R v Roumanas - [2007] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v ROUMANAS
[2007] SADC 79
Reasons for Ruling of His Honour Judge Tilmouth
31 July 2007
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Defendant charged with two counts of producing cannabis, one alleged to be for more than personal supply.
Held: at least half of cannabis was for commercial purposes.
Controlled Substances Act 1984 ss33(1)(a), 44, referred to.
Olbrich v The Queen (1999) 199 CLR 270 at [27]; R v Selita (2004) 149 A Crim R 243, considered.

R v ROUMANAS
[2007] SADC 79
The Charges

Ms McInnes SM sitting in the Port Adelaide Magistrates Court on 19 July 2006, committed Peter John Roumanas to this court for sentence on two counts of producing a controlled substance, namely cannabis, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA) (“the Act”). Convictions were recorded by dint of the administration of the allocutus in this court on those charges on 21 August 2006.
Both offences were alleged to have taken place between 1 February 2006 and 23 April 2006 at the home of Mr Roumanas in Woodville. The first concerned 15 cannabis plants and the second involved amounts of cannabis either found inside the home or in a rear shed, when police searched the property on 21 April 2006. Although count 1 is a summary offence and count 2 is a major indictable offence, this Court has jurisdiction to try both pursuant to s 9(3) of the District Court Act 1991 (SA).
Disputed facts
The proceedings to which this present ruling relates, concerns a dispute between the defence and the prosecution as to the degree of commerciality involved in relation to count 2, if any. No such allegation is made with respect to count 1, although it is said to be circumstantial evidence admissible in relation to count 2 when combined with all the other evidence to be referred to later, leading to the conclusion that there was a significant element of commerciality involved. The defence contends on the other hand that the cannabis produced and found on the premises was solely for “personal consumption”[1] although there was no doubt that Mr Roumanas also intended to share it with his group of friends, who at that time were regular social users[2].
[1] T76 L38
[2] T79 L2-L19
This factual dispute is of some consequence penalty-wise. Section 44(d)(i) of the Act requires the court to consider “the commercial or other motives of the convicted person in committing the offence”. A relevant matter in the exercise of the sentencing discretion is therefore the amount of cannabis involved over and above that destined for personal use. For that purpose the sentencing court is entitled to embark on an analysis of the potential useable weight after drying, so that a maximum and minimum estimate may be made. After undertaking this process, the court may then proceed to sentence having regard to the minimum calculated weight of cannabis available for commercial disposal, as a relevant consideration.
However s44 excludes the consideration of the financial gain likely to have accrued to the convicted person as a result of the commission of the offence, when an application under the Criminal Assets Confiscation Act 2005 has been made: s44(d)(ii) of the Act. In this case it was proved that on 6 June 2006 a Judge of this court made a restraining order over the subject real property, as well as the Commonwealth bank account operated by Mr Roumanas and a Commodore sedan owned by him.[3] Pursuant to s74 of the former Act, statutory forfeiture occurs six months after conviction, or if an “extension order” is in force, “not later than 15 months” from the date of conviction: s75(2). On any view more than six months from the date of conviction now appears to have elapsed – no reference was made one way or the other as to any extension orders being in place.
[3] Exhibit D10, T71 L24 – T72 L2, T73 L1 – L15
Count 2 recites the alleged level of production as being “in excess of 2 kilograms”, pleaded as such for the express purpose of invoking s 32(5) B(ii) of the Act, the effect of which is to attract a penalty not exceeding $50,000 or imprisonment for 10 years or both. Had the cannabis involved been less that this, the maximum penalty was limited to $2,000 or 2 years imprisonment or both, on summary conviction: s32(5) B(iii).
