R v Radivojevic - [2005] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RADIVOJEVIC
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Boylan
22 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Accused charged with one count of Possessing 3,4 Methylenedioxymethamphetamine for sale; one count of Possessing Methylamphetamine for sale; one count of Possessing Cannabis for Sale; one count of Producing Cannabis
Elements of offences - findings by trial judge about possession for sale and producing for comercial purpose.
Controlled Substances Act 1984 32(1)(e); Controlled Substances Act 1984 32(1)(a), referred to.

R v RADIVOJEVIC
[2005] SADC 86

Drasko Radivojevic is charged with four offences. They are:
First Count
Statement of Offence
Possessing 3,4 – Methylenedioxymethamphetamine for Sale. Section 32(1)(e) of the Controlled Substances Act. 1984).
Particulars of Offence
Drasko Radivojevic on the 17^th day of November 2003 at West Croydon, knowingly had 3,4 – methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, in his possession for the purpose of selling it to another person.
Second Count
Statement of Offence
Possessing Methylamphetamine for Sale. (Ibid).
Particulars of Offence
Drasko Radivojevic on the 17^th day of November 2003 at West Croydon, knowingly had methylamphetamine, a drug of dependence, in his possession for the purpose of selling it to another person.
Third Count
Statement of Offence
Possessing Cannabis for Sale. (Ibid).
Particulars of Offence
Drasko Radivojevic on the 17^th day of November 2003 at West Croydon, knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling if to another person.
Fourth Count
Statement of Offence
Producing Cannabis. (Section 32(1)(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Drasko Radivojevic between the 26^th day of October and the 18^th day of November 2003 at West Croydon, knowingly produced cannabis a prohibited substance.
The charges arise out of a search by police of the accused’s premises. They found ecstasy, methylamphetamine, growing cannabis plants and loose cannabis.
The accused pleaded not guilty to Counts 1, 2 and 3. He pleaded guilty to Count 4 but disputes the basis on which he should be sentenced on that count. He says that he produced the cannabis for his own use. The prosecution alleges that he produced it for sale.
The Prosecution Case
At about 7.50am on Monday 17 November 2003 a number of police officers searched the accused’s premises at 29 Rowell Crescent, West Croydon. The premises comprise a single storey house on a corner block. At the back of the house is a double garage. There is a roofed lobby between the garage and the house.
In a cupboard in the lobby, police officers found a plastic shopping bag which contained 90 gms of female cannabis plant material.
Immediately inside the garage doors were twelve small immature cannabis plants being grown hydroponically. They were in a styrofoam box. Next to the plants was a fluorescent light and, underneath them, in the growing medium, there was a thermal heating unit. Those plants are the subject of Count 4.
On top of a workbench in the shed were four cannabis cuttings in water in a plastic container.
Underneath the workbench, police found a white bucket in which there were three plastic shopping bags. Each of them was knotted at the top and each contained female cannabis plant material. One bag contained 465.5 g; another, 1.6.5 g; and the last, 400 g. The loose cannabis in the cupboard and in the garage is the subject of Count 3.
There were a large number of unused re-sealable plastic bags in the garage. Many of them were what are known as “J-bags” which are commonly used for the packaging and sale of cannabis.
Underneath the workbench there were a set of electronic scales and a “heat-sealing” machine, often called a “cryovac” machine. The scales were of a type commonly used in the cannabis trade. Cryovac machines are also used in the cannabis trade, especially when the drug is to be transported interstate. The machine seals the cannabis inside the bag, thereby masking its pungent smell. The cryovac machine requires a special type of plastic bag. There were 54 such bags in the garage, five on the workbench and the rest in a cupboard.
Police officers found many hundreds of cannabis seeds. On the workbench was a metal container which contained J-bags with cannabis seeds in them and a jar which also contains cannabis seeds. There were also loose seeds in the container. In the cupboard at the rear of the garage was a plastic canister which contained another 15 J-bags of cannabis seeds.
The ecstasy and amphetamine were also in the garage. On the workbench was a “Copper Kettle” brand potato chip bag. Inside that bag was a small cardboard CD box. That box contained a white coloured plastic shopping bag with the brand name “Drake” on it. The Drake bag was contained within the box but was plainly visible without opening the box. A rubber band around the box kept the bag within the box.
Inside the Drake bag was a resealable plastic bag. It held 501 off-white tablets each of which was marked “DVD”. On analysis the tablets were found to contain a total of 9.01 gms of methylamphetamine. The tablets are the subject of count 2.
