R v Stefanidis No. DCCRM-02-690

[2003] SADC 33

R V STEFANIDIS
[2003] SADC Enter judgment number

Judge Robertson
Criminal

1. The Defendant has pleaded guilty to Producing Cannabis contrary to Section 32(1)(a) of the Controlled Substances Act 1984 (“the Act”). He has also pleaded guilty to the charge of Taking Part in the Production of Cannabis contrary to Section 32(1)(b) of the Act. With respect to the latter charge, it is alleged that the amount of cannabis produced was in excess of two kilograms.

2. The Crown alleges an aggravating feature of each charge.  The Crown says that there was a commercial element to each of the offences, in that it was the intention of the defendant to sell part of the cannabis, the subject of each of the respective charges.  It is not disputed, that the onus is upon the Crown to prove an aggravating feature of an offence beyond reasonable doubt.  (R v Olbrich(1999) 199 CLR 270).

3. The Defendant’s offending came to the notice of the police, when they attended at his premises on 27 March 2002 and located eight growing cannabis plants, situated in a number of glasshouses.  These plants are the subject of the charge of Producing Cannabis.  The police also located in a glasshouse, some cardboard cartons containing drying female cannabis tops and some cannabis leaf.  It is the drying cannabis tops and leaf, which are the subject of the charge of Taking Part in the Production of Cannabis.

4. The Defendant, who is forty three years of age, operates a market garden on the ten acres of land situated at Virginia.  He lives on the market garden with his wife and children.  His parents also live on the property.  The market garden has thirty shade houses and thirty three or thirty four glasshouses erected upon it.  Each of the shade houses and glasshouses are used for growing vegetables and tomatoes.  About a hundred olive trees and three thousand grape vines are also cultivated in the market garden.  Most of the work is performed by the Defendant, with the assistance of some employed labour.  Occasionally he has the assistance of one or other of his parents.  The market garden is ten acres in area.

5. When the Police were at the market garden on 27 March 2002, the Defendant was interviewed by a police officer.  He initially denied that he knew anything about the cannabis plants located in the glasshouses.  Shortly after that, he indicated that the plants were part of a joint enterprise with his parents.  Later, in his Record of Interview, at the Elizabeth Police Station, he indicated that only the largest two cannabis plants belonged to him.  In that Interview, he said that he did not know who owned the other plants.  Later on, in the Interview, he indicated that the Police should speak to his parents about the remaining cannabis plants.  He also said during the Record of Interview that the drying flowering tops of the cannabis, located in cardboard boxes in one of the glasshouses, did not belong to him.

6. On 13 January 2003 the defendant was re-arraigned in relation to the charges.  He had initially pleaded not guilty to both charges.  On his re-arraignment, the defendant pleaded guilty to both charges, and in so doing accepted that the eight growing cannabis plants and the drying cannabis flowering tops, which were mainly the product of a ninth cannabis plant grown on the premises, also belonged to him.

7. On 28 March 2002 the day after the cannabis flowering tops and leaf were seized by the Police, they were analysed and weighed.  Mr Webber, from the Forensic Science Centre certified that the total weight of the cannabis material was 6.031 kilograms. The same material was weighed again by Mr Webber on 10 October 2002 and he certified that the weight at that time was 1.272 kilograms.

8. During the course of the Disputed Facts Hearing, Mr Desmond Carroll, a forensic scientist employed by the Forensic Science Centre, gave evidence regarding the cannabis material contained in the cardboard boxes and the cannabis plants found growing in the glasshouses.  He said that freshly harvested cannabis tops, with some leaf mixed in, dries over a period of time until it stabilises.  He said that the weight of cannabis leaf, which has a large water content, would generally reduce in weight by about eighty percent from its harvested weight to its dried stabilised weight.  Mr Carroll said that with flowering tops, the reduction in weight may be only threefold.  He said that similar to tobacco, there needs to be a certain amount of drying out of harvested cannabis before it becomes acceptable for consumption.  It was his opinion that the reduction in weight of the cannabis material located in the cardboard boxes from an initial 6.031 kilograms to 1.273 kilograms could be expected, given the nature of the material and taking into account the weight loss ratio of the flowering cannabis tops and the cannabis leaf material arising from the drying process.

