R v Reid - [2005] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v REID
Reasons for Decision of His Honour Judge Muecke
11 May 2005
CRIMINAL LAW
Disputed facts on sentence - whether the accused took part in the production of cannabis with the intention to sell some of it or whether he did so solely for his own use

R v REID
[2005] SADC 45

On 9 May 2003 police attended at the accused’s home address. In a large shed at the rear of the home police located sixteen growing cannabis plants. In another shed adjacent to the large shed they located four growing cannabis plants. Police also located 95g of cannabis inside one of the sheds and 36g of cannabis in the accused’s motor vehicle that was parked in the driveway of his home. Some of the cannabis in his car was divided up into small plastic bags. Police also located cash in the large shed ($230), in the accused’s car ($25) and in the accused’s wallet ($400). Electricity bills in the name of the accused were also found by police. They were for large amounts.
On 15 August 2003 the accused was committed for trial in this court. He was committed for trial on charges of having knowingly produced cannabis (where such production exceeded nineteen plants); of knowingly having cannabis in his possession for the purpose of selling it to another person; and of having in his possession $655 in cash which was reasonably suspected of having been stolen or obtained by unlawful means.
The Director of Public Prosecutions charged the accused on information with taking part in the production of cannabis, with two counts of possessing cannabis for sale, and with one count of unlawful possession (in respect of the cash Police found in the accused’s shed and in his car).
On 22 September 2003 the accused pleaded guilty to Count 1 on that information, taking part in the production of cannabis. The particulars of that offence were that the accused, between 1 April 2003 and 10 May 2003 at Firle, knowingly took part in the production of cannabis. It was further alleged that the number of cannabis plants produced was in excess of nineteen plants.
The accused’s plea of guilty in respect of that charge was accepted by the DPP in satisfaction of the information. The court was advised, however, that there was a dispute in respect of the offence to which the accused pleaded guilty. The court was advised that the Crown would be alleging that “it’s a commercial operation and that the money that was located was part of the commercial operation and that some of the smaller bags were also going to be sold by (the accused)”.
A disputed facts hearing ultimately commenced on 27 January 2005.
I was informed by the accused’s counsel that I was required, on the disputed facts hearing, “to consider the commercial motive of the convicted person. Our position is that there is no commercial motive. The Crown’s position is that there was a commercial motive … the disputed facts revolves around whether or not my client had that commercial motive. My friend will be asking your Honour to infer from the facts of the case that there was a commercial motive. Our position is that there wasn’t.”
In Opening the Crown Prosecutor said that “the prosecution’s case is that the predominant underlying motive to the production process, namely the two hydroponic crops, was a commercial one in that at least some of the cannabis would have been sold at some time in the future”. The Crown Prosecutor highlighted certain factors which she said she would submit supports that hypothesis.
A number of depositions were tendered (Exhibit P1 – P10). I then heard oral evidence from two police officers who had gone to the accused’s home on the evening of Friday 9 May 2003. During the giving of their evidence a copy of a video of the search police made at the accused’s property on that evening was shown to me (Exhibit P11).
In her statement dated 13 June 2003 (Exhibit P3) Constable Chamberlain (nee Grimshaw) described entering the large shed at the rear of the accused’s home. She noticed a desk which had lying on it some bongs, a pipe and money. There was a small room on one side of the shed that had been lined with silver foil in which an air conditioner was located at the bottom of the eastern wall and which contained hydroponic lights and sixteen cannabis plants approximately 1.5 metres in height and 80cms wide.
Constable Chamberlain and another police officer then searched the accused’s motor vehicle. In the centre console in the front of the vehicle she located one deal bag of cannabis containing less than 25g, seven empty deal bags, and one Port Power stubby holder containing $25 (comprising a $20 note and a $5 note). Shortly after she located in the accused’s vehicle one JVC plastic case containing one stick of cannabis, two deal bags containing less than 25g of cannabis that were inside a large deal bag, four deal bags each containing less than 50g of cannabis and three deal bags each containing less than 25g of cannabis. The seven deal bags just referred to were all inside a large deal bag.
