R v Smith - [2006] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2006] SASC 156
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
2 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Offence of taking part in the production of cannabis - s 32(1)(a) Controlled Substances Act 1984 - Production of cannabis not for commercial purposes - Appellant convicted of multiple cannabis related offences on four prior occasions - Ongoing cannabis use - Highest previous penalty $300 fine - Acknowledgement by appellant of appropriateness of suspended sentence - Whether $2000 fine in addition to suspended six month gaol sentence manifestly excessive in the circumstances - Deterrent effect of suspended sentence considered - Amount of fine excessive - Appeal allowed (majority) - Fine reduced to $1000.
Controlled Substances Act 1984 s 32, s 44, referred to.
Elliott v Harris (No 2) (1976) 13 SASR 516; R v Faniglietti [2005] SASC 489; R v Leung and Monaghan (1999) 202 LSJS 243; R v Caliendo (1997) 190 LSJS 24; R v Hunter (1995) 80 A Crim R 46; Markarian v The Queen (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v SMITH
[2006] SASC 156
Court of Criminal Appeal: Bleby, Gray and Anderson JJ

BLEBY J: This is an appeal against sentence. The appellant pleaded guilty to one count of taking part in the production of cannabis contrary to s 32(1)(a) of the Controlled Substances Act 1984.
The appellant was charged with this offence following the execution of a search warrant by police on premises at Prospect occupied by the appellant and his partner. Police located at the premises 27 small cannabis plants being grown hydroponically in a small shed, and 4 more plants being grown in pots in the rear garden of the property. The hydroponic set-up was described by the learned sentencing Judge as “relatively unsophisticated”. Police located a ballast box and a 400 watt light. Police also located 19 clones in the shed.
A disputed facts hearing was conducted in order to determine the basis upon which the appellant was to be sentenced for the offence. The dispute was whether he should be sentenced on the basis that the crop was grown for commercial purposes.
The appellant gave evidence at the hearing. His evidence was that he had been a user of cannabis for many years and was still a user, even after the present charges were laid, and that he shared the cannabis he grew with his partner, a neighbour and friends.
The appellant also gave evidence that the relatively unsophisticated set‑up, which he described as a “sea of green” process, was one that ensured that the plants would not grow large – only one stalk and one bud – and that the yield from each plant would only be in the range of 10-15g. That accounted for the relatively large numbers of plants. While the evidence of the accused in respect of the yield expected from each plant was in contrast to that of Mr Webber, a witness for the prosecution, whose evidence it was that each plant would yield 150g, the sentencing Judge concluded that Mr Webber’s estimate “[could] not prevail”.
Aside from the overall yield, the sentencing Judge considered there to be other factors which rebutted the assertion that the cannabis was grown for commercial purposes. First, there was no evidence in the appellant’s house of the “trappings” of wealth that might be expected if a commercial operation was being carried on. Secondly, there was no evidence of the “indicia of a commercial operation”. Thirdly, there was no evidence that the appellant had been seen to be engaging in a commercial operation.
Having regard to this evidence, the sentencing Judge was not satisfied beyond reasonable doubt that the prosecution had established that the appellant was involved in a commercial enterprise. Accordingly, his Honour sentenced the appellant on the basis that the cannabis was grown for personal use, and that the appellant also shared some of it with his partner, neighbour and friends.
The sentencing Judge heard submissions in mitigation. In sentencing the appellant, his Honour took into account the personal circumstances of the appellant, including his medical history, particularly the period between 2002 and 2004 during which time the appellant suffered from repeated dislocations of his shoulder. This caused not only pain, but anxiety and frustration due to the delays he experienced in being able to avail himself of treatment and a period of unemployment. The sentencing Judge accepted that, to at least some extent, during this period the appellant’s cannabis consumption was a form of self‑medication to alleviate the pain associated with his shoulder. The appellant was aged 35, since rectification of his shoulder had recently become employed and claimed to have reduced his consumption of cannabis since the commission of the offences.
The sentencing Judge also had regard to the appellant’s antecedents. The appellant had a criminal record dating back to 1988. The majority of the offences were driving offences, but the record included four occasions on which the appellant was found guilty or convicted of possessing or producing cannabis or possessing equipment to administer cannabis. In each case a fine was imposed, the maximum fine being $300. The Judge observed that, given the appellant’s apparent attitude to the drug and its effects over a long period of time, a deterrent penalty was required.
Having regard to all these factors, the sentencing Judge ordered that the appellant be sentenced to a term of imprisonment for six months which was suspended upon the appellant entering into a bond in the sum of $750 to be of good behaviour for a period of two years. His Honour also imposed a fine in the sum of $2,000.
The appellant appeals against the sentence on the grounds that the cumulative penalty of a fine and a suspended term of imprisonment is manifestly excessive in all the circumstances and that the fine imposed is manifestly excessive in the circumstances.
Essentially, the appellant argues that, although the sentencing Judge certainly had the power to impose both a suspended term of imprisonment and a fine, in the circumstances of this case it was manifestly excessive to do both. In the alternative, even if it was appropriate to impose both a suspended sentence and a fine, the fine that was imposed in this case was manifestly excessive having regard to the appellant’s personal circumstances.
