R v Keith John Date No. SCCRM 96/153 Judgment No. 5702 Number of Pages 3 Criminal Law Cultivation of Cannabis

[1996] SASC 5702

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL COX(2), PERRY(1) AND LANDER(3) JJ

CWDS
Criminal law - cultivation of cannabis - appeal against a sentence of imprisonment for 15 calendar months with a non-parole period of 10 calendar months imposed on a 60 year old man found to have cultivated 25 cannabis plants in a shed at the rear of his house it was accepted that the cultivation did not involve a commercial purpose, although the appellant anticipated that, when harvested, he would share the crop on a social basis with others - observations as to the appropriate penalty for non-commercial cultivation of a small quantity of plants - appeal allowed and sentence of seven months' imprisonment substituted. Controlled Substances Act 1984s32(1)(a), referred to. Collins v R (1995) 183 LSJS 69; Kelly and Bates v R CCA, 12 December 1995, unreported, Judgment No.5384; R v Hunter CCA, 18 July 1995, unreported, Judgment No.5184; R v Carbone (1984) 36 SASR 306, considered.

HRNG ADELAIDE, 18 June 1996 #DATE 19:7:1996 #ADD 29:10:1996
Counsel for appellant:     Mr B Nitschke
Solicitors for appellant:    B M Nitschke
Counsel for respondent:     Mr S Mcewen
Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon him in the District Court on an admitted charge that on 26 March 1995 at Enfield he knowingly produced a prohibited substance, namely, cannabis contrary to s32(1)(a) of the Controlled SubstancesAct 1984.
2. The appellant was sentenced to imprisonment for a term of 15 calendar months, with a non-parole period of 10 calendar months. The operation of the sentence was suspended upon the entry by the appellant into a bond in his own recognisance in the sum of $1,000 to be of good behaviour for a period of three years.
3. The appellant is a 60 year old divorced man who shares his home with his brother-in-law.
4. On the date in question, police officers found in a shed at the rear of the premises a quantity of cannabis plants under cultivation in plastic pots. There were some 25 plants in all, 13 large plants, described as "very spindly in habit", and 12 described as "juvenile".
5. The larger plants were capable of yielding on maturity about two kilograms of cannabis.
6. When questioned, the appellant readily agreed that the plants were his, and that he alone had cultivated them. He said that he was given the seeds by someone in an hotel. He denied that he was growing them for any use other than his own personal use, with the qualification that as the crop would very likely have exceeded his own requirements, he intended to give some of it away.
7. It was put to the learned sentencing judge that the appellant's cultivation of the drug was prompted by the fact that he had suffered a serious motor vehicle accident some years before which left him with headaches and an inability to sleep. These symptoms, he found, were relieved by his consumption of cannabis.
8. At the hearing, the Crown initially asserted that the cultivation involved a commercial element. When this was disputed by the appellant, the Crown eventually resolved the matter on the footing that it accepted the appellant's contentions.
9. The number of plants involved, namely 25, exposed the appellant to a maximum penalty of a fine of $50,000 or imprisonment for 10 years or both. (See s32(5)B(a)(ii) and also ss(5a)(a) of the ControlledSubstances Act 1984.)
10. There is one ground of appeal, namely, that the sentence imposed was manifestly excessive.
11. In his sentencing remarks, after expressing some scepticism at the account given by the appellant as to his purpose in cultivating the plants, the learned Judge indicated that he accepted that account only because of the concession made by the Crown.
12. Counsel for the appellant referred to several decisions of this Court dealing with appeals against convictions for cultivation for non-commercial purposes.
13. In Collins v R((1)(1995) 183 LSJS 69), where there were 35 plants involved, a sentence of 10 months' imprisonment, suspended on a good behaviour bond, was quashed and a fine of $2,000 substituted, with a direction for the performance of community service work.
14. In Kelly and Bates v R((2) Court of Criminal Appeal, 12 December 1995, unreported, Jgt No S5384) there were 56 plants involved, but because they were such poor specimens it was likely that on maturity they would have yielded less than a kilogram of cannabis for each plant. In that case, it was suggested that although there was no commercial basis, the cannabis might well have been shared with others in what was described as "a context of social supply". This Court reduced the sentence of 20 calendar months imposed at first instance to 10 calendar months' imprisonment, suspended with a condition as to community service.
15. In R v Hunter((3) Court of Criminal Appeal, 18 July 1995, unreported, Jgt No S5184) there were 29 plants grown for personal use, as a co-operative venture with others. The head sentence of nine months' imprisonment imposed in that case was described as severe, but not manifestly excessive.
16. As was pointed out in R v Carbone((4) (1984) 36 SASR 306), the circumstances in which this offence can be committed vary enormously, and one should be careful about making too nice a comparison with other cases. For that reason, I would ordinarily be reluctant to interfere.
17. The Crown concedes that the sentence of 15 months' imprisonment was severe. In my opinion, it was so severe as to be out of line with the appropriate sentencing standard, particularly having regard to the recent decisions of this Court to which I have referred.
18. In my opinion, the sentence of imprisonment imposed by the learned sentencing Judge should be quashed, and a term of imprisonment of seven calendar months substituted. There is no requirement to fix a non-parole period for a sentence of that duration.
19. I would not interfere with the suspension or the terms of the bond upon which the term of imprisonment should be suspended.

JUDGE2 COX J In my opinion this appeal should be allowed. The sentence of fifteen months' imprisonment, with a non-parole period of ten months, should be set aside and instead a sentence of seven months' imprisonment imposed. The sentence should in other respects be affirmed.
2. I agree with the reasons of Perry J.

JUDGE3 LANDER J I agree with the reasons given by Perry J and the order His Honour proposes.