R v Macphee

[2008] NSWDC 290

CITATION:	R v MACPHEE [2008] NSWDC 290
HEARING DATE(S):	December 1- 2, 2008
JUDGMENT DATE:	2 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ at 20
DECISION:	Guilty of deemed supply
CATCHWORDS:	CRIMINAL LAW - particular offences - drug offences - possession - for sale or supply - Judge alone trial
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
PARTIES:	Regina Michael MacPhee (Accused)
FILE NUMBER(S):	2008/00008167
COUNSEL:	Mr M Fernandez (Crown) Mr B Galloway (Accused)

JUDGMENT

1. On 28 November 2008, the accused was arraigned on two counts. He pleaded guilty to the offence that, on 9 October 2007 he cultivated a commercial quantity of cannabis (56 plants). He pleaded not guilty to the offence that, on the same date he supplied cannabis leaf. The Crown alleges a "deemed supply", i.e. that the accused was in possession of 354.7g of cannabis leaf, a quantity in excess of 300 g, the "trafficable quantity" for cannabis leaf.

2. In relation to the "deemed supply" count, on 27 November 2008 the accused elected to be tried by a judge alone and DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from his barrister.

Overview

3. On 9 October 2007, police executed a search warrant at a house rented by the accused.

4. The accused showed police to a concealed room under the house that was entered via the garage. In the room, 20 substantial cannabis plants were being cultivated utilising special lighting and a drip system. In an adjoining area, there were fertilisers and pH balancing chemicals. Next to the cultivation room was an area containing ropes from which cannabis could be hung to dry. Beneath the ropes, was a plastic tarpaulin. There were cannabis remnants on the tarpaulin. Upstairs in the house, the accused showed police a cupboard in which 36 cannabis seedlings were being cultivated under lights. The 20 large plants and 36 seedings are the subject of the cultivation count.

5. In a tin within a kitchen cupboard, police found 19 g of cannabis and two "bongs". Inside a small freezer in the laundry, they found a ziplock bag containing 335.7g of frozen cannabis leaf. These two quantities of cannabis leaf are the subject of the "deemed supply" count.

6. I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict on the count of "deemed supply".

Elements to be Proved by the Crown

7. There was no dispute as to the elements of the offence that the Crown must prove beyond reasonable doubt. They are that:

(a) the accused was in possession of the substance in the tin and laundry freezer;
(b) the substance was the prohibited drug cannabis leaf; and
(c) the cannabis leaf weighed more than 300 g, the "trafficable quantity" for cannabis leaf.

8. A person has possession of a substance if, at the relevant time, he or she intentionally has exclusive dominion or control over the substance, or has the ability to control it to the exclusion of others. The accused occupied the main bedroom of the house and there appeared to be no other permanent occupant (paras 50 and 51of Senior Constable Willard's statement). In evidence, the accused said that he grew cannabis leaf in the cupboard and under the house for personal use as he was a heavy cannabis user. He said that he stored a substantial quantity in the freezer in order to preserve it. Those facts satisfy me beyond reasonable doubt that the accused possessed all the cannabis located within and under his house in the sense that he intentionally exercised exclusive control over the cannabis.

9. The analyst's certificate of Ms Debevec satisfies me beyond reasonable doubt that the substances located in the tin and the laundry freezer were cannabis leaf and that the combined weight of cannabis leaf was 354.7g (19g and 335.7g).

Whether the Cannabis was for Personal Use

10. The accused sought to satisfy the Court on the balance of probabilities that the cannabis leaf located in the kitchen and laundry was in his possession for a purpose otherwise than for supply, i.e. for personal use.

11. As to the cannabis located in the tin, I am satisfied on the balance of probabilities that it was for personal use. It was a relatively small quantity. It was in a readily accessible location next to two "bongs".

12. However, as to the cannabis located in the laundry freezer, I am not so satisfied.

13. First, all the cannabis located at the premises must be taken into account. The accused was in possession of seedlings. It was his practice to identify the more productive female seedlings and cultivate them to full maturity under the house. Female seedlings were selected as they produced "head", the premium (more intoxicating) part of the plant. The cultivation system under the house had the capacity to operate 24 hours a day, seven days a week. Next to the cultivation room, there was a drying area. The accused had travelled to Canberra to acquire appropriate equipment and had expended $1400 on the lighting alone. The accused conceded that the cannabis leaf in the laundry freezer derived from an earlier crop cultivated under the house. In other words, various areas of the house had been set up at considerable effort and expense to take a cannabis crop from seedling to high quality final product. The accused's assertion that that he cultivated only one crop a year lacks credibility.

14. Second, in a hall stand police located $20,000 in a heat sealed plastic bag and $20,950 in $1000 bundles. The possession of a large quantity of cash is consistent with illegal activity. The accused asserted that part of the money derived from a large sum that his daughter paid to him in September 2001 for the purchase of a patent (Exhibit 1). I do not accept that the accused kept any cash proceeds of that transaction in his home for six years. The accused said that, while he was working as a baker up to November 2006 (when he sold his patisserie), he took cash drawings in $1000 lots and kept the cash at home. I do not accept that the accused kept large sums of legitimately acquired cash at home for almost 12 months. The risk of theft and financial imprudence of keeping large amounts of cash rather than investing it are obvious.

15. Third, the accused's bank account into which the proceeds of sale of his patisserie business were ultimately deposited (contrary to the suggested propensity to keep legitimately acquired funds as cash) shows that, in the three-month period from 19 June to 19 September, the only withdrawals were monthly payments for pay TV and Internet access. There were no withdrawals from the account for other living expenses and no evidence of withdrawals from any other account. The accused was unemployed between November 2006 and October 2007. This circumstance is consistent with the accused earning income from an illegitimate source.

16. Fourth, the accused maintained that he smoked 2-2.5 oz (56 - 60 g) of cannabis per week, in effect accounting for all the cannabis at his premises. He said that he smoked about 15 joints and a couple of "bongs" a day. Taking into account that the accused produced premium quality cannabis, the asserted consumption is prodigious, and I do not accept that it occurred.

17. The accused argued that no indicia of supply were found at the house. I do not agree. Police located digital scales, re-sealable plastic bags and a heat sealer in the dining room cabinet (rather than the kitchen).

18. Finally, the accused relied on the fact that the cannabis located in the laundry freezer was in one bag (rather than divided up for easy sale) and was frozen (hence not readily divided for sale). The manner in which the cannabis was held is neutral. It is not inconsistent with an intention to supply. There may have been an intention to supply at a later date or to make a bulk supply.

19. I am far from satisfied on the balance of probabilities that the cannabis located in the laundry freezer was for personal use.

Verdict

20. I find the accused is guilty of count 2, "deemed supply".