The ambit of the alleged aggravating circumstances
The prosecution does not rely on any deeming provision, so that in the end result it is required to prove the degree or extent of commerciality, as an aggravating circumstance, beyond reasonable doubt.[4]
[4] Anderson v The Queen (1993) 177 CLR 520 at 536, 67 A Crim R 582 at 594, Olbrichv The Queen (1999) 199 CLR 270 at [27], R v Lobban (2001) 80 SASR 550; (2001) 126 A Crim R 468 at [28]
The prosecution case is built around material and other items of evidence found on the premises on 21 April and the inferences that might be drawn from them. In general terms the prosecutor points to the manner of past involvement, the period of time over which cannabis was grown, the sophisticated and extensive nature of the hydroponic equipment used, the potential value of the cannabis involved, the significant sum of cash located in the house, as well as the sums of money passing through the bank account of the defendant and the apparatus associated with sale found there.
Inside the house, police located five plants growing hydroponically, each approximately 50cm tall (item 6, photographs 11 and 12 of Ex. AW 1), seized from an office. A further five plants 50cm tall also grown hydroponically, were taken from a bedroom and were seen to be of “healthy and bushy” appearance (photographs 31 and 32 of Ex. AW 1). In the same room, there were five trays of cannabis comprising the flowering heads of the female plant, drying on newspaper (item 27 photographs 40 - 44 in Ex AW 1). These weighed in a “moist and slightly mouldy” condition, 2.828gms, that is over one-fifth of 10 kilograms prescribed by s 32(5a)(b) of the Act: hence the averment to “in excess of 2 kilograms” in count 2.
There was evidence that the weight of this material would reduce by as much as 75% as it dried. As the law presently stands the weight for the purposes of s 32(5a)(b) of the Act and R10 of the Controlled Substances (Prohibited Substances) Regulations 2000, is taken to be that at the time of seizure, being the quantity involved in the commission of the offence, whatever its condition and despite the anomalies or inconsistencies that might sometimes produce: R v Selita.[5] The resultant dry weight was therefore likely to be around 700gms on the most favourable view to the defendant.
[5] (2004) 149 A Crim R 243; [2004] SASC 292, refer also to R v Leung (1999) 202 LSJS 243; (1999) 105 A Crim R 398
In a rear shed police officers found a further five female cannabis plants, also grown hydroponically, each approximately a metre tall in “healthy and mature” condition (photographs 59 and 60 of Ex. AW 1). If harvested there and then, in the estimate of Ms McKew, they would have yielded a total of approximately 750gm and more if grown to full maturity.
Of potentially more moment was the discovery of $130,000 exactly, in cash, in a red biscuit tin, the lid of which was sealed with adhesive tape, found in Mr Roumanas’ bedroom atop a cupboard. These were bundled into $10,000 lots. They also located scales in the cupboard, some plastic sealing bags, a heat sealer for those bags and in another cupboard of the bedroom, chemicals associated with the cultivation of cannabis, together with other household effects one would not ordinarily expect to find in a bedroom.
Electricity accounts were tendered to suggest that an unusually high quantity of electricity was consumed on the premises from around late August 2002 through to June 2006, consistent with the production of cannabis recent to police attending the premises, as well as earlier. Indeed Mr Roumanas frankly volunteered in evidence that he had grown several crops in the past, this being his fifth.[6] His evidence was that he had become a more proficient grower “through trial and error”[7] and that it wasn’t until his third attempt a year beforehand that he achieved “something worth having”.[8]
[6] T89 L35 – T90 L16
[7] T75 L28
[8] T76 L3
No objection was taken to the admissibility of this evidence, no doubt for good reason. Sentencing judges are clearly entitled to have regard to the context in which a crime is said to have been committed, especially if the evidence collected on the subject occasion as “an incident in the course of a continuing commercial dealing in the drug”.[9]
[9] R v Taddeo (1993) 67 A Crim R 338 at 339, R v Mangelsdorf & Ors (1995) 66 SASR 60 at 69 and Weininger v The Queen (2003) 212 CLR 629 at 639-640
