R v Puntillo No. DCCIV-03-367

[2003] SADC 136

R v PUNTILLO
[2003] SADC 136

Judge Robertson
Criminal

1. The Defendant has pleaded guilty to the offence of Producing Cannabis contrary to Section 32 (1)(a) of the Controlled Substances Act.

2. The Crown alleges that there was a commercial element to the offending in that it was the intention of the Defendant to sell part of the cannabis being produced.  The onus is upon the Crown to prove an aggravating feature of offending beyond reasonable doubt.

3. The Defendant’s offending came to the notice of the Police, when Police Officers attended at his house at Hendon on 28 November 2002 and located 22 cannabis plants in all.  There were six plants growing in one room of the house, a further four in another room and two more in an adjoining room.  A further 10 small plants or cuttings were located in a tub in the lounge room.  All the plants except the cuttings were being grown under what can be described as a relatively sophisticated hydroponic system.  Because the three rooms being used for growing the cannabis plants were bedrooms, the Defendant was required to sleep in the lounge room of the house.

4. Constable Tuohy and Probationary Constable Vance were the police officers who attended at the Defendant’s premises and located the growing cannabis plants.  Constable Tuohy described the six plants growing in one room as about two metres in height.  He observed wire mesh holding down an extensive branch structure.  The police officer stated that the four plants located in another room were a metre in height as were the two plants growing in a further separate room.  Probationary Constable Vance also stated that the six plants growing in one room were about two metres in height.  He said the plants filled the room, making it difficult to open the door.

5. Evidence was given by Mr Webber, a forensic scientist, that the six plants growing in one room were mature female plants of bushy habit.  He considered that these plants were nearly ready for harvesting.  He estimated that each of these plants could yield at least 300 grams of cannabis material.  This estimation he said was based upon the plants being one and a half metres in height.  By yield Mr Webber said he was referring to the heads of the plant and the leaf material.  He said that if the plants were approximately two metres in height and two metres wide, then the yield for each plant would be in the order of 600 to 800 grams.  He said that of the yield of a cannabis plant that about sixty per cent would be cannabis head,  give or take a little either side of that figure.  The remainder of the yield, he said, would be leaf material.

6. Mr Webber said that the other six plants, made up of four plants in one room and two plants in the other had some way to grow before they reached maturity.  His evidence was that if they reached maturity then those plants would also produce a substantial quantity of cannabis.  These plants were approximately a metre in height and Mr Webber described them as being of bushy habit.  It is likely that cultivation of these plants commenced at a later time than those six plants in the one room as their stage of maturity was less than the first six plants.  

7. In addition to the seizure of the plants and the hydroponic system the Police also seized electrical timers, liquid fertilizer and extension power boards.  An electrical system had also been established to enable the electricity being consumed in the hydroponic growing system to bypass the meter box thus avoiding the consumption being recorded on the meter.

8. In addition to this evidence there are the statements of Police Officer Kelly regarding the price of cannabis.  His evidence was that two to four grams of flowering head could be sold for $30 to $60.  He said approximately twenty eight grams of flowering head would bring a price of $200 to $500 and one pound of flowering head (approximately 454 grams) would bring a price of $2,200 to $3,500.  He said these prices would depend on quality and availability.

9. The Defendant gave evidence.  He said that he consumed about an ounce of cannabis or even more a week.  He said he consumed about 20 bongs a day.  The Defendant said he was a painter and that he consumed cannabis whilst he was at work as well as at home.

10. The Defendant said that the six mature plants belonged to him.  He said the other six plants belonged to a friend.  The Defendant said they each owned half of the clones or cuttings.  The Defendant said that he tended to all of the plants during cultivation but his friend provided his own growing ingredients.  He said it was not intended that he receive any part of the harvest of the six plants which belonged to his friend.

11. The Defendant said that of the cannabis that belonged to him, it was for his personal use and that he would have supplied some to friends at no cost.  He said that the cannabis that was to have been harvested from his six plants would have lasted him for about two years.  He said it was not his intention to sell any of the cannabis which was to be harvested from the six plants. 

12. I found the evidence of the Defendant to be unsatisfactory and unconvincing.  At times I thought his evidence to be implausible.   An example of evidence I thought was implausible was his explanation for the absence of all but a very small quantity of harvested cannabis on the premises when the police arrived.  This is but one example of a number of occasions where I found the Defendant’s evidence implausible. 

13. A further example was the Defendant’s evidence of the level of his consumption of cannabis.  I thought he deliberately exaggerated the extent of his personal use of cannabis.  He said he smoked about twenty bongs of cannabis a day.  There was not any smoking equipment found on the premises.  The Police searched the premises.  The Defendant said that he had the bong he used in a tool box in the shed and the police missed that in their search.  The accused said that he also smoked with Tally Ho cigarettes papers but none were found on the premises.  I found this whole passage of evidence unconvincing and I do not accept his explanation for the failure of the police to find any material which could be used in the consumption of cannabis.  Whilst I am prepared to accept that the Defendant did use cannabis I consider, as I said, that his evidence of the level of that consumption to have been deliberately exaggerated for the purpose of attempting to provide some explanation for the substantial number of cannabis plants on the premises.

14. I thought his evidence that half the plants belonged to a friend was untruthful.  Again, the motive for the Defendant giving that evidence was to provide some explanation for the substantial number of cannabis plants on the premises.  The Defendant, in my opinion, clearly recognised that the number of plants and the different stages of maturity might appear inconsistent with the evidence that it was intended that the harvested product was only for  personal consumption and for the sharing of the harvested cannabis with his friends.

15. The matters I have referred to are but few examples of the evidence which I found implausible.  There were other parts of his evidence which I also found to be implausible.

16. As a result of the opinion I have about Defendant’s the evidence generally I do not accept the Defendant’s evidence about the cannabis being produced by him was for sale.

17. Of course, although I have reached the position that I do not accept the Defendant’s evidence that is not the end of the matter.  The onus is upon the Crown to prove beyond reasonable doubt that the Defendant intended to sell at least part of the cannabis being produced.

18. Mr Barklay Counsel for the Crown pointed to a number of factors in support of the Crown case.  Included in those factors were:-

    ·The size of the crop.

    ·The potential yield of the crop.

    ·The potential value of the crop when harvested.

    ·The relatively sophisticated hydroponic growing system.

    ·The fact that a substantial part of the house was being used for the growing of the cannabis.

    ·The diversion of the electricity consumption past the meter box to avoid the meter recording that consumption.

19. All of these factors raised by Mr Barklay are supported by the evidence.  They are, in my opinion, all relevant matters that I am entitled to take into account in considering the issue before me.

20. In considering the question of whether the Crown has discharged its onus I need to take into account the submissions by Mr Caldicott and in particular that there were no items located on the Defendant’s property which may indicate that a person is involved in the sale of cannabis.  I accept that there is no such evidence.  They are, in my opinion all relevant matters to be taken into account.

21. Having taken all the factors I have mentioned into account, I am satisfied beyond reasonable doubt that the Defendant was intending to sell a substantial quantity of the cannabis.  I also accept that he would have consumed some  of the cannabis produced.