R v Selita - [2004] SASC 292

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SELITA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)
17 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appeal against sentence - appellant convicted for possession of cannabis for sale or supply pursuant to s32(1)(e) of the Controlled Substances Act 1984 (SA) - confession made to all elements of offence - appellant pleaded guilty to possession for supply but disputed possession was for purpose of sale - disputed facts hearing re appellant's involvement in sale - 18 month suspended sentence imposed in District Court - sentence upheld on appeal - no distinction made between supply and sale - sentencing judge erred in finding onus on Crown to prove commerciality - conclusions and findings set aside but sentence found to be appropriate - appeal dismissed.
Controlled Substances Act 1984 (SA) ss 4, 32, 44; Criminal Law Consolidation Act 1935 (SA) s 353(4), referred to.
R v Hoang (2002) 83 SASR 254; R v Rowan (2003) 85 SASR 364; R v Rear [1965] 2 QB 290; R v Leung (1999) 105 A Crim R 398, considered.

R v SELITA
[2004] SASC 292
Court of Criminal Appeal: Perry, Nyland and Gray JJ

PERRY J. This is an appeal by leave against the sentence imposed upon the appellant on a charge of possessing cannabis for sale or supply.
Upon his arraignment in the District Court on 14 July 2003, a plea was recorded in the following terms, as noted on the Information:
“Not guilty for sale but guilty to supply. Not accepted by the DPP in satisfaction of the charge. No allocatus given.”
On 28 August 2003, the sentencing judge conducted what was described as a disputed facts hearing. At the hearing, no oral evidence was called by the Crown, but the witness statements and an agreed statement of facts were tendered. The appellant gave oral evidence.
On 10 November 2003, the sentencing judge gave a ruling as to the disputed facts, as to which he published written reasons.
He remanded the appellant to 26 November 2003 for submissions on sentence, which he received on that date, following which he remanded the appellant for sentence.
On 19 December 2003, the sentencing judge passed sentence and ordered that the appellant be imprisoned for 18 months with a non-parole period of 9 months. The sentence of imprisonment was suspended on the entry by the appellant into a two year good behaviour bond in the sum of $500.
It is from that sentence that the appeal is brought.
The notice of appeal, as amended, purports to be an appeal against both conviction and sentence.
However, leave was given only to appeal against the sentence.
In the notice of appeal, four grounds are set out as to the proposed appeal against conviction, and one ground (that the sentence was manifestly excessive) with respect to the appeal against sentence.
The grounds alleged with respect to the proposed appeal against conviction are as follows:
“1.The learned judge erred in determining that the appellant had the onus of proof on the disputed facts hearing when such onus was on the prosecution.
2.The learned judge erred in finding the appellant guilty of possessing cannabis for sale.
3.The learned sentencing judge erred in adopting as the maximum penalty of this offence, the range of penalties set out in section 35(5)(B)(a)(i) of the Controlled Substances Act 1984, namely imprisonment for 25 years and/or a fine of $500,000.00.
4.The learned sentencing judge erred in concluding that the quantity of cannabis involved in the commission of the offence equalled or exceeded 10 kilograms.”
Those grounds, with the possible exception of ground 2, are relevant to the appeal against sentence for reasons which I will in due course explain. I will, therefore, address them in the context of the appeal against sentence.
Background Circumstances
On Sunday 3 November 2002, a police officer observed the appellant emerge from a house at Woodville. He appeared to be carrying a number of plastic bags.
The appellant placed the bags in a car and drove off in the car.
The police officer followed the appellant as he drove off. The appellant stopped and parked the car at an address at Kilkenny. After the appellant emerged from the car, the police officer approached, whereupon the appellant ran off.
He was located and arrested by a police patrol shortly afterwards.
The plastic bags turned out to be filled with freshly harvested cannabis leaves.
On the defended facts hearing, the appellant said in evidence that he had received a telephone call while he was in a coffee shop at Findon from “someone”, whom he did not name, who told him to go to the address at Woodville to pick up “some flowers”. The keys to the house would be in the letter box.
He complied with this instruction, and went to the house. On entry, he located a pair of scissors and cut up two marijuana plants, which he placed in five garbage bags, which were the bags subsequently seen by the police officer and later seized.
There was no evidence of any occupier of the house, but installed in the house was an extensive hydroponics set-up for cultivating cannabis.