9. Mr Carroll said that with respect to the eight growing cannabis plants, located in the glasshouses, that they were all female plants.  He explained that consumers of cannabis have a preference for the flowering cannabis tops from the female plant.  It was his opinion, that the eight cannabis plants would yield “well in excess” of 1.75 kilograms of usable material.  He explained the term “usable material” as being the flowering cannabis tops, together with some leaf likely to be mixed up with the cannabis tops.  Mr Carroll stated that he used the expression “well in excess”  because it is his practice in his calculations of a likely yield from cannabis plants not to estimate any amount, with precision, above 300 grams.  Mr Carroll said that if he thought the yield would be above 300 grams he would simply indicate that its yield would be in excess of 300 grams without specifying any weight.

10. In his calculation, of a total yield  of well in excess of 1.75 kilograms, Mr Carroll was of the opinion that one of the bushes would yield over 300 grams, another would yield well in excess of 300 grams, five of the bushes would yield 200 grams each making a total of 1,000 grams and the remaining bush would yield between 150 and 250 grams.  It was his assessment of the yield of the first two bushes at over 300 grams which led to his conclusion that the total yield of the bushes would be well in excess of 1.75 kilograms.

11. With respect to the largest of the cannabis plants located in the glasshouses, Mr Carroll said that it could alone yield towards 1.5 kilograms of dried harvested material.  He said that the size of the plant was close to the largest plant he had observed in his experience and that largest plant had yielded 1.5 kilograms of dried usable material.  It is for this reason that Mr Carroll indicated that the plant would yield well in excess of 300 grams of usable material. 

12. The evidence of Mr Carroll was not challenged.  In any event, I accept his evidence, including the opinions he expressed during his evidence.

13. The Defendant gave evidence.  He said that he grew the plants from seeds.  He said that he originally planted ten plants but removed one of the plants because it was a male plant.  It was his evidence that the day before the police came to the market garden, he harvested one of the cannabis plants.  He said that the flowering tops and leaf material found drying in the cardboard boxes mostly came from that plant, although he had harvested a small amount of the material from some of the other plants.

14. Mr Stefanidis said that he was surprised at the size that some of the plants had grown.  He said his only previous experience in growing cannabis was about two years before the occasion when police attended at the premises.  He said that on that occasion he cultivated two plants and they were much smaller than some of the plants which he grew on this occasion.

15. The Defendant said that he had grown the plants to enable him to acquire cannabis for his personal consumption.  He said that he had commenced smoking cannabis when he was about twenty years of age.  Some time later he ceased consuming cannabis.  He again took up the consumption of cannabis about seven years ago.  He said that he recommenced using cannabis to ease the aches and pains that he suffered as a result of the heavy work he was required to undertake the market garden.  The Defendant said that he had a number of friends who consumed cannabis.  He said that whilst the purpose of growing the cannabis was for his own consumption, he would have shared some of the cannabis with his friends on social occasions.  He denied that he had any intention of selling any part of the cannabis harvested or to be harvested from the growing plants.

16. I found the Defendant to be a most unconvincing witness.  At times I thought he was being evasive.  Some of his evidence was simply unbelievable.  An example of such evidence was his evidence that over a period of seven years since he resumed using cannabis his supply of the cannabis was through the generosity of his friends except on one occasion when he bought a small amount for $15 and on another occasion he grew two cannabis plants on his property.

17. There were inconsistencies between his evidence and the Record of Interview which reflected on his credit.  One example of such inconsistency was his evidence that he smoked seven cannabis cigarettes a week and sometimes more in the winter in contrast to his Record of Interview that he smoked only three to four a week.  I gained the impression that his evidence of increased consumption was deliberately designed to assist his account that the cannabis was mostly for his personal use.  His explanation for misinforming the Police was unconvincing.

