannabinol, in this particular case, cannabis oil, with the intention of selling some or all of it in contravention of s 607(5) of the Criminal Code. Finally, between 8 September 2015 and 18 November 2015 you manufactured a controlled drug, namely tetrahydrocannabinol, in this case cannabis tincture, with the intention of selling some or all of it contravention of s 607(5) of the Criminal Code.
A full Statement of Facts was agreed and tendered at the sentence hearing. I will not read the Statement of Facts at this time, I will simply provide a brief summary. Between 1 May 2015 and 1 October 2015 you administered cannabis oil and cannabis tincture to your 15 year old daughter. You also instructed her to administer it to herself.
On 18 November 2015, police executed a search warrant at your home and your business premises. Police seized a number of items, including cannabis oil, cannabis tincture, and a traffickable quantity of cannabis plant material. You do not dispute that you prepared the cannabis oil and cannabis tincture.
The maximum penalty for the offence of supplying cannabis to a child is five years imprisonment, a fine of $75,000 or both. The maximum penalty for the offence of trafficking in a traffickable quantity of cannabis is 10 years imprisonment, a fine of $150,000 or both. The maximum penalty for the offence of manufacturing a controlled drug with the intention of selling some or all of it, is 15 years imprisonment, a fine of $225,000 or both.
This is something of an unusual case. At the time of these offences you were working as a naturopath. That is an occupation that requires no specific training and currently is unregulated. In late 2014, you treated yourself with what you described as medicinal cannabis for a sight problem, consequent upon an accident involving a head injury some years before. You purchased cannabis oil and a tincture of cannabis from an undisclosed location in Sydney.
The approach that you took to treating yourself as disclosed in your evidence was highly unscientific, but so long as you only administered the material to yourself, there was no risk to your customers or the general public. Unfortunately, you did not stop at administering the substance to yourself, you administered it to your daughter and to a number of your customers.
There is no evidence of the effect of this administration on your customers, but your daughter described having trouble sleeping, feeling unsteady on her feet, suffering severe headaches and feeling sad. You gave her the cannabis extract in liquid form, which she tried to avoid consuming whenever she could.
A customer of your business obtained the cannabis for you, which you then used to make distillations of cannabis oil and tincture. I accept that your primary motive for this offending was not financial. I accept that you genuinely believed that the cannabis extracts you were supplying may help people, particularly those suffering from chronic pain or terminal illness. I also accept that you believed that the legalisation of medicinal cannabis was imminent, and that you thought it would be appropriate for you to get in on the ground floor, as it were.
This is not, however, about whether the medicinal use of cannabis should be legalised, or a trial of such use should be undertaken. The fact is that the possession, use or supply of cannabis, or its extracts, remains a criminal offence in the Australian Capital Territory (the ACT). Secondly, your lack of knowledge and your lack of qualification to determine dosages and concentration made your approach the antithesis of a controlled scientific administration of the substance for medicinal purposes.
Although profit was not your primary motive, I am satisfied that you did anticipate some financial return from the supply of cannabis oil and tincture. With regard to the manufacturing charges, the offences were premeditated and involved a degree of sophistication, they also continued over a period of some months.
With respect to the charge of supply, it is relevant to observe that the supply was to a child which, of course, is an element of the charge, and involved a significant breach of your obligations as a parent. I do note, however, that it was on a very limited number of occasions. While I accept that you had no intention to cause harm to your daughter, you are not qualified to understand the potential effect of cannabis on the adolescent brain. In truth, your conduct in supplying cannabis extract to your daughter can only be described as reckless.
A Pre-Sentence Report was prepared for the purposes of the sentence hearing. You are 39 years of age and you have no previous convictions. You had a stable family upbringing, although your parents divorced when you were approximately nine years of age. You stated that you spent equal time with both parents and you maintain good relationships with your siblings, however, your relationship with your mother has become somewhat strained because of these events. As a bail condition, you have had no contact with your eldest daughter.