The appellant’s evidence was that he was to “send” the five garbage bags containing the flowers “somewhere else”. He did not say where that was to be, except that in cross-examination he said that he was to deliver it to the man who had telephoned him.
He said that he had never been to the house before.
In cross-examination, the appellant said that the person who had asked him to go to the house was “not a close friend”. He understood that he was to receive a small amount of the cannabis, for his assistance.
When it was put to him in cross-examination that he “must have been aware, from the circumstances of the set up of that house, that someone was intending to sell that cannabis”, he said “I don’t know”.
In the information upon which the appellant was charged, it is alleged by way of particulars that the amount of cannabis was in excess of 10 kilograms.
However, at the hearing, and for sentencing purposes, the sentencing judge noted that the Crown accepted that the quantity which was relevant for his consideration was what he described as the “dry, saleable quantity”. It was accepted that using the maximum “dry-off” rate of 80 per cent, the quantity of cannabis would reduce to 2.114 kilograms, representing a street value of between $11,650 and $35,200. The sentencing judge accepted that a further reduction, of about a third, was warranted by reason of the fact that the cannabis included some “useless stem material”.
I agree with Gray J that in sentencing, although the scale of penalties cannot be determined by the weight of the drug at the time of the commission of the offence, some allowance may be made for the fact that the “dry, saleable quantity” was less.
The plea and other procedural matters
With respect to the trial judge, the procedure adopted on the taking of the appellant’s plea was irregular.
The information stated that the offence was “possessing cannabis for sale or supply”, contrary to s 32(1)(e) of the Controlled Substances Act 1984.
Although what was alleged was “sale or supply”, all that was charged was one offence. The use of the disjunctive “or” merely identified two ways by which the offence might be proved.[1]
[1] R v Hoang (2002) 83 SASR 254.
The particulars of the offence, as set out in the information, read as follows:
“Aleksander Selita on the 3^rd day of November 2002 at Kilkenny, knowingly had cannabis, a prohibited substance, in his possession for the purposes of selling or supplying it to another person.
It is further alleged that the amount of cannabis was in excess of 10 kilograms.”
To plead the charge in that way is justified where the prosecution is unable to offer evidence indicating that the purpose was one or other of the alternatives of sale or supply.
In Hoang (supra), this Court held that an information cast in those terms was not duplicitous.
When the appellant pleaded “not guilty for sale but guilty to supply”, and counsel for the DPP indicated that the plea was not accepted in satisfaction of the charge, the proper course would be for the trial judge to treat the plea as a plea of not guilty.
It was not open for the appellant to plead to only one of the two modes by which the offence might be committed, when the Crown wished to proceed with respect to both and when the Crown rejected his plea to one of the modes alleged.
A further irregularity occurred when the allocatus was omitted, but the hearing then proceeded by way of a disputed facts inquiry as on a plea of guilty.
In the opening paragraph of his sentencing remarks the sentencing judge said:
“You have pleaded guilty to possessing cannabis for sale or supply contrary to s 32(1)(c) of the Controlled Substances Act.”
Strictly, so far as I can tell from the record, this was not so.
However, in the events which happened, I do not think that the procedural irregularities produced an outcome any different from what would have occurred if the matter had proceeded regularly.
I agree with Gray J that the omission of the allocatus was of no practical consequence.
If the appellant had simply pleaded guilty to the charge as formulated, it would have been open for his counsel to submit by way of mitigation that his client should be sentenced on the basis that his possession was attributable to supply only. A disputed fact hearing would, presumably, then have ensued, as in fact happened.
In Collins,[2] the Court of Criminal Appeal of Western Australia dealt with an application for leave to appeal against the sentence imposed upon the applicant’s plea of guilty to a charge of possession of a quantity of cannabis with intent to sell or supply it to another contrary to s 6 of the Misuse of Drugs Act 1981 (WA).
[2] (1993) 67 A Crim R 104.
Following his plea of guilty to the charge, submissions were made on behalf of the applicant to the sentencing judge that only a minor portion of the cannabis which was found in his possession was intended to be supplied to friends and that the bulk of it was for his own use.
The court held that the plea in mitigation was inconsistent with the plea of guilty. By the plea of guilty the applicant had admitted that he was in possession of the full amount of the drug (1.2 kilograms) with intent to sell or supply it to another. During the course of his judgment in that case, Malcolm CJ said:[3]
“Having pleaded guilty to the offence of possession of the cannabis with intent to sell or supply it and the quantity having been shown to be 1.2 kilograms, it was not open to the applicant to attempt to rebut the presumption with respect to part of the quantity by means of a plea in mitigation. It would be possible for him to put forward in mitigation what quantity he intended to supply. It may be that he could put forward that he intended to supply all of it and not to sell any of it.” (my emphasis)
[3] Ibid 106.
