R v Stanischewski No. DCCRM-02-1134

R V STANISCHEWSKI
[2003] SADC 16
Judge Burley
Criminal

The defendant has pleaded guilty to one charge of producing cannabis contrary to Section 32(1)(a) of the Controlled Substances Act 1984 (the Act). It is common ground that 280 young female cannabis plants found at the relevant premises are the subject matter of the charge to which the defendant has pleaded guilty. The number of plants is therefore in excess of the prescribed number of plants referred to in Section 32(5a)(a) of the Act, namely 100 plants. Consequently, the maximum penalty for the offence provided by Section 32(5)B(i) of the Act is a fine not exceeding $500,000.00 and imprisonment for a term not exceeding 25 years. It also follows that the defendant is unable to rely upon the provisions of Section 32(6) of the Act. That section relates to the question of cultivation for personal use but only applies where the number of plants involved does not exceed the prescribed number, namely 10 plants.
There are three matters in dispute which must be resolved before sentencing. First, the defendant contended that most of the cannabis was produced for his personal use whereas the Crown contended that the primary purpose of the production of the cannabis was commercial.
Second, a dispute exists as to the amount of cannabis to be harvested from the crop. This aspect of the dispute centred around the question of the extent to which the young plants the subject of the charge would not reach maturity.
Third, a dispute exists as to the extent of the defendant’s participation in the commission of the offence. Up to 3 February 2003, the defendant did not dispute that he was the sole participant in the commission of the offence. However, on 3 February 2003 when the disputed facts hearing was called on, his counsel, Mr Vadasz, announced that his client’s instructions were now that another person was involved in the offence. In summary it was alleged, and it was the subject of evidence given by the defendant during the course of the hearing, that he and another person agreed that the defendant would rent the premises at which the cultivation took place, that the defendant would tend to the plants and that, upon reaching maturity, the cannabis derived from their cultivation would be divided equally between them. The other person was to pay for or supply the necessary equipment and pay the rental of the premises at which the plants were to be cultivated. The lease was to be in the name of the defendant and if their activities were detected by police, the defendant was to claim that he was the sole perpetrator. This evidence flatly contradicts what the defendant told police officers when interviewed about the offence.
In summary, the circumstances of the offence are as follows. On 1 June 1998 police officers attended the premises at 124 North East Road, Walkerville. They there found that one of the bedrooms of the premises contained an elaborate hydroponics system. They found two large drainage tables mounted on aluminium frames that contained a total of 280 young cannabis plants. The police officers also located receipts and quotations for hydroponic equipment, along with various hydroponic chemicals. They found an ozone deodoriser in the roof cavity of the house. In the kitchen of the house they found paperwork in the name of the defendant, including a copy of the lease agreement for the premises. The defendant’s fingerprints were found on a potassium nitrate container and a festoon globe located in the house. The defendant was arrested and participated in a video record of interview. During the course of that interview he admitted that he had rented the premises to grow cannabis. He stated that he had acted alone and had only intended to grow one crop.
It is apparent from the statement of Mr D Verrilli, the owner of the premises, that he had arranged with the defendant for the defendant to rent the premises at Walkerville. On 12 May 1998 the defendant signed what Mr Verrilli described as a “periodic” lease and paid rent in advance until 25 June 1998. He also paid the tenancy bond in the sum of $680.00.
The Crown has alleged that the offending has been aggravated because, in the Crown’s submission, the production of the cannabis was primarily for a commercial purpose. This contention is contested by the defendant.
The approach to be taken to this aspect of the dispute is that referred to in Anderson v The Queen (1993) 177 CLR 520 at 536 where the majority (Deane, Toohey and Gaudron JJ) said (at 536):
“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. Thus, in the present case where the Crown relied on commercial purpose as a circumstance of aggravation, it was for the Crown to satisfy the sentencing judge beyond reasonable doubt that the appellant had had such a purpose. If the Crown failed to discharge that onus, the appellant was entitled to be sentenced on the basis that his cultivation of cannabis had not been shown to have been for such a purpose.” (Citations omitted).
Although that decision dealt with provisions under the Controlled Substances Act which have subsequently been amended, I consider that the statement of principle set out above remains unaffected by subsequent amendments to the Controlled Substances Act.
I also take into account what was said by the High Court in R v Olbrich (1999) 199 CLR 270 at 281 where the majority said that if the prosecution wishes to rely on additional facts, the prosecution must establish those facts beyond reasonable doubt. An assertion as to commerciality comes within this requirement. Olbrich was applied in R v Lobban (2001) 80 SASR 550.
In applying the standard of proof beyond reasonable doubt I must take into account a number of things. Reasonable doubt is not created by having recourse to fanciful or unreal possibilities. In this case, the Crown relies upon circumstantial evidence to establish beyond reasonable doubt that the production of the cannabis was primarily for a commercial purpose. I must consider any reasonable explanation which exists on the evidence produced either by the Crown or by the defendant which exonerates the defendant in respect of this particular assertion by the Crown. In order to find the Crown case proved beyond reasonable doubt as to this matter, all reasonable possibilities consistent with the defendant’s contention that the primary purpose of production was not commercial must be excluded.