Constable Chamberlain and the other police officer then returned to the shed and counted the money that they had located on the table underneath a glass bowl that contained a small pipe and cannabis. The money under the bowl totalled $230 (primarily in $50 and $20 notes). Next to the glass bowl was a black wallet containing money to the value of $400 (in $50 notes). Also inside the wallet was a driver’s licence and card with the accused’s identification on both.
When Constable Chamberlain was removing items from the rear of the shed she could hear a humming noise coming from behind her. There was a strong smell of cannabis coming from another shed located to the north-west of the first shed. Police searched that smaller shed. Inside they located four more cannabis plants. Constable Chamberlain took samples from those plants and handed them to another police officer who placed them into exhibit bags.
In her oral evidence Constable Chamberlain said that the sixteen cannabis plants in the large shed were not “too far off from being mature plants, because they were heading”. She said that most of them were heading. She said that those plants were not then ready for harvesting but they “weren’t very far off”.
Constable Chamberlain said that she estimated the height of the sixteen cannabis plants in the larger shed to be between 1 metre and 1.5 metres. She said that that estimate was from the bottom of the pots to the top of the plants.
Probationary Constable Ruckert prepared a statement on 31 May 2003 which he signed on 5 June 2003 (Exhibit P4). He was the police officer who searched the premises with Constable Chamberlain. He described the sixteen cannabis plants in the larger shed as being about 1½ metres in height and about 80cms in width. He described the four cannabis plants growing hydroponically in the smaller shed as being about ½ metre in height and about 30cms in width. He described them as mature cannabis plants. In his oral evidence Probationary Constable Ruckert confirmed that his estimate of the sixteen cannabis plants in the larger shed was that they were 1.5 metres in height and 80cms in width. He made that estimate “after the marijuana plants had been pulled out of the pots”.
Senior Constable Downs was the exhibits officer on the evening police went to the accused’s home. The log he prepared is attached to his statement dated 6 June 2003 (Exhibit P5). The log refers to him having received from Constable Chamberlain and Probationary Constable Ruckert “Cannabis plants from growing room TOTAL 16 80cm ® 1m. Bundles of”. Senior Constable Downs also noted in his log as having received from police officers : “4 x small cannabis plants measuring 35cm tall”. Senior Constable Downs did not give oral evidence at the hearing before me.
Other depositions tendered before me established that there was significant electricity that had been consumed at the accused’s premises from the early part of 2001. A statement dated 26 September 2003 of Gregory Webber was tendered (Exhibit P8). That statement indicated that a “good sized mature (cannabis) plant would be approximately 1.5 metres tall with a lateral spread of about 1 metre. Such a plant would yield approximately 250 grams . . . of dry leaf and flower material (i.e. useable material)”. The statement refers to yields of individual cannabis plants varying at maturity and it sets out a chart estimating yields according to the height of plants at maturity and the habit of the plants (being either bushy, normal, spindly or very spindly). Mr Webber said in his statement that he understood that there was sixteen mature cannabis plants said to be approximately 1 to 1.5 metres tall and 0.5 to 0.75 metres wide growing in a shed at the accused’s home. Mr Webber said that the plants appeared to him to be healthy and of normal habit. (Mr Webber had seen the video Exhibit P11 before he prepared his statement dated 26 September 2003 and he was shown it again during his oral evidence.) Mr Webber said it was likely that each plant would yield at least 200g of dry useable material at harvest, a total of at least 3,200g. Mr Webber said he also understood that there were a further four plants in another area of the accused’s home. Those plants appeared to be smaller and not mature but no sizes were indicated to him. He said that the table in his statement may be used as a guide to the potential yield for those four plants.
In his oral evidence Mr Webber was asked to estimate the potential yield of useable material if the height of the sixteen plants was between 80cms and 1 metre. Mr Webber said that the yield would be reduced correspondingly and he would then expect the yield to be at least 150g per plant. He said that would be his expected yield if those plants had been harvested at that time. He said that they appeared to him to be nearing maturity.
Mr Webber was asked whether he could estimate the potential yield of the four plants in the smaller shed on the basis that they were approximately ½ metre high to 30cms wide. He said the yield for those plants was very difficult to estimate because of the number of variables that can be introduced into the growing. He said that for plants of that size there would be a very small amount of leaf, probably something in the order of maybe 20g - 40g.