A similar approach should have been adopted in this case. If the appellant had pleaded guilty to sale or supply, it was open for him to submit that the evidence fell short of supporting a finding that any of it was for sale, and that it went no further than proving a purpose of supply.
If issue had been joined on such a submission, the trial judge could properly proceed with a disputed fact hearing.
In the events which happened, that is what the trial judge in fact did, and after hearing the relevant evidence, he concluded that he should sentence on the basis asserted by the Crown, namely that the cannabis, or some of it, was intended for sale.
However, I agree with Gray J that in the process of doing so, the sentencing judge erred in holding that the appellant had the onus of proof on the disputed facts hearing.
That he clearly held that the onus was on the applicant in that respect appears from the following passage in his reasons for ruling.
“6.The amount of cannabis seized was in excess of 100g. Accordingly, there is a presumption in favour of the Crown that the cannabis was possessed for sale or supply. The onus is on the defendant to rebut the presumption on the balance of probabilities. So in this instance, the defendant must establish, on the balance of probabilities, that he did not know or could not reasonably have suspected from the circumstances that the marijuana was to be used for the purposes of sale.”
The sentencing judge’s reference to onus in that passage, following upon his reference to the weight of the cannabis seized, is obviously a reference to the onus of proof which would arise by reason of the operation of s 32(3) of the Controlled Substances Act 1984.
Section 32 provides for the offences of possession of drugs for sale or supply, and other drug related offences.
Section 32(3) reads:
“32.(3) For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.”
Given the weight of cannabis in the appellant’s possession, if he had contested the charge, the onus would have been upon him to prove on the balance of probabilities that the purpose was not for sale or supply.[4]
[4] R v Reed (1993) 65 A Crim R 434.
But upon the appellant’s plea of guilty, s 32(3) had no work to do. Different considerations then arose.
Section 44 of the Act sets out various matters to be considered when the court fixes penalties for breaches of the Act. Amongst the matters to be considered are “the commercial or other motives of the convicted person in committing the offence” (s 44(d)(i)).
Commercial purpose being a circumstance of aggravation, the onus of proof of commercial purpose lies on the Crown. Furthermore, the standard of proof is proof beyond reasonable doubt: see Anderson v Reg[5] in the joint judgment of Deane, Toohey and Gaudron JJ:[6]
“If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist.” (footnotes omitted)
[5] (1993) 177 CLR 520.
[6] Ibid at 536.
It follows that the findings made following the disputed facts hearing are tainted by error, in that the sentencing judge applied the wrong onus of proof.
Ordinarily, this would have the consequence that the sentence should be quashed and the matter remitted to the District Court for reconsideration of the question of penalty.
However, I agree with Gray J that even on the version of fact put forward by the appellant, it has not been shown that the sentence was manifestly excessive.
I would dismiss the appeal.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Gray J.
GRAY J:
Introduction
This is an appeal against sentence.
Aleksander Selita, the appellant, was convicted of the offence of possession of cannabis for sale or supply contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA). The conviction followed a plea in the District Court. The appellant entered a plea of not guilty to sale, but guilty to supply.
A disputed facts hearing was conducted by the learned sentencing judge who concluded that the appellant was in possession for the purposes of sale. The appellant was sentenced to 18 months imprisonment. A non-parole period of nine months was fixed. The sentence was suspended.
On 3 November 2002 the appellant was observed by police leaving domestic premises with five plastic bags which he then placed in his vehicle. He was approached by police. He ran off but was later detained. The bags were found to contain recently harvested cannabis. Police subsequently searched the premises and discovered a hydroponically cultivated cannabis crop. The premises were unoccupied. The cannabis was weighed on 14 November 2002 at a total weight of 10.57 kilograms.
It was the appellant’s case that he had received a request by telephone to attend the premises and remove the flowers from some of the plants. He was then to deliver the harvested cannabis to a nominated location. He was to receive a small amount of cannabis by way of payment.
The appellant went to the premises and stripped and bagged two plants. He then loaded five bags into his vehicle. He intended to make the delivery as requested. He asserted that he did not know that the cannabis would be sold. He claimed that he did not know that the set-up at the premises involved a commercial operation.