In the course of its case, the prosecution tendered (with the consent of the defence) a number of statements of witnesses and called only one witness, that of the forensic scientist Ms McKew. Apart from the matters already alluded to, the general tenor of her evidence was to the effect that cannabis plants once grown to maturity, reach a maximum height of between about 1 and 1.5 metres, and might yield as little as 20gms of cannabis and as much as 1.5kg. She said that for practical purposes only the female species would be commercially used and propagated seeds ordinarily yield 50% male and 50% female plants. She further gave evidence that the samples submitted to her were female cannabis plant samples, being those shown in the photographs AW1, photographs 11 and 12, 31 and 32 and 59 and 60 respectively.[10]
[10] Certificate of Analysis 9 May 2006
As to the female flowering heads found drying, depicted as noted in AW1 photographs 40 to 44 inclusive, her evidence was that the cannabis plant once pulled from the ground will experience a 73% to 75% water or weight loss, to the point of becoming completely dry. She was not able to tell how long before it was that those on the drying trays were harvested.[11] Mr Roumanas gave evidence on this point that he did so about one and half days earlier[12]. The appearance of the material, as guarded as one must be because it was photographed under artificial light conditions, is consistent with that evidence. As all the material was found drying on newspaper dated 16 April 2006,[13] they could not have been placed there any earlier, so that and the condition in which they were found, suggests this evidence is reasonable and therefore acceptable enough.
[11] T 15 L6 – L13
[12] T77 L33
[13] Statement of Constable Parker 10 June 2006 p3.3
The prosecution also tendered banking records of the accounts kept by Mr Roumanas with the Commonwealth Bank of Australia, being either a “cash management call account” or a “streamline account”. These were respectively the exhibits A to G inclusive annexed to the affidavit of Mr Middleton and the exhibit P1. As a general consideration, these reveal that Mr Roumanas was always substantially in credit, over an extended period of time, by as much as several hundreds of thousands of dollars from time to time. They also show several appreciable cash deposits in the period to which they relate, between about August 2001 and December 2005. The balance in his account at the time of the restraining order of 25 May 2006, was $281,861.06.[14] These too were relied upon by the prosecution as indicative of a man having financial resources going well beyond his apparent legitimate earning means. Finally in that context, the prosecutor points to the cash payment of $50,000 for the purchase of a Monaro sedan on 20 December 2005.[15]
[14] Exhibit D10.
[15] Exhibit P1 P56, T81 L2 – L11, T103 L36 – T 104 L25
Aspects of the defence case
The defence tendered a bundle of income tax assessment notices for the complete period between June 1994 and June 2006.[16] These certainly prove consistent employment, commencing with a taxable income to 30 June 1994 of $11,640, building up by 30 June 2006 to $44,358, with varying earnings between those over the intervening years. There is no doubt that Mr Roumanas held steady and consistent employment or self-employment over the years and that in addition he often undertook cash jobs as a painter out of regular work hours during the course of the year, particularly at busy times over the Christmas period[17].
[16] Exhibit D5
[17] T53 L15 – L21
For some time, including the present, it appears that he was a self-employed courier driver, working for a bakery between 5am and 11am in that business, providing the opportunity to attend other work afterwards.[18] His evidence was that he regularly banked $500 of $900 gross earned per week of the cash money he received in his courier business and retained the rest, as well as the additional earnings, for ongoing living expenses and the like.[19] The financial records substantially bear that out.
[18] T53 L23 – L26
[19] T52 L18-L25, T53 L28 – T54 L15
Mr Roumanas at all material times was and still is a single man, now aged 40 years, having no dependents, so he would have relatively minimal weekly expenditure apart from his own living expenses. He purchased a house during 1995 in Zetland, Sydney which virtually doubled in price when sold in 2002, the proceeds of which he banked. The exhibits tendered by him conclusively prove those facts.[20] Likewise the exhibits prove[21] that when he returned to Adelaide in about August of 2002, he purchased the subject property from funds received from the Sydney property,[22] as recorded in the bank accounts. It is unencumbered. Both properties were relatively modest purchases.
