R v Paterson No. DCCRM-02-1279

R v PATERSON
[2003] SADC 91
Judge Muecke
Criminal

At about 6.25 pm on Friday 16 August 2002 Police attended at premises known to them as the old Yumali store. Mr Paterson was there. Police searched the premises. In an old laundry off the passageway they found tables, chairs, eleven pair of scissors, a freezer, sink area, cupboard and cannabis stalks with cannabis head still attached. On the floor were four black coloured plastic tubs all containing freshly cut cannabis plants. An electricity meter box was located on the wall near the doorway. Two of the meters had been tampered with. The meter on the left of the box had a small piece of wire through it preventing it from spinning and counting. Located on the left side of that meter was a pair of wire cutters that held the wire in place. The meter located on the right side of the box also had a piece of wire through it, with a piece of metal positioned on the right to prevent that meter from spinning.
In an adjacent room police located numerous containers of fertilizer and growing liquid. Tall large plastic containers were positioned on a table and set up with piping to act as a watering system.
Located on the western side of the premises was another room. That was part of the original shop. In that room were located 20 cannabis plants all approximately 60 cm in height. Each plant was being grown hydroponically inside a large black plastic garden tub. Suspended above the plants was a lighting system held in place with a pulley system which was secured against the left wall. Metal framing surrounded the plants and was covered with an orange coloured plastic netting. Also located in the room were power extension cords, timers and water pumps.
In another room was located another 28 cannabis plants all growing hydroponically. Those plants were about 1 metre in height and appeared to be mature. That room also consisted of a watering system with each plant being grown in a large black plastic tub. Suspended from the ceiling were fluorescent lights along with transformers, power extension cords, water pumps and timers.
In an unused room located off the passage at the front of the premises was further spare equipment in sliding wardrobes. Located in the far corner of that room were 50 unopened black plastic 20 kg bags of coconut fibre. These were stacked up against the wall.
All these items were photographed and are seen in Exhibit SC2.
Before the search of the house police had asked Mr Paterson whether he had drugs inside the house. He had said that he did have. During the search he said that he was responsible for growing the cannabis plants inside the house. He said he thought there were about 40 or more plants there. Police advised the accused that he was under arrest for producing cannabis for sale. He later said that he was shocked by the reference by police to “for sale”.
The accused was interviewed at the Tailem Bend Police Station later that night. He said he lived at the address to which police had gone earlier that evening. He said that the cannabis found on the table and in the black tubs had come from the room in which he had grown the cannabis. He said that he had not placed the attachments that were found on the electricity meter box. He was asked what the purpose of them were. He answered: “I don’t really know about them being there, um, there was a, a so called friend of mine that told me I could cut down the power intake in this place by doing that.” He said that they had been attached for probably six weeks. He did not personally touch the ETSA box in any way.
He said he had been living at that address for two and a half years. He said that he had filled the blue bin with fertilizer agent, being the nutrient. He said that the 30 plants in one room were approximately 80 cm tall. He said they would have been growing for four weeks. He said he planted them, he cared for and tended them. He said he was responsible for the transformers, the fluoro lights, and the electrical set up within that room.
He agreed with police that in another room there were 28 plants. They were a metre or more in height. He said that these plants would have been nearly three months old. He planted them in the black tubs, and he was responsible for caring and tending them.
He agreed that in another room there were approximately fifty 20 kilogram bags of coconut fibre. He said that fibre was used for growing cannabis as a base support for the plant. He had purchased those bags and he had placed them in that room. He agreed that each of them was unopened. He was asked what were they to be used for. He replied: “Ah well if I got away with this batch, the first one, I was I did intend to grow a second one.”
Police explained to the accused why he was being charged with producing cannabis for sale. In the context of that discussion the accused said he personally smoked probably about 8 or 10 cones daily. He said he could not put a weight on the amount of cannabis within his house because he had never grown a crop before and he had no idea of what the crop would have yielded by weight. He said: “It was just a hit and miss thing and I did with the view that if it you know I may do it again.” He was asked whether he understood why it may be unreasonable to believe that the 48 cannabis plants found at his house were being produced for anything other than for sale. He said: “... I quite see your point but then again I’ve never ever grown a crop before. I’ve got no contacts as far as sale goes.”