Inside the CD box, underneath the Drake shopping bag, and in another resealable plastic bag were 853 red tablets each marked “GE”. On analysis, these tablets were found to contain a total of 51.1 gms of 3,4 methylenedioxymethamphetamine (ecstasy). These tablets are the subject of count 1.
The record of interview
Shortly after the police search of his premises, Mr Radivojevic was interviewed at the Port Adelaide Police Station. He told the interviewing officers that he had had the 12 plants for two or three weeks and that he had nowhere to put them to flower. He said that they were in the box for a mate of his. When asked why he had a number of J-bags, scales, a heat sealing machine and a large quantity of other plastic bags he answered “I just kept bits and pieces in there, you know”.
He said about the bags of cannabis in the cupboard and in the shed that it was “Just rubbish. Just bits and pieces of leaf.” When asked what he intended to do with the cannabis he said “I smoke it a bit, occasionally, just to calm down a bit you know … relax”.
When asked what he could tell the police about the tablets they had found in his shed, Mr Radivojevic said “I don’t really want to say much about them.”
The potential yield of the cannabis plants
It was not disputed that a fully grown healthy female cannabis plant would produce 300 gms or more of useable cannabis material.
The value of the drugs
Cannabis
The most valuable part of the cannabis plant is the flowering head of the female. The male plant is of little or no value. To ensure that plants will be female, producers of cannabis take cuttings from female plants. Such cuttings are known as clones.
When sold in lots of one pound, cannabis is usually packaged in plastic shopping bags and commands a price somewhere between $2,200 and $3,500. In November 2003, in South Australia, cannabis was fetching about $2,800 per lb.
When sold in smaller quantities, cannabis is usually packaged in plastic bags. Sandwich-sized plastic bags, which contain about 1oz of cannabis, sell for between $180 and $300. When sold in smaller lots of between one and five grams, the cannabis is usually packaged in J-Bags each of which sells for somewhere between $25 and $60.
The value of ecstasy
The drug known as ecstasy is sold in tablet form. The tablets usually bear a logo similar to the “GE” and “DVD” markings on the tablets found at the accused’s premises. The price per tablet of ecstasy varies considerably. It can be anywhere between $30 and $80. When sold in bulk, the price is lower. When quantities of up to 1,000 tablets are sold the price could be as little as $10-$20 per tablet. Bulk sales of lesser amounts would command higher prices per tablet. For example, if a lot of 150 tablets was being sold then the price per tablet would be closer to $20 than it would to $10.
Although the tablets bearing the “DVD” logo contained methamphetamine rather than ecstasy, it was the prosecution case that those DVD-marked tablets would be marketed (and therefore valued) as if they were ecstasy tablets, given the way they were presented for sale. If sold as methylamphetamine tablets, however, their value per tablet would have been less. No prosecution witness had experience of methylamphetamine being marketed in South Australia in tablet form or, at least, insufficient experience to give more helpful evidence about the value.
Usage of cannabis
The prosecution case was that there was no such thing as average use of cannabis. But Detective Senior Sergeant Kelly was able to say that a person ingesting 4 grams a day would be permanently “stoned” in the sense that that person would barely be able to function.
Summary of the prosecution case
It was, therefore, the prosecution case that the accused was growing 12 healthy cannabis clones. If sold as clones, they had a potential market value up to $100 each. If grown to maturity, they had the potential to yield up to 3.6 kilograms of usable cannabis. He was in possession of 1,153 gms of loose cannabis worth about $7,000 and also in possession of the usual paraphernalia of the cannabis dealer: quantities of plastic bags, scales and a cryovac machine. He was also in possession of 1,354 tablets containing ecstasy and methylamphetamine with a total value of, at least, $13,000. The prosecution alleged that Mr Radivojevic intended to sell the tablets and the loose cannabis and that he was growing the cannabis plants for sale.
Case for the Accused
Mr Radivojevic gave evidence. He is 41 years old and was born in Australia. In November 2003, he was living with his de facto wife and three children at the house at West Croydon. He was unemployed and receiving the Newstart allowance.
Mr Radivojevic denied that he intended selling any cannabis. He readily admitted growing the twelve clones, but said that he did not intend keeping them. Mr Radivojevic had a cloning kit and was experienced at cloning cannabis. He said that he was starting up the twelve plants for a friend who had no such experience. The four cuttings were the accused’s. He intended to keep them for himself as he was, he said, a regular user of cannabis, smoking one to one and a half ounces each week.