The maximum penalty for this offence is a fine of $50,000 or 10 years imprisonment or both. That maximum allows for a range of offending from producing very few plants for personal use to a substantial commercial operation.
I agree with the sentencing Judge that, given the appellant’s antecedent offences, personal deterrence played a significant part in the determination of this penalty. A sentence of imprisonment of the order imposed, albeit suspended upon entering into a good behaviour bond, was entirely appropriate. Fines alone on previous occasions have failed to have any apparent deterrent effect on the appellant. The appellant on this occasion required the incentive of a suspended sentence to ensure, so far as possible, future good behaviour. Mr Stokes, counsel for the appellant, conceded that such a sentence by itself, was not inappropriate in the circumstances. However, he argued that the fine of $2000 in addition to the suspended prison sentence rendered the penalty excessive.
I also consider that a form of more immediate punishment, in addition to the deterrent effect of the suspended sentence, was called for. A fine, in addition to the sentence of imprisonment, was therefore appropriate.
The highest fine previously imposed on the appellant for cannabis offences which included producing cannabis was $300 in 2001, on the occasion of the most recent conviction for a cannabis offence. That fine was a single penalty for three offences. What was required on this occasion was a fine greater than had been imposed in the past, having regard also to the matters specified in s 44 of the Controlled Substances Act. The number of plants was high, but by virtue of the method of cultivation adopted, the intended yield, as accepted by the sentencing Judge, was relatively low.
The suspended sentence was in itself a significant deterrent sentence[1] and was the appellant’s first sentence of imprisonment. The nature of the appellant’s offending over the years, given the findings of the sentencing Judge on the disputed facts hearing, had been reasonably consistent. His production and consumption of cannabis appears to have remained on about the same scale throughout, with some increase during the period of disability related to his shoulder. However, he candidly acknowledged that his reduced consumption of cannabis as a casual smoker has continued, even though his production of cannabis may have ceased.
[1] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 and cases cited by Gray J in R v Faniglietti [2005] SASC 489 at [30].
That may indicate a somewhat cavalier attitude to cannabis offending. On the other hand, he was not sentenced, on this occasion, for possession of cannabis. There is no suggestion that he is continuing to produce cannabis.
As I said, I consider that a fine was necessary in addition to the suspended sentence of imprisonment. It was required to be significantly greater than fines imposed on the appellant in the past for similar offending. However, in all the circumstances I consider that the fine of $2000 in addition to the suspended sentence was excessive. In my view a fine no more than $1000 was appropriate.
I would allow the appeal and set aside the order for payment of the fine. In lieu thereof I would substitute a fine of $1,000. In all other respects I would confirm the sentence of the sentencing Judge.
GRAY J:
Introduction
This is an appeal against sentence.
The appellant, Desmond Roger Smith, pleaded guilty to one count of taking part in the production of cannabis contrary to section 32(1)(a) of the Controlled Substances Act 1984 (SA). The appellant was sentenced to six months imprisonment, suspended upon his entry into a good behaviour bond. He was fined $2,000.
The Crown alleged that the production was for commercial purposes. A disputed facts hearing was held. When resolving the dispute in favour of the appellant, the learned Judge summarised the relevant facts in the following terms:
When the police raided the premises occupied by the defendant at Prospect on 23 October 2004, they located 27 small plants growing in a small shed at the rear of the property and four plants growing in pots in the rear of the property. The plants in the shed were under a hydroponic method of cultivation, although a relatively unsophisticated one. Police located a ballast box and a 400 watt light. Presumably nutrients were located as well. Police also discovered 19 clones in the shed, and I conclude that the defendant was attempting to grow those clones to add to his production.
The Judge summarised the appellant’s evidence as follows:
The [appellant] told me that he had been a user for many years and that he shares with his partner and his neighbour and with friends. He told me that he expected that the 27 plants in the shed would yield no more than 10 to 15g per plant. … the [appellant] told me that [he] was employing for the first time a method of production known as “sea of green” whereby the light to which each plant is exposed is turned back from 18 hours to 12 hours after about six weeks for the purpose of confining the plant to one stalk and one bud. That is what the [appellant] asserts and I have no information before me to cause me to disbelieve him.
The Judge then concluded:
Putting aside the question of yield, there are other factors which combine to add doubt to the prosecution case. There was, as [defence counsel] submits, no evidence in the household of the trappings of wealth. There was no evidence of the indicia of a commercial operation. There was no evidence that the defendant was observed engaging in a commercial enterprise.
…
I formally rule that the prosecution has not established beyond reasonable doubt that the [appellant’s] production of cannabis was for a commercial purpose, and I will sentence him on that basis.
Given these findings, the appellant was exposed to a maximum penalty of a fine of $50,000 or imprisonment for 10 years or both.
The Sentencing Process
The appellant’s criminal antecedents included the offence of possessing cannabis for sale in 1988, the offences of producing and possessing cannabis in 1995, and the offences of producing and possessing cannabis and possessing equipment to administer cannabis in 2001.