The accused was asked what he was going to do with the cannabis in his house and he replied: “Smoke it”. He was asked what his reason was for growing the cannabis. He replied:
Well I’ll tell you my reason. It’s because um all my life I’m 60 years old or close to it, I’ve been a heavy smoker, I’ve been a heavy drinker. I could no longer afford to support both those habits with um wages. I mean cigarettes have gone from 3, from 35c a packet up to $14 a packet. Booze is just completely unbelievable in price and with a smoke I get the best of both worlds it’s as simple as that.
Mr Paterson was charged on information in that he, on 16 August 2002 at Yumali, knowingly produced cannabis, a prohibited substance, such production exceeding 19 plants. On 25 November 2002 he pleaded guilty to that charge in the Magistrates Court at Murray Bridge. On that same date he was committed for sentence in this court.
When he first came before this court on 13 January 2003 the court was informed that there may need to be a disputed facts hearing to resolve the factual basis for sentencing. Later, in a directions hearing, I was informed that the accused “says that he was engaged by two others and they set up and supplied the hydroponic equipment; that in exchange for that Mr Paterson would receive one-third of the yield and the other two would receive two-thirds. It is the DPP’s position he would have obtained some commercial advantage by that rather than just cannabis for his own use.” A disputed facts hearing was foreshadowed in which it was envisaged that Mr Paterson would be the only witness.
There was such a hearing on 28 April 2003. The accused was the only witness. Before calling the accused his counsel said “that it is not in dispute that the quantity of cannabis being cultivated was of a commercial quantity and that Mr Paterson would receive a portion for having agreed to cultivate it and other parties would receive the balance, and without being apprised of the specific plans of other parties, Mr Paterson formed the reasonable view that it is likely that the cannabis he gave to other people would be on-sold”. The accused’s counsel said that the accused acknowledged that what was going on at his house was a commercial cultivation, “given the quantity, the number of plants, the quantity of yield that would have been produced and the circumstances surrounding Mr Paterson’s agreement to cultivate it at his premises”. I was told that it appeared that the dispute had narrowed to what the accused was going to get out of what he was doing.
Counsel for the DPP then briefly stated the Crown’s position. She said that “there is a dispute, not as to the commerciality of the crop but as to any financial profit that the prisoner might have realised from his cultivation of the cannabis. This is an aggravating feature which the Crown must prove beyond reasonable doubt”. She submitted that the material in the depositions establishes that the crop was being grown for commercial purposes and that “the prisoner himself was going to achieve financial remuneration from it”. She referred to some of the declarations. She referred to one which was to the effect that the current commercial value of a pound of cannabis head was between $2,200 and $3,500. Another was to the effect that the 28 large plants were likely to yield about 12.3 pounds of useable cannabis. That was in relation to the 28 large plants only. The yield with respect to the smaller plants could not be estimated, although she noted that they appeared to be in good health and there appeared to be nothing to prevent them from achieving maturity.
She submitted that the assertion by the accused through his counsel that he did not intend to financially profit from the crop himself was a matter of mitigation that the accused must prove on the balance of probabilities.
The accused then gave sworn evidence. He said that he had been living at the premises at Yumali for approximately two years. When he moved there he was not employed. He had ceased employment due to a back condition which he said he suffered when performing heavy work in the meat industry. He said that after he finished working in the meat industry he was self-employed in a gardening business for approximately 6 months. He ceased that business about 18 months before he gave evidence on 28 April 2003. He said that he had been out of work for about 18 months before police came to his premises in August last year. He had not been employed since ceasing the gardening business. He had been living on savings.
The accused said that he first used cannabis when he was in Keith. Someone suggested he should try it for his back pain. He said he was amazed at the results. He continued to use cannabis for his back condition. His use of it caused friction between he and his wife and it ultimately led to their separation. They had moved to Yumali by then. She moved out in February 2001. That was before he commenced cultivating cannabis.
