R v Hughes

[2005] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HUGHES

Reasons for Ruling of His Honour Judge Tilmouth

1 September 2005

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - IN MINOR QUANTITIES OR FOR PERSONAL USE

Disputed facts hearing over amount in possession of cannabis for sale or personal use.

Controlled Substances Act 1984 (SA) s 37(1)(e), 32(2), referred to.
R v Selita [2004] SASC 292; R v Leung & Monagham (1999) 202 LSJS 243, considered.

R v HUGHES
[2005] SADC 119

1. Steven John Hughes initially pleaded not guilty to one count of possessing cannabis for sale, the particulars of the offence being that on the 19^th day of October 2004 at 2 Sextant Avenue, Seaford he knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person,[1] the amount of the cannabis being in excess of two kilograms. 

   [1] Contrary to s 32(1)(e) of The Controlled Substances Act 1984.

2. On the morning this matter was due for trial he changed his plea from not guilty to guilty.[2]  By that plea he was prepared to admit the charge on the basis that the cannabis was “principally for [his] own use” but that it was in his contemplation to sell “a couple of ounces, perhaps getting about $500 which would assist with the income for the cost of producing”.[3]

   [2] Trial was due to commence on Monday 22 August 2005.

   [3] Transcript P8 L29-32.

3. This basis was unacceptable to the prosecution whose position was that a substantial quantity of the drug in possession was for the purposes of sale.[4]  On this basis both the prosecution and defence counsel considered it appropriate to embark upon a disputed facts hearing which I did.  For that purpose Detective Fenton was called to supplement his declaration which was tendered before the Court[5] and Mr Hughes gave evidence in support of the basis of the plea just mentioned.

   [4] Transcript P2 L37 – P3 L7.

   [5] Exhibit P2.

4. I must confess to having entertained doubts about the plea of guilty on this basis being open given the statutory presumption which presumed him to have that drug in his possession for the purpose of sale.[6] At first sight the plea seemed to be an attempt to rebut the presumption with respect to that part of the quantity of 100 grams, by means of a plea in mitigation.[7]  Despite some misgivings I proceeded to accept the plea and embarked upon the disputed facts hearing.[8]

   [6] Controlled Substances Act 1984 s32 (3).

   [7] R v Selita [2004] SASC 92 at 44 citing R v Collins (1993) 67 A Crim R 104 at 106 (WA).

   [8] This seemed consistent with the approach of the majority in R v Selita (above) per Gray J at [109], Nyland J agreeing, Transcript P26, Lines 1-17; P123, L13 – P126, L36.

5. When the cannabis was first taken from his house where it was grown in a rear shed, it comprised of the slightly moist female cannabis material weighing 3671.5 grams, excluding a rubbish bin full of mostly cut stem pieces.[9]  The latter material was not of commercial grade.[10]When examined again on 9 August 2005 that same material weighed 1952 grams.[11]  A brief explanation for this difference is that the material had dried over a period of time; these respective weights were referred to during the course of submissions and in these remarks as the ‘wet’ and ‘dry’ weights respectively.

   [9] Exhibit P5 certificate 20 October 2004.

   [10] Transcript 96, Line 36- 97, Line 8.

   [11] Exhibit P5 certificate 9 August 2005.

6. The significance of the difference is that for the purposes of the deeming provision, the weight to be taken into account is the ‘wet’ weight found on seizure of the material from the home; after that the deeming provision has no further work to do.[12]  Upon the plea of guilty “different considerations then” arise[13] and a highly relevant matter in the exercise of the sentencing function becomes the amount of cannabis available for sale, which in this case the prosecution have fairly concluded should be no more than 1.952 kilograms. [14]

   [12] See R v Selita above at [54] and [96].

   [13] See R v Selita above at [56].

   [14] Transcript 119, L31; 120, L12; referred to in R v Selita (above at [26]) as the ‘dry saleable quantity’.

7. The central issue in dispute then is whether only a small portion, some or most of the 1.952 kilograms, was intended for sale, or for personal use.  The prosecution have correctly conceded that it must prove to the satisfaction of the Court beyond reasonable doubt the level of drug intended for sale.[15]

   [15] Transcript T5, L7; Transcript 95, Line 16-29; 123, Line 24, R v Selita above at [56] and [83], Anderson v The Queen (1993) 177 CLR 520, 536; R v Albrich (1999) 199 CLR 270; R v Nguyen [2004] SASC 405.

8. The uncontested circumstances are that a number of police attended the house of Mr Hughes at 8.42am on the day in question.  He spoke to them first at the front door, where he was told they had information there was cannabis on the premises and he virtually conceded as much immediately.[16]  The police were shown to the rear yard and into a large colorbond shed which he erected with money loaned in June 2003.[17] They found “purpose built rooms” within – used for growing and drying cannabis. There were also three garbage bags, each containing cannabis leaves and stalks. [18] Detective Fenton’s evidence was that these three bags comprised root, stalk, stem and stem leaf which “just isn’t used” for the purposes of sale.[19]  Of course it could be used for smoking and this material forms part of the ‘production process’[20] in the offence, but is not of itself an aggravating component of the amount of cannabis available for sale.