I remind myself also that it is not merely a matter of whether or not I accept the evidence adduced by the Crown on the one hand or the evidence given by the defendant on the other hand. If I remain uncertain as to where the truth lies, reasonable doubt necessarily arises: R v Calides (1983) 34 SASR 355.
I shall return to the subject of commerciality later in these reasons after I have dealt with the second and third matters in dispute.
I turn to the dispute relating to yield. The defendant told the police when he was interviewed that he expected that half of the 280 plants would reach maturity. He estimated the yield from each plant to be about half an ounce. He said the same thing when he gave evidence. The Crown case is that most of the plants would have survived. This, like the question of commerciality, is a matter where the prosecution bears the onus of proof. The Crown does not dispute the estimate of about half an ounce per plant.
Reliance was placed by the Crown on the evidence of Mr D J Carroll. Mr Carroll is a forensic scientist and is an expert in relation to the botanical aspects of the cultivation of cannabis. He viewed a series of 20 photographs which have been admitted as Exhibit P1. Photographs 2 to 6 show the plants seized by police which are the subject of the charge. It was Mr Carroll’s opinion that although several of the plants appeared to be struggling, the vast majority were healthy and showed new growth. He was of the view that the plants would have an extremely high chance of surviving to maturity. In evidence he said that he thought that less than 10 of the plants may not have survived, but the remainder would have grown to maturity.
Mr Carroll identified the growing method as “Dutch Sea of Green”. This involves crowding of plants. He noted that the average number of plants per square foot was 4.4. There was a distance of approximately 10 centimetres between plants. The normal space between plants, if they were to grow to full size, would be about 30 centimetres. The growth of the plants was forced by switching the lights on for 18 or 24 hours a day. This would lead to early triggering of flowering and maturity. The plants would reach about 45 centimetres in height.
Mr Carroll said that the yield from each plant grown in that manner would be approximately half an ounce. For 280 plants this would yield about 8.5 pounds of cannabis. Taking into account that a small number of the plants may not have reached maturity, the yield would therefore be about 8 pounds.
Mr Carroll was of the view that if the plants were culled by half, the yield was likely to be greater because the plants would have had room to expand. However, it has not been suggested that the defendant intended to cull the plants. If half of the plants had died before reaching maturity, there is a possibility that some of the plants at least would have greater room to grow and would thereby be larger plants than those which grew in the crowded fashion described above. I have no means of knowing what the yield would then have been.
I accept the evidence of Mr Carroll that the likelihood is that most of the plants would have survived to maturity, in which event the yield to be expected would have been in the vicinity of 8 pounds.
I have considered the defendant’s estimate that half of the plants may not have survived to maturity. It was clear from the evidence of Mr Carroll that at the time these plants were discovered by police, the Sea of Green method was in its infancy, at least in Australia. The defendant did not profess to have knowledge of previous crops grown in this manner and so it is difficult to see how he could, on a reasonable basis, form the view that only half of the plants would survive to maturity. At best, it was more pessimistic speculation on his part. The fact is that it was his intention to grow 280 plants and take the crop from those that survived. In my view, Mr Vadasz’s submission, based on the defendant’s estimate, that only half of the crop would have survived to maturity, cannot be sustained. In my view, based on Mr Carroll’s evidence, the proper finding is that the likely yield from the crop was approximately 8 pounds.
The question of the defendant’s expectations as to yield may have an indirect bearing upon the question of the extent of the commerciality of the production of the crop. If I accept that the defendant’s estimate was that there may have been a yield of a total of about 3 pounds of cannabis, his intention may have been that most of that quantity would go to personal use and only a small amount would be used for commercial purposes. However, I do not believe the defendant’s evidence that he thought half of the plants would not survive to maturity. I consider that this evidence, like other evidence given by the defendant to which I will refer later in these reasons, constituted an attempt to mitigate the seriousness of the offending by resorting to lies. In my view, this means that where the likely yield was something in the vicinity of 8 pounds, there would have been at least 5 pounds of the substance used for commercial purposes because it would exceed by that amount the defendant’s expected consumption.
In making these observations, I have not dealt with the disputed facts relating to the defendant’s present assertion that he participated in a joint venture with another person for the production of the cannabis. In light of the conclusions to which I have come about the veracity of that evidence, it is not necessary to do so.
I turn now to the question of whether or not I accept the defendant’s evidence that he was involved in a joint venture. This is a matter where the defendant is required to establish, on the balance of probabilities, that there was a joint venture with another person: cf Olbrich (supra) at 281, para 25; Lobban (supra) at 555, para 20.