The Plea
The charge was possession of cannabis for sale or supply contrary to section 32(1)(e) of the Controlled Substances Act.[7]
[7] 32. (1) A person must not knowingly—
In Rowan[8] Doyle CJ discussed the proper interpretation of section 32(1)(e).
In Hoang … this Court held that s32(1)(e) creates only one offence, and that a charge of possession for sale or supply was not duplicitous by charging two different offences. Gray J, with whom the other members of the court agreed, said …;
S32(1)(e) seeks to penalise the act of possession with intent to distribute. The section penalises that act of possession if the possession is for one or more specified purposes. In this circumstance there is only one offence regardless of whether the act of possession is for any or more of the prohibited purposes. Those purposes are sale, or supply or administration. The amended information specified sale or supply. There can be, as s32(1)(e) recognises, more than one purpose for possession and more than one method of committing the same offence.
Accordingly, S32(1)(e) creates only one offence of knowingly being in possession of a drug of dependence or a prohibited substance for the purpose of sale, supply or administration to another. The use of the disjunctive “or” in the section merely specifies the different ways in which the single offence may be committed.
That being so, the Director may lay a charge alleging one only of the specified purposes or one only of the specified methods of committing the offence. Thus, the Director may charge possession for the purpose of sale, and in that event to obtain a conviction must prove that particular purpose existed. The Director might charge possession for the purpose of sale and supply. In that event the Director must prove that each of those intentions exists, presumably as to different parts of the total quantity of the substance in question. The Director might charge possession for the purpose of sale or supply, or indeed for the purpose of sale or supply or administration. In such a case what the Director must prove is that the possession in question is for one or other of those purposes, but certainly for one of them. Any potential unfairness that might arise in such a case, because of uncertainty as to the nature of the Director’s case, will be met by ordering particulars if appropriate, and by making clear to the jury the precise basis upon which the charge is brought. A case of the latter kind should be the exception. Usually the Director will be expected to select and to specify the purpose that is alleged. These matters were canvassed by Bray CJ in Romeyko v Samuels ….
[8] (2003) 85 SASR 364 at 368

Counsel for the Crown conceded that the drawing of the charge as ‘sale or supply’ was more than likely to have been an administrative oversight rather than an intentional decision. It was said to be the usual practice to plead either sale or supply depending upon the state of the evidence. This accords with the observations of Perry J in Huong:[9]
…. when the Crown case is the accused has possession of a prohibited substance for sale, the information is ordinarily cast in term alleging only that offence. This is as it should be. As Bray CJ observed in Lafitte v Samuels:… “Prosecutors should make up their minds what they want to charge and then boldly charge it.”
[9] (2002) 83 SASR 254 at 254-255
The validity of the procedure followed in the present case was questioned. There was a possible irregularity at the time the plea was entered. The court record indicates that when pleading to the charge, the appellant pleaded not guilty to sale of cannabis, but guilty to supply. The guilty plea entered to the charge of possession for supply was not accepted by counsel for the Crown in satisfaction of the charge. The Crown maintained its allegation that the purpose was for sale.
The Allocutus
After a defendant pleads guilty or is convicted, the court customarily asks whether a defendant has anything to say before sentence is passed. This is called the allocutus. The allocutus was not given. The matter proceeded to a disputed facts hearing.
It was submitted that the failure to deliver the allocutus did not render the plea and sentence nugatory. It was said that the allocutus was no more than a procedural process and a formality. It was not a necessary precursor to sentencing.
At common law the allocutus was given to enable a defendant the opportunity to move in arrest of judgment on a point of law. In Archbold Pleading, Evidence and Practice in Criminal Practice[10] it is observed:
A prisoner who has been found guilty of treason or felony is formally asked if he has anything to say why the court should not proceed to judgment against him…This formal demand is called the allocutus and it ought to appear on the record when made up. The only point of the allocutus is to allow the convicted person to raise any point of law in arrest of judgment. If he has no point to raise, the omission of the allocutus does not vitiate the trial or the sentence.
If the allocutus raises any ground at all of appeal, it could give rise only to one against sentence and against conviction.