You are reported to have been in a stable, supportive relationship with your current partner of 14 years. You have two young children to that relationship. You own your home in the ACT where you reside with your wife and two children. You completed Year 12 and continued onto university where you commenced a bachelor of biotechnology, however, you did not complete that degree. You were, for a period of time, employed by your father at a health clinic as a naturopath, a position which you held for approximately eight years.
You do not apparently have any drug or alcohol issues. You have no documented history of mental health issues. You do have some physical impairments arising out of the accident to which I referred. You told the author of the Report that you trialled cannabis oil to resolve temporary blindness, and you said that that treatment had been a success and you regained your sight. I note, however, in cross‑examination you agreed that you simply assumed that it was the cannabis oil that had resolved the issue.
The author of the Report was of the opinion that you accepted responsibility for your actions. You also told the author of the Report that you were aware that what you were doing was illegal, and that if you were in caught you would be in trouble. It was the opinion of the author of the Report that you are a person who, notwithstanding your current offences, has led a previously pro-social lifestyle and you were assessed as being at low risk of general reoffending.
I take into account the contents of the testimonials that were tendered on your behalf. They speak of you as a good caring person dedicated to your family and also to helping others. I accept on the basis of the material before me, that you have good prospects for rehabilitation. I take into account your pleas of guilty with respect to these matters, and I am satisfied that they are early pleas. They demonstrate a degree of remorse and they also had significant utilitarian value. I take into account that you were arrested by police and that you spent one night in custody as a consequence of being arrested before you were released on bail.
As I said at the outset of these sentencing comments, this is a somewhat unusual case, however, in my opinion, it still involves significant and serious criminal offending. General deterrence is the most significant sentencing consideration with respect to this type of offending, so that it is important that sentences imposed by this Court be such as to deter others who may be minded to act in a similar way. In my opinion, sentences of imprisonment are called for. However, I am satisfied that the requirements of sentencing in this particular case, because of their unusual circumstances, will be satisfied by way of fully suspended sentences of imprisonment.
Sentence
With respect to Count 1 (charge of supply cannabis to a child), you will be convicted and sentenced to 6 months imprisonment which I have reduced from 8 months in order to reflect your plea of guilty, commencing today 8 September 2016 and expiring on 7 March 2017. There will be a Good Behaviour Order for a period of 18 months from today, 8 September 2016. I will impose no further conditions in the light of the fact that there appears to be no good reason for you to be subject to supervision at this time.
With respect to Count 2 (charge of trafficking), you will be convicted and sentenced to 5 months imprisonment which I have reduced from 7 months in order to reflect your plea of guilty, which will commence on 8 November 2016 and expire on 7 April 2017. This sentence will also fully suspended with a Good Behaviour Order for a period of 12 months from 8 November 2016.
With respect to Count 3 (charge of manufacturing cannabis oil), you are convicted and sentenced to 9 months imprisonment which I have reduced from 12 months, commencing on 8 December 2016 and expiring on 7 September 2017. This will be fully suspended and there will be a Good Behaviour Order for a period of 12 months from 8 December 2016.
With respect to Count 4 (charge of manufacturing cannabis tincture), you are convicted and sentenced to 9 months imprisonment, again which I have reduced from 12 months in order to reflect your plea of guilty, commencing on 8 December 2016 and expiring on 7 September 2017. That will also be fully suspended with a Good Behaviour Order for a period of 12 months from 8 December 2016.
I have therefore imposed an aggregate sentence of 12 months imprisonment which is fully suspended with Good Behaviour Orders for that period of 18 months from today, 8 September 2016. If you commit no further offences within that period of 18 months, then there is no reason why you will be required to serve those sentences of imprisonment, however, if you commit some further offence within that 18 month period then you will be brought back before this Court to be dealt with on a breach of these orders, at which time you may be required to serve some or all of those sentences of imprisonment.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 27 September 2016 |
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