   [16] The Record of Interview Exhibit P3 ‘SJH8’, Q & A 43 and 55.

   [17] Transcript 40, Lines 5-41.

   [18] Exhibit P2, page 2.

   [19] Transcript 29, L22.

   [20] The Queen v Leung & Monaghan (1999) 202 LSJS 243.

9. The police found a relatively sophisticated, well-organised, well-equipped and well constructed hydroponic set-up. The evidence is fairly conclusive that three cannabis plants were grown. Mr Hughes co-operated in showing the police around the shed and the house which was thoroughly searched.  More importantly there was a separate drying room where the female flowering heads were found to be drying with the assistance of fans and special lighting.[21] 

   [21] Exhibit P1, photographs 15-17; Transcript 26, Line 1-14.

10. It was the submission for the prosecution that although he may have grown cannabis in the past, on this occasion he faced an unexpectedly large yield which left him with a large excess clearly designed for the marketplace.[22] Mr Hughes was  knowledgeable grower of cannabis,  reflected by the sophistication of his hydroponic equipment, the fact that he had grown at least seven crops each apparently involving several plants in years gone by, and had a network of associates knowledgeable in hydroponic cannabis growing. The proper inference in all the circumstances according to the prosecution, is that he was committed to maximising the yield for profit.[23]

    [22] Transcript 105, Line 37; 106, Line 2.

    [23] Transcript 106, Line 3-21.

11. The gist of the evidence by Mr Hughes was that he was a consistent marijuana user since the age of eighteen, that he would smoke up to five one gram joints a day during the week and up to ten on each weekend day.[24]  Nevertheless he continued to keep himself fit by walking his dogs, exercising in a gym in his home, doing outdoor labouring work and keeping himself generally  healthy.  His evidence was that he had an exceptionally good crop this time and was planning to keep the bulk of the material for his own use until it had run out (even though it might have lasted some 40 weeks or so)[25], that he would not grow another crop over the following summer and he formed the intention to sell only a few ounces.

    [24] Transcript 42, Line 27; 8, Line 6.

    [25] Transcript 107, Line 34.

12. So far as his evidence in the witness box was concerned, I was unable to detect by the manner or content of that evidence, and his demeanour  (so far as one can judge from these considerations) anything that undermined his version of events.  He remained steadfast throughout cross-examination and was consistent.  He was remarkably forthright,  disarmingly so on some occasions, as he gave evidence against his interests on several topics. They included the fact that he had illegally used marijuana consistently over a number of years in the past[26], that he mixed with a circle of friends with whom he used marijuana from time to time and he proposed to give them some to smoke of this lot as well,[27] that he had especially assembled the electronics for the operation with assistance for which he paid a small amount of money,[28] that he earned income outside his regular employment,[29] and he told the police a number of lies concerning whether he grew from seeds or plants and as to his associates[30] and finally that he would “pay back in kind’[31] other people who had given him marijuana. 

    [26] Transcript 42, Line 27; 8, Line 26; 63, Line 30; 66, Line 8.

    [27] Transcript 50, Lines 1-13.

    [28] Transcript 62, Lines 33-36; 66, Lines 22-34.

    [29] Transcript 78, Lines 10-24.

    [30] Transcript 61, Lines 33-62, Line 17; 82, Lines 15-33.

    [31] Transcript 83, Lines 22-34.

13. In particular, Mr Hughes was most frank in his evidence concerning his degree of knowledge concerning the legality of growing the plants. The statutory regime is both complicated and difficult to follow.  Whilst it appears from the material submitted by the prosecution, the growing of three plants of marijuana was an expiable offence involving a fine of some hundred of dollars from 1987 to 1992, between 1992 and 2000 it was an exculpable offence to grow up to ten plants, then the position reverted to three plants again from 2001 or thereabouts, and in November of 2001 it became an exculpable offence for just one plant.[32]  Neither counsel nor the Court for that matter was precisely sure about these changing statutory prescriptions.[33]  But Mr Hughes nevertheless frankly conceded in his evidence that he was participating in an illegal activity at a time when, to quote him,  “I think it was the law when he could have three plants and later on it changed in that time.  I have been doing it for a while and got used to it so I kept going,”[34] a confession very much to his credit. 

    [32] SA Government Gazette 29/11/01, page 5250.

    [33] Transcript 145, Line 17; 146, Line 16.

    [34] Transcript 81 Lines 15-18.