Mr Webber said that the yields he had specified in his statement for the sixteen plants were for useable material, that is dried leaf and flowering material. He said that for those plants, although it was difficult to estimate, one would probably be looking at 60% of head in what he had described as useable material.
The accused gave evidence at the hearing before me.
The accused said that the money police found in his wallet and the $25 they found in the Port Power stubby holder in his car were withdrawn by him from a rediteller machine at the Adelaide Bank on 8 May 2003. He produced an ATM print out in the sum of $450 and a corresponding bank statement from his bank (Exhibit D17). He said that after he got $450 from the bank he put the money in his wallet. He then went to the supermarket and paid for a purchase using one of the $50 notes he had obtained from the bank. He received change of “$26 something”. He put that money in his tracksuit pants but when he sat in his car he took it out and put it in his Port Power stubby holder.
The accused said that as at May 2003 his wife was in receipt of a Family Allowance and parenting partner benefit and he was in receipt of Centrelink benefits. He said that he and his wife had started up a lawn mowing, gardening and odd jobs business in about the year 2000. He produced a reference dated 10 June 2003 from Pages Publishing that he said indicates that he did a number of jobs for the proprietor and his family.
The accused said that he was a heavy user of cannabis and has used cannabis for about 16 years. He smokes “probably about 10 to 15 joints (of cannabis) a day and a few bongs on top of it”.
The accused was asked about the $230 that police found under a container in his shed. He said that that was rent money “from the fortnight before”. He said they paid $380 a fortnight rent. He explained it this way:
… I used to go and pay the rent to the landlord but then he put it up so – because I went up there for the last four years to pay rent, I said it was up to him to come down to pick it up, because he wasn’t doing anything to fix up the place and I thought it was fair for him to come to pick up the rent. Because he was a workaholic, sometimes he didn’t come to pick up the rent and sometimes when he come there, there was two lots of rent, so $760 sitting around, and I used some of the money that was rent because before the pay – that’s why he picked it up. That’s why there was $230 there because I spent some of it, and the glass bowl was on top of it because the shed door was open and so the money wouldn’t blow around the shed.
The accused said that the twenty cannabis plants police found were being grown by him for his personal use. He said that he had grown cannabis before. He used to grow about three to four plants at a time and he grew those about three times a year. He had started doing that probably “about three years ago”. He said that he “just got sick of wasting money on it over the years, so I decided just to grow it myself”. He said that he was not successful at growing plants. He was asked to elaborate. He replied:
AIt’s like anything, you start off new, you can’t get things right the first time – because it’s a lot of work to grow hydroponically, like Mr Webber said, it’s lighting, nutrients and the right humidity – and if you don’t do it all correct, then you’re not going to produce.
QYou’ve said that you’ve previously grown three or four plants for your own use. On this occasion, the police found 16 – for want of a better expression – mature plants and four juveniles. Can you tell us why you grew that many plants.
AI didn’t have success – get very much yield out the last lot, and I was running low, and I didn’t appreciate – like, my wife didn’t want me growing so many times a year, so I just decided to try to do it once.
HIS HONOUR
QI missed that.
AShe wasn’t too keen on growing constantly through the year, because of what was going on in the world these days, so I thought I would take it and do 16 which could produce the same as three, three plants, 16 small plants.
The accused explained that what was going on in the world related to home invasions and things like that. He said he didn’t want to grow cannabis all year round so he thought he would “just rather do it once a year”.
The accused said that he had never sold any of the cannabis that he produced. Years ago he had shared some with friends but not since then.
The accused explained that he was able to meet the “largish” invoices and accounts from AGL from “some money I got from working, doing the lawn round and gardening round, and some other money come out of our Newstart or unemployment payment”.
The accused explained that the cannabis in plastic bags police found in his car were for him to take away that weekend when he was going fishing. He put that cannabis in bags “to stop the smell”.
In cross-examination the accused explained that the dramatic increase in electricity consumption in the period February to May 2001 was because his wife had purchased an air conditioner for the house. He said that was when the first power bill went up. He said the other large bills would be from growing (cannabis) and from the air conditioner in the room where the cannabis plants were and from the lights used to grow cannabis.
