R v Tsentidis - [2004] SADC 188

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TSENTIDIS
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Judge Anderson
23 December 2004
CRIMINAL LAW
Count 1 - Producing Cannabis:
- dispute of fact as to number of plants owned by Accused - all plants found held to be those of Accused
Count 2 - Possessing Cannabis for Sale:
- evidence of high consumption
- no indicia of selling
- onus on Accused to prove explanation on balance of probabilities
- not guilty as charged
- guilty of simple possession

R v TSENTIDIS
[2004] SADC 188

Steven Tsentidis is charged on Information with one count of Producing Cannabis and one count of Possessing Cannabis for Sale.
He entered a plea of guilty to Count 1 on the basis that his production was 16 rather than 26 plants as alleged in the Crown case. There is therefore a dispute of fact on this issue. A plea of not guilty was entered to Count 2 with a further plea of guilty to the lesser alternative offence of Simple Possession of Cannabis.
Mr Crowe appeared for the Director and Mr Dadds appeared for the Accused.
In relation to Count 1 it is not in issue that when the police attended at the Accused’s home property on 9 May 2001 they found cannabis growing at three separate locations - in a bedroom in the house (four plants), in an open area in the shed (12 plants) and in a growing room constructed within the shed (10 plants).
When the Accused was spoken to on that day by Detective Senior Constable Hunt he admitted ownership of the cannabis plants in the house and in the open area in the shed. His position about the remaining 10 was somewhat more equivocal in that interview, but became firm in the witness box. There he said, clearly, that those 10 plants were the property of his friend, Mavridis, and that he was “minding” them for him because of a cannabis growing “Dob in Day” being conducted by the police via advertising and Crimestoppers.
In evidence Mavridis gave a like explanation as to how the plants were taken by the Accused at the request of Mavridis to avoid “Dob in Day” detection. Whilst Mavridis was quite firm in this evidence, he was far less convincing when asked why it was that he had not sought the return of these small plants when the “Day” had passed. In this vein, he was unable to say, in any satisfactory way, when it was, if at all, that the Accused told him what had happened to his plants on 9 May 2001. I reject the Accused’s evidence that he told Mavridis of their fate the next day or so. I find that this did not occur until after the Accused received a summons charging him with the relevant offence in relation to those plants in October 2002. Thereafter, Mavridis went to the police on 28 October 2002 and told Detective Senior Constable Hunt that the 10 plants were his.
In a dispute such as this it is necessary that the Crown prove the version of the facts upon which it relies beyond reasonable doubt.
Mr Crowe submitted that the only realistic inference from what the police found on 9 May 2001 was that these plants were being grown by the Accused on his own behalf. That inference is said to come from the fact they were found in a specially constructed drying room under lights. It is said to be incidental that also in the room was cannabis cut from the plants in the shed, which was drying.
Whilst I accept that these 10 plants came into the Accused’s possession as he and Mavridis described, I am far from convinced that it was ever intended that they be returned. I am satisfied that the better scenario is that Mavridis, as a novice cannabis grower, with his first plants and made nervous by fear of family discovery on “Dob in Day” and knowing from his friendship with the Accused that he was a grower of cannabis, gave his plants to him without in any way expecting them, or any part of them, to be returned to him. Support for this conclusion is to be found in Mavridis’s evidence to the effect that his wife told him “to get rid of them” (T120).
Were this not so, then it is incomprehensible that, having put his first crop into safekeeping, or so he thought, he would never seek its return or be told of its fate until the Accused became in need of assistance to reduce the number of plants owned by him after he received his summons. I reject the evidence of Mavridis that at the time he gave the plants to the Accused he did not know that the Accused cultivated cannabis.
Further inferences to be drawn from the evidence given on behalf of the Accused support such a conclusion. The evidence points to extreme consumption of cannabis at the Accused’s residence by at least two persons each day and more on non‑work days. Such consumption underpins the Accused’s case in relation to Count 2, but is also relevant to Count 1 in relation to what I am satisfied was his ongoing desire to produce as much cannabis as possible. Were that not so, why would he grow 12 plants given to him by his brother when he was already growing four brought from him, all of which were at a similar stage of development. I reject his evidence that his aim for the future was to produce only between one and three cannabis plants (particularly bearing in mind that he had earlier produced at least six).
Accordingly, I am satisfied that the Crown has disproved beyond reasonable doubt that on 9 May 2001 the 10 plants were owned by Mavridis. I find that they had been given to the Accused by Mavridis, who then intended to grow them out - thus explaining their placement under lights in the growing room on 9 May 2001 - the day of their receipt. Thus, I am satisfied beyond reasonable doubt that the 26 plants located belonged to the Accused when they were located by the police.
The Accused gave evidence, as I have mentioned. In that evidence he spoke of very high daily cannabis consumption by himself. In addition, his cousin, Harry Tsentidis, who boarded with the Accused and his defacto, gave evidence of his high daily use of cannabis and which became more on days when he did not have to work.
In addition, the son of the Accused gave evidence of his regular visits to his father’s home two or three weekends each month, often with a friend, when he or they joined with his father and Harry in significant cannabis usage. Further, he said that when he left he regularly took a handful of cannabis head with him for subsequent consumption.
Natasha Rebbeck, the Accused’s defacto, gave evidence of her very limited use of cannabis when not working. However, she supported the evidence given by the Accused and those others to whom I have referred as to the significant nature of their consumption.
When the police inspected the Accused’s premises on 9 May 2001, they did so in a very thorough way. They failed to locate any indicia of sales - whether large or small. As to the former type, there were no scales, vacuum sealing machines or plastic wrapping located. As to the latter, there were no small snap‑lock type bags or lists of names and/or amounts of money which may indicate smaller “deal like” transactions.
It is common ground that there were no signs of an extravagant lifestyle nor of money located at the house or traced through financial institutions.
The extravagant consumption of cannabis described repeatedly in evidence lends support to the Accused’s need to ensure continuity of supply. His poor financial circumstances required him to grow cannabis whenever he had the opportunity so as to ensure that he maintained a sufficient supply for those for whom he provided.
The loose cannabis seized by the police weighed 552.5 grams. Consequently, as it exceeds 100 grams, the onus of proof is upon the Accused to prove, on the balance of probabilities, that he did not have possession of that cannabis for the purpose of sale.
I am not satisfied that the inferences upon which the Crown relies to negate the explanation given by the Accused, with the support of his witnesses, are able to disprove that explanation beyond reasonable doubt. I find that the Accused has satisfied the onus he carries pursuant to s32(3) of the Controlled Substances Act, 1984.
Accordingly, I find the Accused not guilty as charged on Count 2 of the Information, but guilty of simple possession of cannabis as he pleaded.