I have to decide whether I will accept the evidence of the defendant in this regard. There are a number of factors which have to be taken into consideration: first, the fact that the assertion of joint venture was made late and that it contradicts what the defendant had previously told the police; second, the cogency of the evidence given by the defendant in support of his contention that he was involved in a joint venture; and, third, the cogency of other evidence given by the defendant which goes to his credibility.
Up to the date of the hearing, there had been no suggestion by the defendant that he had been involved in a joint venture. On the contrary, his clear statement to police officers when interviewed was that he was solely involved. This suggests that his present contention that he was involved in a joint venture was a recent invention on his part with a view to minimizing the sentencing consequences of the offence to which he has pleaded guilty.
As to the second point, the nature of the evidence given by him at the hearing was unconvincing. He described the other person as a close friend. They had known each other from school days and were more like brothers than close friends. He was, however, unable to state the whereabouts of this other person other than to say that he thought that he lived in the suburbs to the north of Adelaide. He explained his inability to provide a specific address for the other person by saying that he had not seen him for in excess of two years. When referring to the existence of the other person, his demeanour in the witness box was unconvincing. These two matters have created in my mind a doubt as to whether or not I should accept that he has been telling the truth.
The third factor relates to other evidence given by the defendant which goes to his credibility. In particular, I refer to the evidence given by him that he was a heavy cannabis user. He told police when interviewed and he said during evidence that he consumed a half to one ounce of cannabis per week. He said that he used a bong to consume the cannabis. He said that he would consume a portion of cannabis about once every 20 minutes during the day.
During the course of her cross-examination of the defendant, Ms Willows, counsel for the DPP, directed his attention to the fact that the police, when they searched the premises at which the cannabis was growing and the premises at Deepdene Avenue, Klemzig where the defendant said he was residing (for the most part) with his girlfriend and daughter, no equipment for the consumption of cannabis was found. It was put to the defendant (T48/25) that the police did not find any dried cannabis at either the Walkerville house or the house at Klemzig. The defendant agreed that this was so. It was then put to him that they did not find any pipes at either address. The defendant responded that they found some at Klemzig. He said (T48/32):
“AYes, they found some at Klemzig, but they didn’t want anything to do with them, like ‘That’s not what we’re here for’, and they left them alone, didn’t even give me a fine for them.
QWhere do you say that they found the pipes.
AMy bong used to be on top of the fridge always.
QThat’s not noted by the investigating officer.
AI mean, they didn’t want to have anything to do with it.”
I find this aspect of the defendant’s evidence quite unconvincing. If he was a heavy consumer of cannabis, it is likely that he would have had either at the Walkerville address or the Klemzig address (or both) dried cannabis and equipment to consume it. In particular, it is likely that he would have had it at the Klemzig premises because that is where he was living for the most part with his girlfriend and their daughter.
I do not accept the defendant’s statement that the police found such equipment but decided not to seize that equipment nor to include it within the list of items seized by them. In my view, this evidence is an example of the willingness of the defendant to resort to lies in order to attempt, in his mind, to shore up a shaky evidential foundation.
Another example of that type of evidence occurred when it was put to him that if his present evidence that he was involved in a joint venture was true, he had previously lied to the police. I quote from the transcript (T51/34):
“QSo, again, you lied at the time.
AWell, what happened was when the police came in the door, they grabbed my missus and kid and said ‘We’re going to take your missus to gaol and your kid to welfare unless you admit to it right now’, and they turned on the tape-recorder and that’s when I admitted to it.
QAre you alleging that the police threatened you.
ANo, they just said ‘We’re going to arrest your girlfriend unless you tell us, you admit that it was all you, otherwise we’re taking you all to gaol’, that’s what they said.”
The three factors discussed above have led me to conclude that no reliance can be placed upon the evidence of the defendant in relation to two vital aspects of the charge: first, I do not accept that he was involved in a joint venture as alleged by him or at all; and, second, I do not accept that he was a heavy user of cannabis to the extent that he would have used approximately 3 pounds of the substance harvested from the crop for his own use. I accept that he may well have consumed the substance but not to the degree of heavy usage.
The Crown also relied upon the relatively sophisticated hydroponic system to support the inference that the purpose of production was predominantly commercial. I agree that this aspect lends support to the Crown’s submission. Several thousand dollars were spent on equipment, power and rental. The set-up suggests a degree of sophistication beyond cultivation for personal use.
In my view, the following inferences are the only inferences which may reasonably be drawn from the evidence adduced by the Crown:
(a)That the defendant was not a heavy user of cannabis.
(b)That, at the time of the commission of the offence, it was the intention of the defendant to apply some of the crop to his own use and the remainder was to be disposed of commercially.
(c)That the defendant was aware that only a small portion of the crop would be needed for personal use and that then, most of the crop would be disposed of commercially.
Consequently, I find that the primary purpose of the production of the cannabis was commercial.

[2003] SADC 16

20 February 2003