R v Mills - [2005] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v MILLS
Reasons for Ruling of His Honour Judge Robertson
20 October 2005
CRIMINAL LAW
DISPUTED FACTS
Defendant pleaded guilty to two counts of producing cannabis - dispute regarding the sex of the cannabis plants and the potential yield of the plants - refusal to consider the public policy discretion and the general unfairness discretion on an application to have evidence of a Forensic Scientist excluded.
Controlled Substances Act 1984 ss32(1)(a), 51; Criminal Law (Sentencing) Act 1988 s6, referred to.
Bunning v Cross (1977-78) 141 CLR 54; Driscoll v The Queen (1977) 137 CLR 517; R v Anderson (1992) 60 SASR 90; R v Clarke (2003-04) 87 SASR 203; R v Lobban (2000) 77 SASR 24, applied.

R v MILLS
[2005] SADC 144
JUDGE ROBERTSON
CRIMINAL JURISDICTION

The Defendant has pleaded guilty to two Counts of producing cannabis contrary to Section 32(1)(a) of the Controlled Substances Act 1984 (“CSA”). A dispute of facts has arisen with regard to the second charge. This charge involves sixty cannabis plants which the Defendant was growing on his property at Forest Range. The Defendant’s plea of guilty is on the basis that part of the harvested cannabis from the crop would have been sold. The Crown alleges that:
·each of the cannabis plants were female cannabis plants;
·the potential yield of dry useable cannabis material from each of the female plants would have been about 1767 grams.
Each of these allegations is disputed by the Defendant.
The hearing proceeded on the basis that these are circumstances of aggravation as the potential yield is relevant to the degree of criminal culpability involved in the commercial aspect of the crop.
The Crown relies upon the evidence of Ms Tanya McKew, a Forensic Scientist with the Forensic Science Centre, to prove both of these matters. The Crown also relies upon the evidence of Professor Michael Rumsewicz, who undertook a statistical analysis of random sampling of twenty five cuttings from the plants located on the property to support its contention that each plant was female. I now turn to consider the first issue.
On 7 April, whilst the Police were attending at the Forest Range Property, Ms McKew was called out to the property. She attended. Ms McKew walked through the crop which was growing in the pots and hessian bags in a gully. She said that she could not recall any male plants in the crop. It was her evidence that male flowers are quite distinctly different from female flowering plants, and she described the differences. She said that because of the brightness of the yellow in the male flower it is relatively easy to recognise amongst all the green of the plants. Ms McKew said that she was present after the Police Officers had removed all of the plants from the growing area and had laid them out on the driveway of the property. She said that she also observed the plants on the driveway.
At the time, Ms McKew was an Analyst appointed by the Governor pursuant to Section 51 of the CSA. As part of her duties as an Analyst, Ms McKew later received from the Police twenty five “snip and save” samples from plants in the crop at Forest Range. In addition, she received a further three samples. She analysed these samples and concluded that they were all from female plants. She was given to understand, by the Police, that the samples were randomly selected.
The Crown also relied upon the statistical evidence of Professor Michael Rumsewicz, contained in a Report of Statistical Analysis of Random Sampling dated 24 June 2005. It is difficult to comprehend all the matters raised in the Report. It really needed oral evidence to supplement the Report. In any event, it does not matter. The opinions expressed in the Report were based upon the premise that the twenty five samples of female plants were randomly selected from the sixty plants. As it turned out, the Crown could not establish this. Constable Sweetman gave evidence that he took some of the samples by simply moving from one plant to another in the line of plants laid out in the driveway. He could not say how many samples he took. He said other Police Officers also obtained some of the samples. He said he did not observe them taking the samples. In my opinion, his evidence does not prove that all of the samples were randomly selected. Accordingly, as the premise of random samples is not established, the evidence of Professor Rumsewicz cannot be of assistance.