[20] Exhibits D1, D2, D3
[21] Exhibit D$
[22] Exhibits D3, D4
Other significant cash deposits were shown to be genuine, namely a $13,138 sum from a termination payment (Exhibit D6), $1,985.55 from a share ‘buy-back’ involving IAG (Exhibits D7 & D7A) and winnings of $14,831.60 from two substantial bets on the Melbourne cup of 1 November 2005 (Exhibit D8).
The defence also called a Mr Giorgio to explain three cash deposits, as to which the defendant also gave evidence, they being payments sent by Mr Giorgio to Mr Roumanas by courier, purportedly as rent from Mr Giorgio and his family for the defendant’s then Sydney property. They were paid by Mr Roumanas into his bank account.
The first of these was a deposit of $9,000 on 30 June 2005,[23] the second a deposit of $8,010 on 12 January 2006[24] and the third a deposit of $10,000 exactly on 7 April 2006.[25] The evidence of both was that there was an informal arrangement between them for a lease at about $350 a week, for a period which seemed to be in the order of eighteen months.[26] This came about following extensive damage to the Giorgio house in Redfern caused by severe storms in Sydney in early 2001. They were close friends, a friendship going back to their primary school days in Adelaide.
[23] Exhibit P1, P51
[24] Exhibit P1, P57
[25] Exhibit P1, P60
[26] T40 L2, T64 L33
That there was such an informal arrangement between close friends in the circumstances may be accepted. The other aspect of the arrangement was the rental was to be paid as and when Mr Giorgio could afford it, which is also understandable enough. It did not emerge whether this source of income was declared for tax purposes, but it would appear with the cost of housing in Sydney as it was at the time, that this was a relatively generous arrangement from the Giorgios’ point of view.
All the same, what is more surprising to say the least, is that such substantial amounts of cash were forwarded, presumably once Mr Giorgio was on firmer financial terms, by Express Post to Mr Roumanas in Adelaide.[27] When pressed in cross-examination why this money could not have been deposited direct into the account of Mr Roumanas, the evidence of Mr Giorgio was unconvincing[28] as was the evidence of Mr Roumanas on this point.[29] It is near impossible to understand why a man in Mr Giorgio’s straightened forward financial circumstances would run the risk of losing so much money by sending cash to Adelaide. It is difficult to accept their evidence in relation to this topic on that account.
[27] T65 L25 – 31
[28] T69 L5-L34
[29] T105 L2-L18
On the other hand, had this money been the proceeds of unlawful dealing in cannabis and singly deposited by Mr Roumanas, it is difficult to appreciate why he would have created a paper trail of the illegally obtained proceeds. In the result, whilst remaining deeply suspicious about this matter for the reasons mentioned, there was a reasonable doubt about the circumstances, so that this evidence plays no part in the reasoning to follow.
The cash float and gambling winnings
Turning to the $130,000 cash found on top of the cupboard, this comprised exactly $130,000, exclusively made up of 100 and 50 dollar bills. The defendant explained this was his cash float or “gambling fund” for the purposes of gambling, one built up steadily over the years.[30] His evidence was that he was a regular gambler particularly in the years concerned here and that he bet extensively on horse races with the Totalisator Agency Board (TAB); gambling was his “passion”.[31] He produced (Exhibit D9) the original tickets showing, at first sight, the astonishing fact that in the period between 19 March 2003 and 15 February 2006, he won a total of $147,023.20 by betting in that way. This material certainly proves that he was a substantial punter.
[30] T51 L16 – T52 L13
[31] T94 L2 – L16
The prosecution sought to cast doubt as to these all being his, suggesting they did not necessarily prove personal winnings as they might have been scavenged by him from the floor of various TAB agencies, not all frequented by him.[32] However the prosecution has not proved for the most part, the business system by which these tickets are produced or just how they indicate issue from different and which agencies. In the absence of such material, it is simply not possible to draw any conclusive incriminating inferences about such matters adverse to the defence.