The accused said that it was around the year 2001 that he started growing cannabis hydroponically. He continued to grow it until he was arrested by police in May 2003. He agreed that over the two year period he spent over $10,000 on electricity, although he said: “I never looked at it like that, but now I look at it, yes”.
The accused said that in May 2003 he was doing lawns and gardening. His wife couldn’t come out and help him as much so he was mainly doing some of that on his own. He said his weekly hours of work varied, as did what he earned each week.
The accused was asked why, if he thought the large crop of sixteen plants would last him a year, did he need to grow the extra four small plants. He answered:
ABecause you can never tell just by looking at it. You can’t tell how much it’s going to be because it shrinks in size. Plants are 90% water so by the time the water dries out you’re left with bugger all, and I wanted to make sure I had enough.
QI thought the idea was just to grow one crop.
AYes, but 16, if it didn’t pan out to two ounces, I would have been short still, so I wanted to get the others to make up if I didn’t get what I needed for a year.
QDid your wife mind that you had two crops growing.
AShe didn’t really know what was going on.
QBut you said that she was upset that you were growing, for example, three crops a year.
AJust didn’t like it, yes. Not crops, plants.
QPlants a year.
AThree to four plants a year, yes.
HIS HONOUR
QI thought you said three to four times a year.
AYes, that’s right.
The accused denied that his purported use of cannabis affected his work at all and he denied that he was concerned about the fact that he was operating lawnmowers after consuming cannabis.
The accused was asked about Exhibits P15 and P16, photographs of cannabis plants. He said that he could not say whether the date on Exhibit P15 (being 11 February 2003) was correct. He said that he thought that the photograph showed a plant that was from the same crop as police found. He said the plant in photograph Exhibit P16 was a plant he had grown before he started using hydroponics. He said that was because it was an outdoor plant in a hothouse.
The accused was asked about police locating remnants of cannabis, being stems and the like, when they searched his premises. He was asked where those remnants came from. He replied: “The plant before”. He said that was before the crop of four plants in the smaller shed. At that time he was only growing two cannabis plants.
The accused was asked about the cannabis police found in his car. He said there was no particular reason why he had packaged that cannabis in smaller bags rather than one big bag. He was then asked:
QWhat about the other empty press sealed bags, what were you going to use those for.
AThe seven was it?
QYes.
AWhat was I going to use them for? I wasn’t using them for anything. They were just used ones, I presume, empty used bags from when I taken them and rolled up the joints.
The accused was asked whether there was any reason why he didn’t put the $25 in notes from the supermarket back into his wallet with the other $400. He answered:
AJust grabbed the change and walked out the shop and put the change in my pocket. I did go and look at the butcher shop to look at something, but I didn’t grab anything because there’s the supermarket fruit and veg, all that there, so I just went back to the car and put it into my console. Just like people put money in their ashtray of their car.
QYou didn’t think to get your wallet out and put the $25 in your wallet.
ANo, I forgot about it when I come home.

The accused agreed that $25 is about the rate that one would pay for a J-bag of cannabis.
Findings and conclusions
Apart perhaps from the dimensions of the sixteen cannabis plants that police found in the larger shed at the accused’s home, and the stage of their maturity, there was not much dispute about the objective facts at the disputed facts hearing. By that I mean there was not much dispute about what was found by police in the two sheds at the rear of the accused’s house and what was found by police in his motor vehicle.
I am satisfied and I find that the accused had grown cannabis plants in and around the two sheds at his property for some years. That had commenced outside in the year 2000. After commencing growing cannabis outside he moved his growing operation inside, first in the larger shed and then also in the smaller shed when power was connected to that shed in about May 2001.
I find that when police went to the accused’s home in May 2003 they found sixteen cannabis plants growing in the larger shed at the rear of the house. Those plants were nearly mature. They were growing under quite sophisticated hydroponic conditions. Police also found there what I find to be nutrients. They also found there what I find to be parts of the cannabis plant from an earlier crop. They also found cash money on the accused’s desk or table in the larger shed under a container with some parts of the cannabis plant in the container. I find that in the accused’s car police found a number of J-bags with cannabis in them. Those J-bags were in larger plastic bags. They also found seven empty press-seal plastic J-bags. They also found $25 in cash in the Port Power stubby holder. I find that a J-bag of cannabis was being sold on the street in mid-2003 for $25. The accused acknowledged that.