Mr Lister, Counsel for the Defendant, submitted that I should not use the evidence of Ms McKew regarding her observations at the property of the Defendant on 7 April 2004. He submitted that she was not authorised to be on the property at that time and, therefore, her presence was illegal as she was a trespasser. He submitted that the evidence should be excluded by the exercise of the public policy discretion. He also submitted that it should be excluded on the grounds of unfairness because the Police had destroyed all of the plants on 8 April 2004 and, therefore, the Defendant had lost the opportunity to challenge this evidence by having each of the plants analysed. The Police had done this in accordance with the provisions of the CSA. I took Mr Lister’s submission to be that the evidence should be excluded in the exercise of the general unfairness discretion. (R v Lobban (2000) 77 SASR 24 at 51.) It was conceded by Mr Alessandrini, Counsel for the Crown, during the course of submissions, quite properly in my opinion, that Ms McKew was not authorised to be on the property on 7 April 2004.
The Dispute of Facts Hearing proceeded on the basis that the public policy discretion, and the general unfairness discretion, could be applied to evidence relevant to the sentencing process. The Crown did not submit that the discretions had no application to evidence. I have reached the conclusion that the public policy discretion, and the general unfairness discretion, cannot be applied to exclude evidence relevant to the sentencing process.
The application of both discretions are, in my opinion, only relevant to the trial process of an accused. The public policy discretion involves the weighing of two competing public policy issues, namely the object of bringing to conviction an offender, and the undesirable effect of Courts approving of unlawful and improper conduct by law enforcement agencies. (Bunning v Cross (1977-78) 141 CLR 54 at 74.) The basis of the general unfairness discretion is to make sure that an accused receives a fair trial. The presence of the discretion is to enable a Judge presiding at a criminal trial to exclude admissible evidence which would operate unfairly against an accused. (Driscoll v The Queen (1977) 137 CLR 517 at 541.)
The view I take about the non-applicability of the discretions to evidence given in the course of the sentencing phase is, in my opinion, reinforced by the terms of Section 6 of the Criminal Law (Sentencing) Act 1988. That section provides that, for the purpose of sentencing, a Court is not bound by the rules of evidence and may inform itself on any matters relevant to the determination as it thinks fit. The sentencing process goes so far as to permit Courts to have regard to matters which would be inadmissible at common law. (R v Anderson (1992) 60 SASR 90 at 107-108.) It is clear that different rules apply to the trial process and the sentencing process.
Finally, I have not sighted any authority which suggests that either discretion is relevant to the sentencing process or to a Disputed Facts Hearing being conducted in the course of the sentencing process.
Accordingly, for the reasons I have expressed, neither the public policy discretion or the general unfairness discretion have any application to the evidence given by Ms McKew. In my opinion, I am entitled to take into account the evidence of Ms McKew in considering whether the Crown has proved as a circumstance of aggravation that each of the sixty plants were female.
For the sake of completeness I should finally add that, in any event, the public policy discretion could never apply to the evidence of Ms McKew, who is a Forensic Scientist. The public policy discretion is only enlivened where there is some impropriety or illegality on the part of law enforcement authorities. (R v Clarke (2003-2004) 87 SASR 203 at 211.)
Whilst I am prepared to consider the evidence of Ms McKew in determining the basis upon which I am to sentence the Defendant, I am not satisfied beyond reasonable doubt that all of the sixty plants were female. I found Ms McKew to be a truthful and generally reliable witness. However, in giving her evidence she was relying upon her memory of events which occurred a considerable time ago. She walked in the crop whilst it was in situ. Her evidence does not go so far as to say she examined each plant. She also viewed the plants when they were laid out. Again, her evidence does not go so far as to say that she inspected each plant individually. I accept her evidence that the flower of the male plant is a flower quite distinctive from the flower of the female plant. However, the evidence does not go so far as to indicate that each plant was flowering. I cannot exclude as a reasonable possibility that there may have been some male plants present which she failed to identify.
