R v Parisi

Case [2014] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PARISI

[2014] SASCFC 57

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Bampton)

6 June 2014

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCE - CANNABIS

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - PARTICULAR OFFENCES - DRUG OFFENCES

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - KNOWLEDGE AND INTENT - SOUTH AUSTRALIA

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

Appeal against conviction for drug trafficking. 

The appellant was convicted of trafficking in a “large commercial quantity” of cannabis contrary to s 32(1) of the Controlled Substances Act 1984. A search of his premises revealed prescribed hydroponic equipment and 11.99 kilograms of “slightly moist” cannabis, which he admitted to police he grew yearly for personal use. None of the usual indicia of active drug trafficking were located. At trial there was evidence that freshly harvested cannabis loses 75 per cent of its original weight upon air-drying, and the Judge proceeded on the basis that when determining whether the appellant intended to sell a “large commercial quantity”, the relevant weight was not less than two kilograms of the estimated air-dried weight rather than not less than two kilograms of the slightly moist weight (“the dried cannabis approach”). His Honour found the intention to sell a “large commercial quantity” proven because “the sheer quantity of cannabis found” in the appellant’s possession, which was estimated to weigh 2.99 kilograms when air-dried, was more than one person could consume over a year. The appellant appealed against conviction.

Held (Peek J, Sulan and Bampton JJ agreeing, allowing the appeal):

1.  The Judge erred in adopting the dried cannabis approach. The prescribed weights of cannabis underpinning trafficking offences do not refer to cannabis in dried form.  Accordingly, if a defendant possesses not less than two kilograms of cannabis which is not air-dried (“wet cannabis”) and is charged with trafficking in a “large commercial quantity”, two kilograms of the wet cannabis will constitute a “large commercial quantity”. It is sufficient to prove the defendant intended to sell not less than two kilograms of wet cannabis even though by the time of the intended sale its weight would have air-dried to less than two kilograms.  The prosecution was therefore only required to prove that the appellant intended to sell not less than two kilograms of the 11.99 kilograms of wet cannabis seized.  The likely weight of the cannabis when air-dried nevertheless remains relevant to proof of an intention to sell; the lesser the air-dried weight of the cannabis, the less likely it may be that there was an intention to sell.

2.  If a “large commercial quantity” of cannabis greater than two kilograms is possessed, it is not necessary to prove…

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AGLC
R v Parisi [2014] SASCFC 57
Case
[2014] SASCFC 57
Decision Date

CaseChat Overview and Summary

The appeal concerned Tony Parisi, who was convicted after a judge-alone trial of trafficking in a large commercial quantity of cannabis contrary to section 32(1) of the Controlled Substances Act 1984 (SA). Police found a significant quantity of cannabis spread on shelves in a shed at the appellant's property, along with hydroponic equipment. The appellant admitted the cannabis and equipment belonged to him and stated it was for personal use, grown annually for that purpose. He was interviewed immediately after the search and the cannabis was subsequently analysed and weighed.

The legal issues before the court were whether the prosecution had proven the elements of the offence, specifically concerning the quantity of cannabis and the appellant's intent. The court had to determine whether the weight of the cannabis, as found by police, constituted a "large commercial quantity" for the purposes of the Act, and whether the appellant possessed the requisite intent to traffic. A key point of contention was whether the weight of "wet" cannabis should be considered, or if the weight should be assessed after accounting for moisture loss to determine its air-dried weight.

The court reasoned that for a charge of trafficking in a large commercial quantity, the prosecution must prove the defendant intended to sell not less than two kilograms of the cannabis in their possession. It was clarified that the prosecution does not need to prove the defendant knew the exact weight or that two kilograms constitutes a large commercial quantity. The court rejected the prosecution's alternative submission that the "wet" weight of cannabis should be considered a large commercial quantity even if the defendant intended to sell it only after drying to a lesser weight. The court found that the "dried cannabis approach" adopted by the trial judge was not incorrect.

The court concluded that proof of an intention to sell an amount of cannabis that in fact weighs not less than two kilograms would suffice, even if the total quantity was greater. In this case, it was sufficient to prove an intention to sell not less than an amount of cannabis that weighed not less than two kilograms of the total 11.99 kilograms found. The court allowed the appeal and remitted the matter for re-trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