18. The Defendant admitted that in his interviews with the Police he had been untruthful on three occasions regarding the ownership of the cannabis plants and the drying cannabis.  He gave inconsistent explanations in his evidence for making those untruthful statements.  His evidence on this entire topic was most unsatisfactory.

19. There were other unsatisfactory aspects to his evidence.  I found his evidence regarding the source of the seeds he used to grow the plants to be unconvincing.  Furthermore, his explanation that he brought three sets of scissors with him at the time the cannabis was harvested in case of a breakage of the scissors was simply not believable.  These are but two of many aspects of his evidence which I found unsatisfactory.

20. As a result of the view I have taken of the Defendant’s evidence, I do not accept his evidence that he did not intend to sell any of the cannabis.  However, the fact that I do not accept that evidence is not the end of the matter.  The onus still remains upon the Crown to prove the circumstance of aggravation beyond reasonable doubt.  I now turn to consider that issue.

21. To establish the circumstance of aggravation, namely, that it was the intention of the Defendant to sell part of the cannabis, the Crown relies to a large extent on the quantity of the cannabis involved.  I accept that the total quantity of cannabis harvested and to be harvested was substantial.  The one harvested plant together with a small quantity harvested other plants had a dry weight of  usable material amounted to 1.273 kilograms seven months after harvesting. With respect to the cannabis to be harvested, one of the plants, according to Mr Carroll, would on its own have been likely to yield a dry weight close to 1.5 kilograms of usable material.  There was also the evidence of the likely yields of the other plants.   Even if I accept that the Defendant’s evidence that one of the plants was root bound and doomed to die, the quantity of cannabis remaining for harvesting was still large. 

22. The Crown also relies on the evidence of the accused that the property was farmed intensively.  Most of the usable land was used for growing produce.  Some of these plants took up valuable growing space in the glasshouses.  The Defendant’s annual income was a net $25,000.  This can be seen as a modest return for an enterprise that involved him working seven days a week.  It is the Crown case that the Defendant would not give up valuable growing space, without intending to receive some financial return from part of the cannabis crop.

23. Mr Caldicott submitted that even if I do not accept the Defendant’s evidence, then all that remain is that there are a small number of plants which have grown large and that would not be sufficient for the Crown to discharge its onus.  I do not accept the description that nine plants, is “a small number of plants”.  Even if I accept the Defendant’s evidence that the plants grew larger than expected, he must have had an expectation that the plants would yield a substantial size crop of consumable cannabis.  He was a market gardener, well versed in the development of plants and crops.  He was aware that the plants would be regularly watered and cared for in the same way as the other plants in the glasshouses.  He must have been aware of the benefit of growing plants in glasshouses.

24. In considering whether the Crown has discharged its onus, I need to take into account the submissions by Mr Caldicott that there were no items located on the property commonly associated with a person involved in the sale of cannabis.  I accept that there was no evidence of packaging, scales, references to customers, or other indicia normally associated with the carrying on of a retail business.  Further, there is no evidence of any item which might be considered to be associated with a wholesale operation.

25. Having taken all these factors into account, including the submissions of both counsel, I am satisfied beyond reasonable doubt that the Defendant intended to sell part of the cannabis to be harvested from the cannabis being produced in the glass houses.  In my view, the number of plants and the size of the yield which the Defendant would have expected from such plants is not consistent with an intention that it was to be used for personal use only with the supply, on occasions, to friends.  The conclusion I have reached is further confirmed when the number of plants is viewed against the background that they were taking up valuable growing space in the glass houses.

26. The Defendant is to be sentenced on the basis that a substantial amount of the cannabis harvested would have been for his personal consumption, that he would have supplied a small amount from time to time to friends and that some of the cannabis would have also been sold.