[10] Stephen Mitchell, P J Richardson and John Huxley Buzzard (eds), Archbold Pleading, Evidence and Practice in Criminal Practice, (42^nd edn, 1985) at 185
It has been said that the allocutus no longer serves any real purpose. In R v Rear[11] Glyn-Jones observed:
As I have said, there was here an able and apt plea in mitigation by counsel. The conclusion seems to be that the practice of putting the allocutus, although it is still necessary on a trial on indictment for felony, does not seem to serve any useful purpose today…
Holding as we do that there is nothing in the point that the allocutus was not put, we can do none other in this case than to say that the application for leave to appeal against sentence must be dismissed.
[11] [1965] 2 QB 290 at 295
There was an effective plea to the charge. A solemn confession was made to each of the elements of the offence - possession of a prohibited substance for an improper purpose. The appellant acknowledged his guilt to the charge of possession for sale or supply, but expressed the qualification that his plea was on the basis that he was guilty of the offence for the purpose of supply not sale.
The Approach of the Sentencing Judge
As earlier observed, the appellant entered a guilty plea to the charge of possession of cannabis for supply. The Crown did not accept the plea, no allocutus was given and the matter proceeded to a disputed facts hearing.
The sentencing judge considered that the appellant carried the onus with respect to the issue of sale or supply. The appellant’s account that he was unaware of the commercial nature of the cannabis operation was rejected by the judge:
…it was clear on all the evidence that the cannabis taken from the house by you was intended for sale and known by you to be intended for sale, albeit that you were acting as a courier or intermediary.
The judge remarked when sentencing the appellant:
This is a serious offence. The penalty, given that the weight of cannabis which you were apprehended with was in excess of 10 kg, is a maximum of 25 years imprisonment or a $500,000 fine.
…
It is clear from the that [sic] penalty and from the penalties prescribed generally for this type of offending that Parliament intends that even those who play minor roles in the commercial production of cannabis must have visited on them deterrent penalties. A sentence of imprisonment is inevitable, particularly bearing in mind the weight of cannabis involved and the clear signs of a sophisticated, large-scale commercial production.
The issue for me on sentencing is rather whether a good reason exists to warrant the suspension of the sentence.
I consider there are good reasons in this case. You are a new immigrant to the country, you were a vulnerable target for a task such as you were told to carry out and I accept that you were used by the principals involved with the grow house at Woodville. To some extent, but only to some extent, you can be forgiven for failing to adequately appreciate what you are getting into.
The sentence of the Court is that you be imprisoned for 18 months. I fix a non-parole period of nine months. For reasons alluded to, I suspend the term of imprisonment on condition that you enter into a bond in your own recognisance in the sum of $500 for a period of two years. I require only one condition in the bond, and that is that you be of good behaviour for the period of the bond, namely two years. I will not impose any supervision.
I anticipate that you are unlikely to re-offend and from now on will build your life in Australia and stay out of harm’s way.
The Statutory Presumption
The disputed facts hearing was an inquiry as to whether it was proved that the appellant had been involved in the offence of possession for sale. This raised the issue of the commerciality of his conduct. This matter of aggravation is addressed by section 44 of the Controlled Substances Act:
In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
…
(d) in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted into consideration if an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain); and …
The appellant submitted that the statutory presumption provided by section 32(3) of the Controlled Substances Act had no part to play in the sentencing process. Section 32(3) provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
The statutory presumption is only relevant to raise a presumption of possession for ‘sale or supply’, not ‘sale’ and separately ‘supply’.
Counsel for the appellant submitted that the charge of possessing cannabis for sale or supply was one in which sale and supply were not discrete elements. Reference was made to Hoang and Rowan. Counsel submitted that if sale was to be advanced as a circumstance of aggravation, then the Crown had the onus of proving that circumstance.
The Crown accepted that it bore the onus of proving the aggravating feature of sale. It was acknowledged that it was for the prosecution to prove the element of commerciality and that the sentencing judge erred in reversing the onus.
Counsel for the Crown submitted, however, that there was sufficient evidence from both the declarations and the evidence of the appellant, upon which this court could be satisfied beyond reasonable doubt that the appellant was involved in possession for sale. Attention was drawn to the manner in which the appellant became involved, the sophisticated hydroponic set up and the potential value of the saleable material.
This submission should be rejected. The sentencing judge’s error as to the appellant carrying an onus permeated the factual hearing and the judge’s conclusions and findings. Before any finding could be made of possession for sale there would need to be a rehearing of the disputed fact issue.
Weight of the Prohibited Substance
Counsel for the appellant submitted that the sentencing judge erred in his consideration and assessment of the weight of the cannabis seized from the appellant. It was submitted that the relevant weight of the cannabis was its dry, saleable weight. It was said that in the present case at the time of seizure the cannabis was damp and much heavier than its dry saleable weight.