The appellant gave evidence at the disputed facts hearing that he had been a user of cannabis for many years and that he remained a user. He said that he supplied cannabis to his partner, to a neighbour and to friends.
During the course of his sentencing remarks, the Judge summarised the personal antecedents of the appellant:
As for your personal circumstances, you are 35 years of age. You have been in a relationship with the other occupier of the premises for some 15 years. You have a two and a half-year-old daughter by that relationship. Your partner has a 19-year-old son from an earlier relationship. The son resides with you and your partner.
You have told me about your medical history, and about the anxiety and frustration which you experienced between 2002 and 2004 over the repeated dislocations of your shoulder, and about the delays you experienced in receiving appropriate treatment.
I can understand that your consumption of cannabis over that period was, to some extent at least, for the purpose of self-medication to alleviate your pain. It is disturbing to hear, however, that thereafter you maintained your consumption, and that, notwithstanding the current charge, you have continued to do so.
It was relevant that the appellant had criminal antecedents for like offending over the previous 15 years. That history was relevant, as in the ordinary course, it would justify a sentencing court not to extend leniency that might otherwise be available. The fact that the appellant was growing 27 plants hydroponically, had four other plants growing in pots in the rear garden of the property, and was supplying his partner, neighbour and friends with cannabis, adds to the seriousness of his conduct. As earlier observed, the appellant’s evidence disclosed that he was a committed user of marijuana. He continued to use marijuana notwithstanding the present charges. It was against this general background that the court came to sentence the appellant.
The Judge concluded his sentencing remarks as follows:
You have a criminal record which dates back to 1988. That record comprises, in the main, traffic and driving offences, but it does contain three drug offences as well. I agree with the prosecution that, in those circumstances, and given your apparent attitude to the drug and its effects, a deterrent penalty is required.
In all the circumstances, I have decided to impose both a suspended term of imprisonment and a fine. The order of the court is that you be sentenced to a term of imprisonment of six months, but that the sentence be suspended upon your entering into a bond in the sum of $750 to be of good behaviour for two years. There will be a fine in the sum of $2,000.
The Appeal
At the hearing of the appeal, counsel for the appellant abandoned the complaint that the suspended term of imprisonment imposed by the Judge was manifestly excessive. Counsel for the appellant accepted that the imposition of that sentence was within the sentencing discretion of the Judge. However, counsel submitted that, in the circumstances, the suspended sentence was a sufficient penalty, and that the $2,000 fine led to an overall sentence that was manifestly excessive.
Counsel did not suggest that the sentencing Judge had made any error of sentencing principle. Nor did counsel suggest that the Judge had taken into consideration any irrelevant factor or failed to have regard to any relevant material. Counsel simply submitted that the penalty was so severe as to allow the conclusion that it was manifestly excessive.
The production of cannabis is a serious offence. In Leung and Monaghan[2], Doyle CJ observed:[3]
It has to be emphasised that Parliament has made it clear that, whatever some people in the community may think, the production of cannabis is a serious offence. The penalties specified make that clear. Cases coming before the courts of this State demonstrate that the offence is prevalent. In my opinion the courts are bound, in the circumstances, to impose sentences in which deterrence plays a significant part. The courts, if necessary, will have to increase the level of sentence being imposed should that appear necessary to deter offenders.
[2] R v Leung and Monaghan (1999) 202 LSJS 243.
[3] R v Leung and Monaghan (1999) 202 LSJS 243 at 251.
The number of plants under cultivation has been treated in the authorities as a factor to which regard should be had in determining the penalty for an offence such as the production of cannabis.[4]
[4] R v Caliendo (1997) 190 LSJS 24 at 27; R v Hunter (1995) 80 A Crim R 46 at 47.
In the recent decision of Markarian,[5] Gleeson CJ, Gummow, Hayne and Callinan JJ, discuss the approach that an appeal court should adopt in considering an appeal against sentence. Their Honours said:[6]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v R, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy". [footnote omitted]
[5] Markarian v R (2005) 215 ALR 213. See also Dinsdale v The Queen (2000) 202 CLR 321.
[6] Markarian v R (2005) 215 ALR 213 at [25].
It is not the role of an appellate court to interfere with the imposition of a sentence in circumstances where the only reason for doing so is that the sentence differs from that which members of the appellate court may themselves have imposed. In accordance with the observations of the High Court, the role of the appellate court in these circumstances is to intervene only to correct errors made in the court below that lead to unreasonable or plainly unjust results.
This is a case where the sentencing Judge carefully assessed all relevant factors and has paid regard to those factors in an appropriate manner. Given the appellant’s criminal antecedents, a strong deterrent penalty was called for. The penalty was well within the sentencing discretion of the Judge.
A fine of $2,000, as against a maximum possible fine of $50,000, can only be described as modest. It is not a result that could, in the High Court’s words, be described as “unreasonable or plainly unjust”. If the appellant had difficulty making immediate payment, a process is available whereby he could apply to the court for manageable terms of payment to be fixed.
Conclusion

I would dismiss the appeal.
ANDERSON J: I agree with the reasons of Bleby J. I would allow the appeal and substitute a fine of $1,000. In all other respects, I agree that the sentence of the sentencing Judge should be confirmed.