He said his cannabis use had increased until he was smoking probably an ounce a week. That cost him between $200 and $280, depending on availability. That continued up until the time the police came to his house in August 2002.
He said that after his wife left he looked into growing cannabis for himself. He went to a hydroponics shop at Noarlunga to find out more about growing it. He purchased a book which showed how to grow it. His intention was to grow three plants. He was in the store for a while asking about equipment to grow cannabis.
When he left the store he was approached by two men in the carpark outside the shop. He said they put a proposition to him. The proposition was:
That they would set up the room. They said ‘Evidently you have the premises to do it, we will set up the room. You get one third, we get two-thirds, we take our equipment and go’. And I said, ‘No I’m not interested’. Anyway, after further discussion they said to me ‘Well don’t give the idea away yet. Have you got a contact number?’ and I gave them a mobile phone number.
The mobile phone number was the accused’s number. The two men would not give him their names nor their telephone numbers. He just knew them as Frank and Bill.
The accused went home and after about two weeks or more of thinking about the proposition it looked more attractive. When the two men rang him he asked them to come down and to talk about it. The two men did come down (to Yumali) and said:
... ‘Well we will supply the equipment, we will supply the plants, you grow them, we will look in from time to time to see how they are going and tell you what to do and I get one third, we get two-thirds. When the crop’s out we take our equipment and we go’.
The accused said that his cannabis use was costing him a lot of money and he thought that if he could get away with one crop with these two men he would have an endless supply for himself and it would not cost him anything. The more he looked at it the more attractive it got. He agreed. The two men then came to his house sometimes twice a week over a period from May until before the police came. The frequency of their visits would depend on the stages that the plants had reached. When they came they would go into the rooms and check things out. When it was time for them to go one of them would make a phone call, a car would pull up and they would go. He said that the two men were “not the sort of blokes you mess around with”.
The accused said that he assumed the men were going to sell their two-thirds of the crop. The accused denied that he was going to sell or give away any of the cannabis that constituted his one-third.
He was asked about the plants in the two different rooms being of different heights. He agreed that they were plants of different ages. He was asked:
How did you come to have plants at two different heights.
AInitially they put them in the big room.
QIs that the 28 or 30 or so plants.
AYes. And then they said they said to me that if I showed I could grow them and do what I was told, like with growing them, they would put in further plants in the other room. I referred to that as another crop I think in the statement.
QIn your interview to police.
AYes.
The accused said that after he had agreed to the proposal three men came to his place one night in a small furniture removal van. They had all the equipment in that. There was Bill and Frank and another person to whom he was not introduced. Setting up took most of the night. He was involved in that. He was told what to do. About two weeks later they came with the plants. The plants were then about 15 cm high. There were about 34 of them. He kept them under lights until the roots came out and then the men came back and the plants were transferred into pots. He helped with that. He was given instructions on how to water and feed the plants, and what to do with the lights.
He said that the second room was put in about four or five weeks after the first room was put in. The accused was asked:
When you first agreed to enter into this arrangement with these fellows, did you agree to growing a specific number of plants. Did it matter to you the number of plants.
ANo, it was a very broad thing. They just said ‘two rooms’, but I said to them in the first instance ‘How many, you know, in one room?’ They said ‘Approximately 25’. I just said ‘Two’.
QYou mentioned earlier that you were initially planning to grow three because you knew that you ran the risk of being in more serious trouble if you grew more than that amount.
AYes.
QWhat was your reaction, if any, to being told that you would have two rooms with 25 or so plants in each room.
AI was pretty horrified at one stage.
QWhy didn’t you just say ‘No’.
AWell, I looked at it in a lot of ways: one is I had a habit and the other is running the risk of growing three continuously, I felt was a big risk. But I thought ‘Well, if I get a third of one decent crop, that’s it’.
QYou thought that would give you enough cannabis.
AYes, I think it would have, yes.
He said that when the police arrived he had no idea how much a third of the crop might be. He said that the tampering with the ETSA meter was done when they came and set up the room. He did not know anything about that and that was not part of the arrangement.