The weight of material was measured some days after the appellant’s arrest at 10.57 kilograms. It was agreed that 70 - 80% of that weight was likely to have been lost in the drying of the material prior to sale. The resultant dry weight was therefore accepted to have been between 2.114 and 3.171 kilograms. It is clear from his sentencing remarks that the judge used the minimum weight of 2.114 kilograms when assessing the amount of saleable material. He then reduced that weight by one third for unsaleable material finally arriving at a weight of 1.41 kilograms.
Counsel for the appellant pointed out that the sentencing judge proceeded on the basis that the maximum penalty for the offence was 25 years imprisonment and a $500,000 fine. This penalty range applies where the weight of cannabis is in excess of 10 kilograms. It was contended that this was in error as the relevant weight of the drug was the weight of the material when ready for sale. This weight was substantially less than 10 kilograms. Section 32 of the Controlled Substances Act relevantly provides:
(1) A person must not knowingly--
(a) manufacture or produce a drug of dependence or a prohibited substance; or
(b) take part in the manufacture or production of such a drug or substance; or
(c) sell, supply or administer such a drug or substance to another person; or
(d) take part in the sale, supply or administration of such a drug or substance to another person; or
(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
…
(5) A person who contravenes this section is guilty of an offence and is, subject to subsection (6), liable to a penalty as follows:
A. For the following offences in the following circumstances:
(1) the sale, supply or administration, or taking part in the sale, supply or administration of a drug of dependence or prohibited substance to a child;
(2) being in possession, within a school zone, of a drug of dependence or a prohibited substance for the purpose of the sale, supply or administration of the drug or substance to another person:
(a) where the substance the subject of the offence is cannabis or cannabis resin--
(i) if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection--a penalty of both a fine not exceeding $1 000 000 and imprisonment for a term not exceeding 30 years;
(ii) in any other case--a fine not exceeding $100 000 or imprisonment for a term not exceeding 15 years, or both;
(b) where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)--
(i) if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that substance for the purposes of this subsection--a penalty of both a fine not exceeding $1 000 000 and imprisonment for life or such lesser term as the court thinks fit;
(ii) in any other case--a penalty of a fine not exceeding $400 000 or imprisonment for a term not exceeding 30 years, or both;
B. For any other offence under this section:
(a) where the substance the subject of the offence is cannabis or cannabis resin--
(i) if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection--a penalty of both a fine not exceeding $500 000 and imprisonment for a term not exceeding 25 years; or
(ii) if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection but one-fifth or more of that amount--a penalty not exceeding $50 000 or imprisonment for 10 years, or both; or
(iii) if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than one-fifth of the amount prescribed for the purposes of this subsection--a penalty not exceeding $2 000 or imprisonment for 2 years, or both;
(b) where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)--
(i) if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that substance for the purposes of this subsection--a penalty of both a fine not exceeding $500 000 and imprisonment for life or such lesser term as the court thinks fit; or
(ii) if the quantity of the substance involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection--a penalty not exceeding $200 000 or imprisonment for 25 years, or both.
(5a) The amounts of cannabis or cannabis resin prescribed for the purposes of subsection (5) are--
(a) for cultivation of cannabis plants--100 plants or, if a lesser number is prescribed by regulation, that number;
(b) for any other offence involving cannabis--10 kilograms or, if a lesser amount is prescribed by regulation, that amount;
(c) for an offence involving cannabis resin--2.5 kilograms or, if a lesser amount is prescribed by regulation, that amount.
Section 4 defines cannabis to mean:
…a plant, or any part (including the seed) of a plant, of the genus cannabis, but does not include cannabis resin or cannabis oil…
Counsel for the appellant submitted that the weight of cannabis involved in the commission of the offence should be the weight of the cannabis when dried. As earlier observed, the cannabis would have weighed less when dry.
It was submitted that to ensure consistency in sentencing between like offenders who may be apprehended with cannabis at different stages of the production process, the determinative weight should its dry, saleable weight. It was said that the penalty regime employed by the sentencing judge was not appropriate.
Counsel for the Crown submitted that the appellant’s contention was not supported by the language of the Controlled Substances Act. It was argued that the weight involved ‘in the commission of the offence’ is the weight of material when seized, whether for supply or sale. The defendant’s intent is to be determined at the time of possession.