[32] T115 L13 – T118 L16
The evidence-in-chief of Mr Roumanas barely touched the question of what losses he might have suffered over the same period, if any.[33] Under cross-examination the court hardly became any better informed.[34] It is difficult in this state of the evidence to appreciate just what his losses were expressed in money terms, as a percentage of winnings, or in any other measurable terms for that matter. In that respect his evidence was as uninformative as it was unforthcoming. It is notorious that betting is an inherently risky business, as the defendant himself acknowledged.[35] It remains a disturbing aspect of this evidence, that it paints in exhaustive terms the positive side of the gambling, but barely touches the negative side, as if there was something to suppress. Lord Justice Mansfield once famously expressed the proposition of commonsense that evidence is to be “weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted” [36]. This, as to that topic, is such a case.
[33] T5 L5-L10
[34] T94 L32 – T96 L23
[35] T96 L8-9
[36] Blatch v Acher (1774) 98 ER 969 at 970
Further analysis of the issues
It may be readily accepted the “passion”[37] of Mr Roumanas was gambling and that he at times gambled heavily on the TAB in particular, conducted by means of a cash float dedicated to this end. It may well be that he has done so for upwards of two decades or so. It is also accepted that he is a man having no financial obligations to others and who earned and banked enough money ($500 a week) to get by on the balance of his regular and part-time employment.
[37] T94 L16

None of this explains why a float in such a large sum was necessary, or how it came to grow to that extent, from winnings alone. As mentioned already, it was in the hands of Mr Roumanas to demonstrate what his losses might have been and failing to do that, in combination with all the other circumstances, makes it impossible to accept as a reasonable possibility the entire sum of cash found in the bedroom is solely attributable to the winnings made on gambling. What we are left with then is that consideration, coupled with the quantity of cannabis found at the property.
The evidence of Mr Roumanas was that before beginning growing for his own consumption, he consumed perhaps an ounce or “just over” per week.[38] These had then cost him about $150 per ounce.[39] As mentioned, this crop of drying cannabis was his fifth. It was “by far the best yield so far”,[40] one resulting from just five plants.[41] That too may be accepted. However, by this time round, he had already produced cannabis to the point of commencing the drying process, which was likely to yield, at best for him, somewhere between 700 grams and one kilogram, once those female heads were completely dried. In round terms an ounce is about 28 grams, so on that basis, very roughly calculated there was somewhere between 20 and 30 weeks or thereabouts available for self-supply at that rate of personal use.
[38] T88 L8-L20
[39] T78 L38 – T79 L19, T87 L30 – T88 L20
[40] T76 L34
[41] T78 L3 – L6
Mr Roumanas also had in the pipeline a further fifteen plants at three staggered stages of development. The evidence was not that clear as to when they were likely to reach full maturity or so far as growing time is concerned. Mr Roumanas did say his growing cycle was three months.[42] As they were all female plants,[43] they certainly would have been used for the purposes of producing smokeable cannabis. The statement of Ms McKew of 29 August 2006 and her other evidence did not really deal with this topic specifically either. Her conservative estimate of the likely yield[44] was somewhere between 20 grams and as much as 1.5 kilogram, depending on maturity when harvested. As to those at the one metre stage, her estimate was that these would “yield up to approximately 150 grams of dry usable material each” and as mentioned already the figure would increase as maturity progressed. The three batches of five plants were therefore capable of yielding on reaching full maturity, as they were likely to do on the growing habits and expectations of Mr Roumanas, no less than 700 grams of dry usable material. The total of those, plus the drying material was therefore likely to be no less than about 2.8 kg when dried. The total quantity on his level of personal consumption would last approximately one and a half years.