He admitted that the various items found by the police were his. He said that he had a lot of loose change and quite a lot of screws and nuts. He used the plastic bags for “multi-purpose things”. He used the scales to weigh up quantities of Thrive, a garden fertilizer. He denied using the scales to weigh cannabis. He used the cryovac machine to store vegetables grown in his garden. He denied that he ever used it to seal bags of cannabis. He agreed that there were cannabis seeds in the garage and said that he had written on one of the bags of seeds to identify seeds from different strains of cannabis. He said that there were other types of seeds in the garage: tomato and flower seeds.
As to the tablets containing ecstasy and methylamphetamine, Mr Radivojevic said that a friend had given them to him for therapeutic purposes. He could not name the friend as he feared for the safety of his children. In cross-examination, he was pressed on his evidence about his acquisition of the tablets and gave a more detailed account. He said that he had told his friend about his post traumatic stress disorder, anxiety and agoraphobia. The friend asked “Have you tried something?” Mr Radivojevic then thought “If I can try something to make me feel better, that yes, it might make me feel better”. He said that he expected to receive only five tablets. On the day before the police raid, his friend arrived with the tablets. Mr Radivojevic was near the garage door. The friend came in through the side gate and said “Here’s the things that will make you feel better”. Mr Radivojevic did not approach the friend but started walking into the shed and said “Come in the shed”. Mr Radivojevic then said “Just put them down on the bench because I am busy now”. His friend then put the box containing the tablets on the bench and left in a hurry. He did not ask for money but said “I’ll come back later and I’ll see you”.
Mr Radivojevic said that the Drake bag was protruding from the box. He put the bag inside the box which he then put in the Kettle Chip bag. He did not suspect that there were more than five tablets in the box because it felt light. He agreed that he put the box into the Kettle Chip bag to hide them, saying he did not want his children or anyone else to come in and stumble across the pills.
At no stage before the police arrived did Mr Radivojevic try one of the tablets.
That is a brief summary of Mr Radivojevic’s evidence. Before turning to a consideration of the evidence and my conclusions about it, I direct myself about the elements of the offences and about a number of other matters.
First Count Possessing 3 (4 - Methylenedioxymethamphetamine for sale)
The elements of the offence of possessing 3, 4-methylenedioxymethamphetamine for sale are
1That the substance in question is 3, 4- methylenedioxymethamphetamine .
2That that drug is a drug of dependence.
3That the drug was in the possession of the accused in the sense that he knew of it’s existence, had physical control of it and intended to exercise control over it.
There is no dispute about the first three elements.
4That the accused knew that possession of the substance was unlawful. This element is disputed.
5That the accused had the substance in his possession for the purpose of selling it. This element is in dispute. The prosecution must, of course, prove this element beyond reasonable doubt, but because the accused had more than 0.5 gms of ecstasy, the law presumes that Mr Radivojevic possessed it for sale unless he can satisfy me on the balance of probabilities that he did not possess it for sale. If he does not so satisfy me then I am entitled to be satisfied beyond reasonable doubt that he possessed it for the purposes of sale.
Second Count – Possessing Methylamphetamine for Sale
The elements of this offence are the same as for Count 1 with the sole exception that the Crown must prove that the drug was methylamphetamine. Because Mr Radivojevic was in possession of more than 2 grams of the drug, then, again, he is presumed to have possessed it for sale unless he satisfies me on the balance of probabilities that did not.
Third Count – Possessing Cannabis for Sale
The elements of this offence are that
1     The drug in question was cannabis.
2     That cannabis is a prohibited substance.
3That it was in the accused’s possession in the sense that he knew of its     existence, had physical control of it and intended to exercise control over it.
4That the accused knew that possession of cannabis was unlawful.
There is no dispute about these four elements.
5That he had the substance in his possession for the purpose of selling it. Again, he will be presumed to have had the cannabis in his possession for the purposes of sale unless he can satisfy me on the balance of probabilities that he did not. This is so because he was in possession of more than 100 gms of cannabis.
Fourth Count – Producing Cannabis
I need not set out the elements of this offence. The accused pleaded guilty to it. I repeat, however, that there is a dispute about the accused’s purpose in producing the cannabis. Before I could sentence him on the basis that he had a commercial purpose in the production, I would have to be satisfied of that feature beyond reasonable doubt. The onus is on the Prosecution.
Directions
The prosecution must prove beyond reasonable doubt each element of each of the offences charged against the accused. In the case of the element of possession for the purposes of sale, the prosecution will be deemed to have proved that element unless the accused satisfies me on the balance of probabilities that he did not possess the drug in question for sale.
I remind myself of the presumption of innocence.
I have considered each of the offences separately.
I have not used propensity reasoning in any form.
Because this is a circumstantial case, I can convict only if there is no inference reasonably open on the evidence other than the guilt of the accused.
I have not treated any one count as admissible in proof of any other count.