Counsel for the prosecution accepted that the time of weighing can lead to differing results. However, it was said that this effects the prosecution as much as the accused. It was the Crown’s position that the weight of material should be the weight recorded at the time of seizure.
In Leung[12] Doyle CJ commented on anomalies that may arise in offences against section 32 of the Controlled Substances Act. It was pointed out that the wording of the section necessarily led to this result.
…as an example, the instance of two persons jointly charged with production of cannabis, one of them having watered the plants while they were growing and the other having handled the leaves after they had been cut. He made the point that the sentence for the former would be determined by reference to the number of plants, because the former took part in cultivation, and that the sentence for the latter would be determined by reference to the amount of cannabis, because the latter took part in production that is not cultivation. Applied to the facts of the present case involving 14 plants, the cultivator would face a penalty in the lowest range and the producer a penalty in the highest range.
I agree that such anomalies can occur, but that is an inevitable result of the terms in which s32 is expressed. To illustrate this point, I suggest the following example which may be slightly unrealistic, but is not completely unrealistic. A person might grow 105 cannabis seedlings in pots. At that stage the person faces a penalty for cultivation in the maximum range. Two weeks later, due to poor management, 40 plants might have died. If detected at this stage the person faces a penalty for cultivation in the middle range. A few weeks later the person might have culled the male plants and might have suffered some further losses, the number of plants now falling below 20. The person now faces a penalty in the lowest range. At the second and third stages of this example the plants might be carrying a quantity of leaf which is such that, if the plants were then harvested, a person handling the harvested leaves would attract a penalty in a higher range than that attracted by the number of plants. The weight of the leaves, when relevant in fixing penalty, will depend upon the stage that drying has reached. As in this case, the leaves when weighed might attract a penalty in the highest range although when completely dried they might attract a penalty in the middle range. In cases that have come before this Court where the charge is cultivation, the Court has been pressed with the argument that the plants were not thriving and that had the person been charged after the plants were harvested, the quantity of the crop would have put the person into a lower penalty range than does the number of plants.
I give these examples merely to make the point that s32 is structured in a manner that will produce anomalies like this, and that the existence of such anomalies cannot be attributed solely to the giving of a narrow meaning to “cultivation”. Nor are they eliminated by giving it a wide meaning.
[12] (1999) 105 A Crim R 398 at 403
There are anomalies inherent in the taking of weight measurements. There is obvious scope for inconsistencies. A person apprehended with cannabis on the day of the stripping of a plant will have, by weight, a considerable amount more than if apprehended some weeks later, with the same material in a dried form. However, the legislature did not indicate that the dried weight is relevant for the purposes of the Act. It is the weight of cannabis involved in the commission of the offence that is relevant. This is at the time of seizure. The sentencing judge had regard to the legally applicable range of penalties.

A relevant matter in the exercise of the sentencing discretion is the weight of the cannabis to be sold. An analysis of the probable weight after drying may be made and a maximum and minimum estimate made. It is open to a judge to undertake this process and proceed to sentence having regard to the minimum calculated weight of saleable material as a relevant consideration. This was the approach followed in the present case.
Conclusion
As has been earlier observed, error on the part of the sentencing judge has been established. The error was one of principle. He treated the appellant as carrying an onus on the issue of whether the appellant’s possession was for sale or supply. As a result his findings must be set aside. However it does not follow that the sentence should be set aside.
The Crown submitted that even if the court accepted the appellant’s version of the facts, a suspended sentence of imprisonment of eighteen months with a non-parole period of nine months was an entirely appropriate penalty.
As earlier observed, the circumstances of the offending involved the appellant proceeding to a property where there was an extensive hydroponic cultivation of cannabis, following a telephone request. The appellant’s role was to remove the flowers from plants. He did so and filled five bags to a weight of more than ten kilograms. His task was then to make delivery. At that time he would be rewarded for his efforts with a small parcel of cannabis. This was serious offending and in the ordinary course called for a significant term of imprisonment. He was exposed on this admitted version to a term of imprisonment of up to 25 years. The head sentence and the non-parole periods fixed by the sentencing judge were well within the sentencing discretion for this offending. The decision to suspend the sentence was merciful but appropriate given the appellant’s personal antecedents.
Section 353 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
(4) Subject to subsection (5), on an appeal against sentence, the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.
(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
The sentence imposed was an appropriate sentence for the admitted conduct. This appeal should be dismissed.

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(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.