[42] T78 L7 – L14
[43] Certificate of Analysis
[44] T14 L1-L2
A submission was put by Mr Dadds that it was uncertain from the evidence of Ms McKew, read in conjunction with her statement and her certificate, whether those estimates were based on dry or on “wet” weight. She was cross-examined closely in relation to this topic.[45] However the statement itself immediately before the table, refers with emphasis “dry leaf and flower material (ie usable material)”.[46] The table itself would make no sense if based on wet weight and the whole tenor of the statement is in relation to dry plant. For those reasons, that submission should be rejected.
[45] T23 L1 – T24 L5
[46] Statement 29 August 2006 P2
In the result there were three lots of five cannabis plants coming on stream, one close to maturity, one possibly somewhere between one third and half-way there and one in the early stages of production, all of them healthy female specimens. The hydroponic conditions were quite sophisticated and extensive.[47]
[47] Statement of Mr Parker 10 June 2006 p3
As Mr Roumanas conceded growing by this time under conditions of some experience and knowledge on his part, it was highly likely that a good proportion of them would have progressed to full maturity. The drying flowering heads found on the trays support that inference. On the evidence presented to the court, this cannabis could have fetched between $200 - $300 when sold in one once (or 28 gram) lots and between $2,200 and $3,500 in one pound (or 450 gram) lots, depending of course on quality and availability.[48]
[48] Statement of Mr Abbott 24 August 2006, p4
Giving every allowance for failure, the court finds beyond reasonable doubt that each batch of the plants is likely to have yielded no less than 700 grams of cannabis, a total of a further 2.1 kilograms, within three months or so.
On that premise, once again employing the same rough calculations undertaken above, each batch of five plants was likely to yield at least twenty weeks self-supply. Total supply was therefore in the order of no less than 60 weeks, far more than was necessary to satisfy the defendant and his friends’ average needs.
Given the quantity of flowering head already under drying conditions and given the three sets of five plants growing about to come on line, it is impossible to accept as a reasonable possibility that the drying cannabis, the subject of count 2 could possibly have all been for personal use.
Accordingly the court finds beyond reasonable doubt that no less than half of the material produced by Mr Roumanas comprising count 2, must have been destined for commercial purposes. It is not reasonable to conclude the total amount of cannabis was merely being stockpiled for personal use. This conclusion is reinforced by the combination of the facts that cannabis continued to be produced on a regular basis, the large amount of cash in his possession not all of which can be explained by his prolific gambling habits, the fact that it is difficult to appreciate why he would keep such a large cash float over the years (even though he avoided the tax on bank interest), together with the risks associated with keeping money on private premises.
It is also one consistent with the scales being found in the wardrobe of his bedroom and the plastic sealer bags located there. Whilst Mr Roumanas proffered an explanation for each, weighing out of curiosity with respect to the first and using the sealer bags to store food obtained from the bakery,[49] when viewed in the context of all the circumstantial evidence, must be rejected as reasonable explanations consistent with innocence. It is barely tenable that scales would be used in occasional weighing for curiosity’s sake and if the plastic sealer bags were for food, it is unlikely they would have been kept in bedroom, even though many other household items were stored in the bedroom cupboard[50].
[49] T86 L7 – T87 L9
[50] See AW1 photo 18 for instance.
Although he may well have commenced producing cannabis for his own use, Mr Roumanas was no longer an inexperienced amateur. By mid 2006 he reached such a stage of sophistication allowing him to produce more than he needed, as the quantities of cannabis found in his house and his shed clearly demonstrate. The court is unable to make any conclusive findings as to elements of commerciality before-hand and of course he is not charged with any such offence. Although the background is relevant, it may well have been that up to this stage he had only achieved commercial proportions by the time of the fifth crop, but he had certainly crossed the line when it came to count 2. As the Monaro was purchased some four months before 23 April 2006, that is before the crop producing the 2.828 grams of drying material was likely to have been propagated, it is not possible on the evidence adduced in this matter to reach any conclusive view as to the source of the purchase funds for that.
Conclusion
The finding of the court therefore is that at least half of the drying cannabis found on the premises the subject of count 2, was destined for commercial purposes. The court will now proceed to hear submissions as to penalty, in light of these findings.