After a trial by Judge alone, the appellant was convicted of trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act 1984 (the Act). The Information was as follows:Statement of OffenceTrafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).Particulars of OffenceTony Parisi on the 25th day of July 2011 at Hillbank, knowingly trafficed in a large commercial quantity of a controlled drug, namely cannabis.The evidence On 25 July 2011, police officers attended at the appellant’s house at Hillbank pursuant to a general search warrant and were admitted by his wife. The appellant later opened a shed that had been partitioned into two rooms. A large amount of cannabis was spread out on the shelves (to be referred to as “the subject cannabis”). There was also present prescribed hydroponic equipment, including eight ballast boxes, eight light fittings, eight light globes and a carbon filter. Large black pots with root systems without plants were found but there was no evidence of waste material such as stems or leaves. A water-pipe, two pipes and a small amount of dried cannabis in a small container were also found. None of the indicia of active drug trading often found by the police such as electronic scales; quantities of cash; evidence of luxurious living or a lifestyle exceeding the identifiable and known means of the appellant; surveillance or security equipment; lists of customers and outstanding debts; mobile phones; heat sealing machines, or supplies of plastic sealed bags were discovered. Immediately after the search, a police officer interviewed the appellant who admitted that he was the occupier and that the subject cannabis and equipment belonged to him. He said that the cannabis was for “self use” and that he grew cannabis once a year for that purpose. On 26 July 2011, police officers delivered the subject cannabis to the Forensic Science Centre. On 27 July 2011 it was analysed and weighed by Mr Webber, an analyst appointed under the the Act.[1] He formally certified that it was cannabis and that the total weight was then 11,963.0 grams (11.963 kilograms) and he described the cannabis as “slightly moist”; his certificate was admitted as exhibit P3. In a later statement admitted by consent at trial as exhibit P4, he stated that freshly harvested cannabis loses approximately 75 per cent of its original weight as moisture upon air drying and concluded that the minimum fixed air-dry weight of the cannabis would have been not less than 2990 grams (2.99 kilograms).[1] Controlled Substances Act 1984, s 23. In fairness to the prosecution, it should be noted that while a loss of about 75 per cent of weight from freshly harvested “wet” cannabis to fully air-dried cannabis may generally be accepted, the true weight loss likely to occur in a particular case will very much depend on how long after harvesting the cannabis is actually weighed. In the present case, the description by Mr Webber of the cannabis as “slightly moist” may well have indicated that part of the drying process had already occurred but the evidence was too vague to do other than assume a 75 per cent maximum reduction in favour of the appellant. At the re-trial, the evidence may be different in this respect.The central issue – the dried cannabis approach

Decision

Reasons for decision

SULAN J PEEK J
It is clear on its face that this section is only relevant to what I have termed the general intent aspect of the first inquiry. Importantly, it has no relevance to the second inquiry, the further specific intention as to sale. In Scarpantoni, that aspect was addressed by the words in s 31(1) “intending to sell any of it” and by the reverse onus provision in s 31(4) that applied in that case.[22] [22] There was no lacuna in the circumstances of Scarpantoni as there is in the present case.Conclusion as to the first prosecution contention I therefore conclude that on a charge of trafficking in a large commercial quantity contrary to s 32(1) of the Act, it is necessary for the prosecution to prove that the defendant actually intended to sell[23] not less than two kilograms of the amount of cannabis in his or her possession. However, two important matters should be emphasised. [23] “Sell” is defined broadly at s 4(1) to mean: sell, barter or exchange, offer or agree to sell, barter or exchange or expose for sale, barter or exchange. First, when a defendant is in possession of a large commercial quantity of cannabis, the amount will usually be greater than the exact weight of two kilograms, of course by a varying margin. In such cases, proof of an intention to sell an amount of cannabis that in fact weighs not less than two kilograms (rather than the total amount, however much greater than two kilograms) will suffice. In the present case, it sufficed to prove an intention to sell not less than an amount of cannabis that in fact weighed not less than two kilograms of the total 11.99 kilograms of the cannabis. In practical terms,[24] such an intention would be established here by a finding that at the time of his possession the appellant intended to sell not less than one sixth of the total “wet” cannabis in his possession immediately prior to police intervention. [24] There is a slight rounding in favour of the appellant. Second, provided that the required elements of possession are proven, the prosecution need not prove that the defendant knew what the cannabis in his possession actually weighed or that a weight of two kilograms of cannabis constitutes a “large commercial quantity”. The second prosecution contention: the dried cannabis approach is incorrect The second, alternative, prosecution submission was that if a defendant possesses not less than two kilograms of cannabis in less than a fully air-dried state (“wet cannabis”[25]), and is charged with traffic[26] in a large commercial quantity of cannabis, the wet weight of the cannabis will constitute “a large commercial quantity”, even though the defendant intended to sell the cannabis only after it had dried to a lesser weight. Mr Press submits that the dried cannabis approach adopted by his Honour was therefore incorrect. [25] This term is used to connote cannabis that is in any way less than completely air dried.[26] On the basis of possession of cannabis intending to sell it.Schedule 1 to the Regulations

Ratio Decidendi

Legal Principle Established

Established by: SULAN J, PEEK J

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