The accused agreed that when police attended there were four pots with stumps in them. They were stumps from plants that he had grown at his house. He said he was in the process of harvesting the plants in the larger room when police came to his house. The 20 smaller ones in the other room were possibly six to eight weeks away from harvesting.
The accused was reminded that police had asked him about the bags of coconut fibre found at his house. He was asked:
Do you recall being asked this: ‘And what were they to be used for?’ and your answer ‘Ar, well, if I got away with this batch, the first one, I was - I did intend to grow a second one’.
AYes.
QDo you remember giving that answer.
AI do now, yes.
QWhat do you mean by that when you said it.
AWhat I meant by that was the other room going in, which had already gone in anyway.
QWhat would the coconut fibre be used for.
AThat was a base for the plants.
QDid they not have coconut fibre on them or in them somehow yet at the time you were speaking to police.
AYes, but they had to be topped up.
HIS HONOUR
QI’m not too sure whether Mr Dibden’s question has been fully answered. What did you mean when you said ‘If I get away with this one, I will put another one in’. Hadn’t you already gotten away with that one.
ANo. What I meant was the big room was one crop and if I got away with that, there was a second one going in, which it did, which was already in. I’ve got to state too that at that night, as you can probably imagine, I was pretty stressed out. I’m not making an excuse. I’m not trying to make any excuses for my actions at all. I was pretty stressed out and I may not have explained things how I saw - meant them, but what I meant by ‘second crop’ was that out of the room with 20 in it, the coconut fibre that was there, there was probably too much but, I mean, there was nowhere near enough for another crop anyway, but there would have been enough there to top the pots up because they do settle with, as I found out, with nutrient and water. So that was the reason for those being there.
XN
QWhen you say ‘those’, are you referring to the bags of coconut fibre.
AYes.
Finally, the accused confirmed in examination-in-chief that he had no doubt that some of the cannabis that the two men would get from the arrangement would be sold to other people. He denied that any of the cannabis he would have kept himself was to be sold by him.
In cross-examination the accused was asked about what Frank and Bill told him when they visited his house on the first occasion. The accused said that they had said: “We will set you up with all the equipment and the advice on how to do it. All you have to do is to take care of them. We will be here from time to time to check them to see if everything is going all right. If everything goes all right with the first room, we will put in a second room”. He said that that was the second crop he had referred to. Further, he said that the bags of coconut fibre were brought to the house by three men the second time they came to his place with equipment to grow cannabis. He said the three men carried the bags of coconut fibre in. It was also with the second load of equipment that they brought the pots.
Under further cross-examination the accused inferred that there was some arrangement between he and the two men that they would share the costs, at least the costs of the electricity, two-thirds/one-third. The accused said:
... there wasn’t a discussion about paying the electricity bill but everything we were doing, all costs incurred was supposed to be two-thirds of (and) a third except for the plants and the equipment they were going to take. So there was no cost there to me. Where they got the plants from I don’t know, I don’t think there was any cost, any involvement with them. They supplied the nutrients, I supplied the labour.
HIS HONOUR
QWhat costs were going to be two-thirds/one third.
AAny like power costs, your Honour.
QI thought you said to Ms Powell that wasn’t discussed.
AThat wasn’t discussed before the box was tampered with your Honour, but I said to them initially about the power and they said ‘Don’t worry about that’ and that’s when this business with the box came up afterwards.

Further, during cross-examination, the accused was asked:
You were asked on p. 12 by Sergeant Gigger ‘And how old were those plants’ and you answered ‘Those plants would have been three months or more’.
AYes, that is correct.
QYou were asked ‘Who planted them in that room’ and you replied ‘I did’.
AYes.
QDo you recall saying that to the police.
AYes, I do.
QThat appears not to be your evidence today however.
ANo.
QWhy did you tell Sergeant Gigger that you planted them.
AI did actually help them plant them.
QIt says ‘Who cared and attended for those plants’ and you replied ‘I did’.
AYes.
HIS HONOUR
QAs to planting them, why didn’t you tell the police ‘Me and three others’.
AI am sorry?
QWhen the police asked you who planted them, you didn’t say ‘Me and three others’.
ANo, I didn’t.
QWhy not.