Whilst I cannot exclude as a reasonable possibility that Ms McKew may have failed to identify some male plants, her evidence can be relied upon to the extent that I am satisfied beyond reasonable doubt that a large proportion of the plants were female. It is upon this basis that the Defendant will be sentenced.
I now turn to the second issue, namely, that the potential yield of the dry useable material from each of the female cannabis plants would have been approximately 1767 grams. Again, the Crown relied upon the evidence of Ms McKew.
Whilst in attendance at the Defendant’s property on 7 April 2004, Ms McKew stripped one of the sixty cannabis plants of its head and leaf material and took it to the Forensic Science Centre. She did this for scientific reasons and for the purpose of analysis. She then dried the material. When the drying process had been completed she weighed the dry useable material and recorded its weight at 1767.5 grams. She said that the plant was selected at random as a representative sample of the crop. It was her evidence that she would expect each of the female plants of this crop to yield similar quantities of dry useable material.
This evidence was additional to the evidence in her initial Declaration. In that Declaration Ms McKew stated that the potential yield of each of the plants would have been at least 300 grams of dry useable material. In her evidence Ms McKew said in stating that each plant would yield “at least 300 grams” she was using the figures arising from a study by a botanist in the Forensic Science Centre some fifteen years ago. She relied on a table contained in that study which indicated that a plant of more than 1.5 metres in height and bushy would, upon maturity, yield greater than 300 grams of dry leaf and flower material. It was her opinion that this was a very conservative estimate. Ms McKew said it was a low figure to apply in the present circumstances because of the size of the plants in this crop, which she estimated to be between two and three metres.
Mr Lister, Counsel for the Defendant, said that I should exclude this evidence when considering the basis upon which to sentence the Defendant. He said that not only was Ms McKew a trespasser at the time that she took possession of the stripped material, but it was unlawful for her to take possession of the material she extracted from the plant. Ms Mckew was relying upon her appointment as an authorised analyst. However, that appointment did not give her authority to remove the leaf and flowering material from the Defendant’s property. Mr Lister’s submission was that, in the exercise of the public policy discretion, the evidence should be declared inadmissible.
I have already expressed the view that the public policy discretion has no application to evidence given in the sentencing process. Furthermore, in any event, the public policy discretion has no application to evidence given by Ms McKew.
In my view, it is relevant to consider the evidence of Ms McKew. However, I have formed the view that the evidence of the weight of the dry useable material from the stripped plant should not be used as the basis for calculating the total potential yield of the crop. Ms McKew’s evidence was that the plants were two to three metres in height. But there is other evidence which is in conflict with her estimate. For example, Constable Johnstone stated that some of the plants were 1.5 metres to two metres in height and some of the plants were as tall as two and a half metres. That evidence casts a shadow of doubt over the evidence of Ms McKew that the plant she stripped was representative of the plants in the crop. She said that the plant was 2.7 metres in height. I am not satisfied that the plant was representative of the other plants in the crop. I am not prepared to use the weight of that plant to undertake a fairly precise calculation of the potential yield of the crop.
Although I am not prepared to use the weight of the stripped material as the basis for calculating the yield, I am prepared to rely upon the evidence that the estimate of 300 grams per plant was very conservative. I accept the evidence that the plants were very large, ranging from 1.5 metres to 2.5 metres and some possibly a little higher. They were bushy plants. Apart from the evidence, the photographs also depict bushy plants. The stripped plant provides some assistance in considering the likely yield. Whilst I am not prepared to place a precise figure on the potential yield from the plants, I am satisfied that it would have been large. If it was accepted that half the plants were female and half male (and I have not done so), and used 300 grams per bush as a potential yield, then the calculation would be nine kilograms. On my findings, the yield from this crop would have been far larger than nine kilograms.
Accordingly, in summary, I propose to sentence the Defendant on the basis that:
·the greater proportion of the cannabis plants were female; and
·the potential yield of dry useable material would have been large and far in excess of nine kilograms.