14. This involves an admission that whatever the statutory regime might have been precisely, he well knew it was illegal to grow three plants since around late 2001, but he continued to do so.  This factor compounds the degree of culpability; yet as a matter of assessing his credit-worthiness, it stands him in good stead.

15. The Crown then directed attention to the objective facts in order to persuade the Court that his version of events should be rejected.  It seems clear enough that he was an experienced grower of cannabis; that appears to be a product of accumulated knowledge.  Although the system involved here was clearly sophisticated, perhaps even meticulous, it is not inconsistent with him having grown substantially for his own use.  It is also just as consistent with the desire to produce quality rather than quantity.  It also appears the equipment he had could easily have supported a far more substantial crop.  Then it is said the heavy level of usage he allegedly maintained over the years is inconsistent with his high degree of fitness. There is some force in this, however as an active and relatively young man of 36 years, this does not seem to be a weighty matter.  Next it was put that there was no equipment commonly associated with the consumption of cannabis, such as pipes, bongs, small containers of cannabis in the house and so on.  It was his evidence that he would roll cigarettes using “rolly papers” and filters for this,  packets of which were found in the house.[35]  This is consistent at least in small part, with his version of the events.  Likewise, a ‘Tupperware’ container like the one he described in evidence for storage of marijuana was also located.[36] There was no record one way or the other of a tin that he said he also used to store marijuana.[37] 

    [35] Declaration of Christopher Casey 22/8/05, pages 2-4.

    [36] Transcript 60, Lines 21-38; 61, Lines 19-26; 69, Lines 30-70, Line 9, 113, Lines 24-36; Declaration of Christopher Carey    22/8/05, page 2.6.

    [37] Transcript 70, Lines 19-71, Line 20.

16. It is also said that this was such a yield so as to be unlikely to have been kept for self use because the profit motive would have been too great.  Unlike many cases coming before the Court like this,  there is no evidence here at all of a pressing financial need or of any other financial burden which might have tempted him into commercial production and sale.  In fact his financial position is and was quite sound[38].  He has been in his current employment for over ten and a half years, earned a regular, moderate income of at least $400 and $500 per week from that source, plus more in recent times from other work,[39] he holds a not inconsiderable equity in the home,[40] and he has regularly paid off the mortgage together with the loans he took out. The home is a modest one, as is the car he purchased using one of those loans.[41] The electrical and other items found in the house are of extremely modest value. [42] There were none of the trappings of sale[43] present anywhere on the premises which could possibly be said to be the product of any of unexplained wealth and which might have otherwise indicated any clearer to the Court he had any of the usual proceeds of commercial sale in his possession.[44]  It was submitted in connection with this point that he stood to profit up to about $25,000 on this round of growing.[45] As I said there were no financial imperative and correspondingly no evidence of illegal gains. 

    [38] Transcript T42, Lines 12-17; 8, Lines 22-49, Line 38; 133, Lines 26-34;  59, Lines 7-14, 77,  Line 31-78, Line 21.

    [39] Transcript 42, Lines 12-20; 37, Lines 11-39, Line 8, Transcript 155 Lines 11-16.

    [40] Transcript 39, Lines 27-41; Lines 15, 49; Lines 21-38.

    [41] Transcript 78, Line 28.

    [42] Transcript 78, Lines 32-79, Line 29.

    [43] Statement David Hunt 6/8/07, page 7; Transcript 133, Lines 26-34.

    [44] These are noted in Exhibit P7, page 7.

    [45] Transcript Page 109, Line 3; 113 Lines 13-36.

17. It was also submitted quite strongly that the reason he gave evidence confessing to having grown crops in the past was that was the only ‘convenient’ way of explaining the high consumption of electricity on a regular basis, which showed a consistent pattern of use over the period from April 2001 until January 2005, including the summer months.[46] There is also great deal of force in this submission but I do not regard it as inevitable that he would have had to explain it by the growing of marijuana.  He could have insisted upon being a heavy consumer of reverse cycle air conditioning for instance or put up some other possible explanation.  There were a number of other potentially “innocent” explanations and I find this another example to his credit because he did not try to seek out some spurious but possible explanation.

    [46] Transcript 56, Lines 23-57, Line 38; 115, Lines 33-116, 14, Exhibit P6, Page 3.

18. Finally, it was suggested that the absence of both the paraphernalia of sale and the apparatus of consumption[47] was indicative of his role being part of a syndicate, pooling together cannabis for packing and sale interstate.  However there is simply no evidence supporting any connection of that kind.

    [47] Transcript Page 110, Lines 8-25, Exhibit P7, Page 7-9.

19. For all these reasons I am simply left in a state of mind where I am far from satisfied beyond all reasonable doubt that the use of 1.96 kilograms of cannabis was in the most part for sale or commercial use.  I propose to proceed to sentence Mr Hughes on that basis.