ATwo reasons: one is I was a little bit frightened of reprisals and the other is that night in particular I was completely stressed out. I am not trying to make excuses but I was completely stressed out. I had been drinking that night, which was unusual anyway, but anyway I had been that night and I was trying to virtually, I didn’t realise how serious it was at the time the trouble I am in now, but I was trying to smooth it out so they weren’t involved, they would never get involved and I was more or less going to cop it but boy.
Later the accused was asked:
Was it your understanding that Bill and Frank would leave their equipment with you in order to grow the one crop and then they would leave.
AYes.
HIS HONOUR
QJust to be clear about this, by ‘one crop’ you mean the two rooms.
AThe two rooms your Honour. I refer to those as separate crops because they are separate rooms.
QMore than that, they were planted at separate times. The second was only planted when the first one was up and running and looked like it was going to be a goer.
AYes.
QWhat was the arrangement then. When did the second crop come up as it were.
AThe second crop, the initial arrangement with them was if it looked like I was doing the right thing with them, or doing as I was told like spraying the bugs and mixing up the fertiliser for them and doing it all right, that they would put in another room which was the second room of 20 and that would then have been approximately five weeks after the other crop.
QBut it was always contemplated that of a possibility of a second crop as you have described it.
AThey had mentioned a second crop to me but I rejected it outright, yes.
QI am sorry, I am referring to second crop as the other bedroom.
AYes.
QWhen didn’t you reject it outright. Was it proposed to you, whilst after the first crop was up and running or before.
AThe additional arrangement was that after the big room which had the 28 pots, they said to me ‘If you show that you are doing it right we’ll put in the other 20’.
QWas that before the big room was planted or after.
AThat was before.
QWho harvested the four pots.
AI did.
QBy that I mean I think you understood the four plants which came from the four pots with stumps in them.
AYes. I did.
Still later the accused was asked:
You see police found a large number of bags of coconut fibre.
AYes.
QYou were asked about that in your interview with police.
AYes.
QWhen you were asked ‘Who bought those bags’ you replied ‘I bought those bags’.
AYes.
QWas that true.
ANo, it wasn’t.
QYou were asked ‘Who placed them in that room’ and you replied ‘I placed them in that room’. Was that true.
ANo.
QYou were asked ‘And what were they to be used for’ and you replied ‘Ah well, if I got away with this batch, the first one, I was, I did intend to grow a second one’. Do you recall that.
AYes, that was the second room.
QThere is 1,000 kilograms of coconut fibre found in your house.
AYes.
QWith no apparent immediate use.
ANo. Well, it did have because that second room, with the watering of the plants, it settles, the coconut fibre, and before the flowering stage they had to be topped up, the pots had to be topped up. I think they were 40, 50 litre pots from memory and they settled down probably 50% and then they are topped up and then we go into what is called the flowering or blooming.
QAre you suggesting these bags found were going to be entirely used on the 20 smaller plants in the second room.
ANot entirely no, but a lot of them would have been, yes.
QI would suggest to you that you in fact intended to use those for another batch, another crop.
AThere is no way, no.
...
HIS HONOUR
QWhile we are on these bags, how much coconut fibre do you need for one pot.
AI’m not sure what a bag holds offhand your Honour.
QYou were there, you did it as far as - or helped do it in respect to 48 pots.
AYes, I helped plant them, I didn’t help fill the pots up.
QWhen I ask that, I assume when you say ‘helped plant’ you mean the whole planting process.
ANo your Honour, I helped put the plants in the coconut fibre but having a guess I would say they would have to be at least 40 litre pots so I would say they would have to be in the initial stages, I would say they would have to be a bag and a half roughly to a pot.
QDo you know how many bags there were found.
ANo I don’t.
MS POWELL: It was 50.
On 29 April 2003 I heard submissions from both counsel as to issues arising from the disputed facts hearing.
Counsel for the DPP submitted that I should be satisfied beyond reasonable doubt that the principal reason that the accused grew the crop was a commercial one. She submitted that the likely yield of well over 12 pounds of cannabis for the 28 mature plants alone and the expectation that the smaller plants would yield a substantial amount lent weight to such a finding. The evidence established that this was an elaborate and expensive hydroponic set up. Further, the evidence of the accused was that he knew, or strongly suspected, that the majority of the cannabis grown was destined for sale.