I have not drawn any conclusion adverse to the accused from his declining to say anything about the tablets in his interview with police. Nor have I drawn any conclusions adverse to him because the record of interview has been edited.
Prior to trial, Mr Radivojevic, who had been complaining of various mental health problems, was assessed by Dr Raeside. In considering Mr Radivojevic’s evidence, I have borne in mind the contents of Dr Raeside’s letter of the 15^th of June 2005 to Mr Radivojevic’s solicitor. That letter was handed to me, by consent, at the outset of the trial. I note that, at no stage during his interview with police or during his evidence, did Mr Radivojevic appear anxious or distressed in any way. He did not ask for any breaks during his evidence although I had invited him to do so if he felt the need. At interview and in the witness box, he spoke very good English and appeared to understand clearly all questions asked of him.
Conclusions
I found the accused to be an unsatisfactory witness. He contradicted himself on a number of issues. I refer, for example, to his evidence about whether there were other people at his house when he said that the tablets were delivered to him and to the evidence about the provenance of the four cannabis cuttings. Some of his evidence was inherently improbable. One example is his assertion that he kept his Tally-ho cigarette papers in the kitchen but that he only smoked outside and had to go outside to his bulk supply whenever he wanted to smoke cannabis.
I reject his evidence about his coming into possession of the ecstasy and methylamphetamine tablets. I do not accept that Mr Radivojevic would agree to accept the tablets for his medical condition from a layman without making some inquiry about their contents. I do not accept that anyone would leave Mr Radivojevic with tablets worth, at least, $13,000 without asking for payment or making some arrangement about payment. I do not accept Mr Radivojevic’s reasons for hiding the tablets. The effect of his evidence on that topic was that his children, ignorant of the content of the tablets, might swallow some. Such arguments might have some force in the case of children younger than his. The accused’s youngest child was thirteen or fourteen at the relevant time.
I also reject Mr Radivojevic’s evidence of his cannabis usage. It is inconsistent with his statement in the recorded interview that he smoked a bit of cannabis occasionally. In evidence he said that he smoked 1 to 1½ ounces per week. That is an average of 4 grams per day, or more. Accordingly to Detective Senior Sergeant Kelly, whose evidence was not challenged, a person smoking 4 grams a day would barely be able to function. Moreover, Mr Radivojevic insisted in his evidence (At T144) that one of his friends smoked a pound of cannabis per day. I am satisfied that Mr Radivojevic has exaggerated his own use of cannabis and has grossly exaggerated his friend’s use in an attempt to explain the amount of cannabis in his possession.

I have not overlooked the submissions made by Mr Caldicott. I refer only to some of them. It is true that no cash or records of drug transactions were found during the police search. It is also true that the loose cannabis found in the white bucket was not packed into two separate lots each of one pound with the remainder in a third bag. But there are many stages in the production and preparation for sale of cannabis. In the circumstances of this case, the absence of some of the usual indicators of commercial cannabis dealings referred to by Mr Caldicott do not affect my conclusion.
I also refer to Mr Caldicott’s submission about the place chosen for hiding the tablets. Mr Caldicott submitted that it was not a well considered hiding place such as would expect to be chosen by one who knew the tablets were unlawful. I do not accept that submission. On the contrary, it seems to me that the hiding place and the packaging of the tablets were carefully chosen so that the Kettle Chip bag and its contents would appear as discarded rubbish.
As to counts 1 and 2, the prosecution has satisfied me beyond reasonable doubt that Mr Radivojevic knew that the drugs were unlawful. Mr Radivojevic has failed to satisfy me on the balance of probabilities that he did not possess the tablets the subject of each of those counts for sale. Accordingly, I am satisfied beyond reasonable doubt of his guilt of both counts and I enter verdicts of guilty on counts 1 and 2.
Similarly, he has not satisfied me on the balance of probabilities that he did not possesses some of the cannabis the subject of count 3 for sale. I am satisfied beyond reasonable doubt of his guilt of that count and I enter a verdict of guilty.
As to count 4, I reject the accused’s explanation that he was cloning the 12 cannabis plants the subject of that count for someone else. I accept that he may well have smoked some of the cannabis he produced. My rejection of his evidence is not a basis for conviction. The onus remains on the Prosecution. There were 12 healthy plants with the potential to produce a large and valuable amount of usable cannabis. Mr Radivojevic had an area in which he could plant out those clones and grow them to maturity. Moreover, he was found in possession of much of the paraphernalia of the cannabis dealer. The prosecution has satisfied me beyond reasonable doubt that his purpose for growing the 12 cannabis clones was, at least partly, commercial. I shall sentence him on that basis.