I am satisfied and find that for the two year period before police came to the accused’s home in May 2003 the cost of electricity to the accused’s home was over $10,000. Although the electricity costs had grown from early 2001 until the middle of 2003, they were at their highest in early 2003. I do not believe the accused’s evidence that he had never looked at the electricity costs “like that”. I have no doubt that the accused well knew the cost of electricity during that period and that he also well knew that the high cost of electricity was in large measure due to his hydroponic growing of cannabis.
Although there was considerable cross-examination of police witnesses as to, in particular, the height of the sixteen cannabis plants the police found in the larger shed, the accused ultimately gave no evidence about their height. Nor, for that matter, did he give any evidence about their habit, in the sense as to whether they were bushy, normal, spindly, or very spindly, as to how mature the plants were or otherwise as to their condition.
I am satisfied and find that the sixteen plants in the larger shed were nearly ready for harvesting, that they were at least one metre tall (including the pot) and that they were between 0.5 metres and 0.75 metres wide.
I am satisfied and find that each plant would have yielded at least 150g of dry useable material at harvest. I find that that was the minimum that could have been expected. I find that the value of such useable material, if sold per gram in J-bags, would have realized between $36,000 and $72,000. I am satisfied and find that the accused was aware of these matters in May 2003, at least in general terms.
I am satisfied and find that the four plants in the smaller shed were not fully mature and that none of them would, in May 2003 or shortly afterwards, have yielded as much useable material as the sixteen plants in the larger shed. I find that the accused started growing those four plants after the crop of sixteen plants in the larger shed was well under way.
I am satisfied and find that the sixteen larger plants had nearly reached maturity and had police not gone to the accused’s home he would have harvested them within weeks of May 2003. I am satisfied and find that the smaller plants would have then been moved by the accused to the larger shed until they were mature and ready for harvest. I am unable to make any findings as to the value of the four plants but I am satisfied and find that the accused was hopeful of ultimately harvesting significant useable material from those plants.
As to the cannabis police found in the accused’s vehicle I do not believe the accused’s evidence that that cannabis was there and that it was packaged as it was for him to take on a fishing trip for his own consumption. I also do not believe the accused’s evidence regarding the $25 in the Port Power stubby holder.
As to the cash of $250 police found on the accused’s table or bench in the larger shed I do not believe the accused’s evidence that that cash was for rent. The evidence he gave as to that was quite unconvincing and I consider that he made up that explanation. I am satisfied and find that that money was proceeds of the accused’s commercial dealing in cannabis.
I am satisfied that the money found by police in the accused’s wallet on 9 May 2003 was more likely to have come from a rediteller the accused had used the day before police came to his house.
I find that the accused had not only expended a considerable sum of money on electricity relating to the hydroponic growing of cannabis but that he had expended considerable sums on establishing the hydroponic establishment he had assembled both in the larger shed and in the smaller shed at his property.
On the basis of the findings I have set out above, my conclusion is that I am satisfied beyond reasonable doubt that by the time police came to the accused’s house in May 2003 the accused had taken part in the production of all the cannabis the police found there, in both sheds, for the purpose of selling to other people some of what he would have harvested from the two crops. I am satisfied beyond reasonable doubt that the packaged cannabis in his vehicle was intended to be sold by him to other people, and that that cannabis had been produced by the accused. I am satisfied beyond reasonable doubt that the cash found on the accused’s table in the larger shed and the $25 in the Port Power stubby holder represented proceeds from the sale of cannabis by the accused.
I am satisfied that it is probable that the accused would have intended himself to use some of the cannabis he would have harvested from the crops found by police at his home. I am unable to make findings as to how much of the cannabis police found at the accused’s house the accused would have intended to sell, and how much he would have intended to use himself. I am satisfied beyond reasonable doubt, however, that he intended to sell a not insignificant part of that cannabis after harvest.
I shall sentence the accused on the basis of these findings.