Counsel for the DPP further submitted that the accused had not established on the balance of probabilities that he was involved in the growing of the cannabis as a joint venture with two other men, and that his share of the cannabis was for personal use. She submitted that the accused’s evidence was an unreliable basis for such a finding. She submitted that his evidence on some topics was unsatisfactory and far‑fetched. Furthermore, when he was interviewed by police he admitted responsibility for planting and tending to the plants. There was no mention by him of the other men involved. He admitted in his evidence that he had not been truthful to police on some matters in his interview. His explanation as to why he referred in the interview to growing another crop was not truthful. His evidence concerning the 50 bags of coconut fibre found at his house was unconvincing.
In his submissions, counsel for the accused again raised the issue of what was actually in dispute on the disputed facts hearing. He submitted that the general commerciality of the crop was not in dispute. He submitted that it was admitted that “an indirect financial gain” was expected by the accused because, as a consumer of cannabis, he avoided the cost associated with its purchase.
Conclusions
The accused has pleaded guilty to having knowingly produced cannabis, such production exceeding 19 plants.
It would be a matter in aggravation of this offence if he was producing the cannabis found at his house at Yumali on 16 August 2002 in order to sell it himself, or to obtain a commercial advantage in some way other. It would also be a matter in aggravation if he was producing it so that others could sell part of it. It would be a matter in mitigation of the offence if he was producing the cannabis found at his house for his own sole use, or if he would gain no commercial advantage at all by the production.
Matters in aggravation of any offence must be established beyond reasonable doubt before they can properly be taken into account in the sentencing process. Matters in mitigation of an offence must be established on the balance of probabilities before they may be properly taken into account in sentencing.
The evidence in the depositions as to what was found at the accused’s house by police when they went there on 16 August 2002 is impressive. The commercial value of the plants found there was significant. By that I mean that the evidence establishes that the more advanced crop would then have been worth at least $27,000. It was in the process of being harvested when police went to the accused’s house. I am satisfied that the value of the less advanced crop would have ultimately been at least the same as the crop that was in the process of being harvested. I am satisfied beyond reasonable doubt that the commercial value of the plants found at the accused’s premises was and would have been at least $50,000.
When the accused was first questioned by police he admitted that he had planted the plants at his house, he had tended them and he was harvesting some of them. He mentioned that a “so-called friend” had told him about interfering with the electricity box. He had purchased the bags of coconut fibre. He did not mention anyone else being involved with him.
His evidence before me was contrary to some of the things he told police. On a number of matters he said that what he had told police was not the truth.
I consider that some aspects of his evidence before me were particularly unsatisfactory and unconvincing. His explanation about an answer he gave to the police about another crop, and his evidence about the 50 bags of coconut fibre are two examples. These two aspects of evidence are important because I consider them to be related to each other. I do not accept the accused as a credible and a reliable witness about these matters. I do not believe his evidence about meeting Frank and Bill at a hydroponics shop, about the arrangements they subsequently came to, and about what happened thereafter.
I am satisfied beyond reasonable doubt that the accused intended to produce a further crop after all the plants found in his house in August 2002 were harvested and that the bags of coconut fibre were there for that further crop.
Furthermore, I am satisfied beyond reasonable doubt that there were others who were involved with the accused in an enterprise to grow and harvest the cannabis that police found in the accused’s house, and later to grow a further crop or crops. I am not able to be satisfied beyond reasonable doubt precisely what the financial arrangements between the accused and those others were as part of that enterprise, but I am satisfied beyond reasonable doubt that the accused, as well as others, would obtain a direct financial benefit from the plants found at his house.
I am not satisfied that the accused was probably going to share in the plants in the way that he said in his evidence. In particular, I am not satisfied that the probabilities are that his share, whatever it was, would comprise cannabis solely for his own consumption.
I will sentence Mr Paterson on the basis of these conclusions.

[2003] SADC 91

20 June 2003