R v Williamson No. Sccrm-97-243 Judgment No. S6464

[1997] SASC 6464

R  v  WILLIAMSON

Court of Criminal Appeal:  Doyle CJ, Lander and Bleby JJ
DOYLE CJ:        This is an appeal against a sentence imposed by the District Court.
The appellant pleaded guilty to a charge of possessing cannabis for sale.  The quantity of cannabis was just over four and a half kilograms and was in the form of cut cannabis or cannabis leaf.  The maximum penalty for this offence is imprisonment for ten years or a fine not exceeding $50,000 or both.  A higher maximum penalty is attracted if the amount of cannabis exceeds ten kilograms.
The judge sentenced the appellant to imprisonment for three years and fixed a non-parole period of eighteen months.
The facts are as follows.
The police went to a house that the appellant occupied at Mypolonga.  They had warrants to search the premises and so must have been acting on information given to them.  The house was described by the sentencing judge as `in a relatively secluded area'.
In a shed at the back of the house, the police found equipment for the hydroponic growing of cannabis, although none was being grown at the time.  Drying cannabis was found in the shed and in the house.
The judge sentenced the appellant on the basis that, as cannabis was not being grown, this was not a commercial enterprise. I take him to mean that it was not a continuing and wholly commercial enterprise, because the judge sentenced on the basis that some would be sold to friends and some would be consumed by the appellant.  However, he accepted that it would be sold to recoup costs and not for profit.
In my opinion, that latter point is of little significance. The criminality lies in the sale or intention to sell.  The price at which the sale is made is not of great significance.
I should also note that it is implicit in what the sentencing judge said that he accepted the appellant's claim that he was a long-term user of cannabis and was producing the cannabis, to a considerable extent, for his own use.
It should also be noted that some - and how much precisely is not clear - of the cannabis was mouldy.  This was, therefore, not a highly successful growing operation, but again, that is of no particular significance in my opinion. However, I accept that it probably effects, to  some extent, the value of the cannabis.
Also of some slight relevance is the fact, that I again accept, that when dry, the cannabis would have weighed less than its measured weight of about four and a half kilograms. How much less it would have weighed when dried is not known.
As to the appellant himself, he is 35 years of age.  He has a number of relatively minor convictions.  However, they include two drug offences.  In 1983, he was convicted of possessing Indian hemp and fined.  In 1988, he was convicted of selling cannabis and received a sentence of three months imprisonment, but that sentence was suspended.
In sentencing the appellant, the judge gave what he described as a very small discount on account of the plea of guilty. It was a small discount because the plea was not entered until the day of the appellant's trial.
It is not now disputed that the judge made an error.  He sentenced on the basis that the maximum sentence was 25 years imprisonment or $500,000 or both, being the maximum applicable to amounts of 10 kilograms or more.  That being so, and because this error could have affected the sentence imposed, we must consider the sentence afresh.
I agree that a small discount should be given for the late plea of guilty.  I also accept that the fact that most of the crop was for personal use is of some relevance by way of mitigation.  However, I emphasise that despite this, the offence has been treated by Parliament as a serious one and remains a serious one.
I also accept, as I have said earlier, the significance, for what it is worth, of the fact that some of the cannabis was mouldy and that its weight would have reduced a little as it dried.
On the other hand, as I have mentioned, the appellant is not a man with an unblemished character.
Although he does not have an unblemished character, he does appear to have a reasonably good work history and he has prospects of obtaining employment.
I turn to the question of head sentence.
The quantity involved was quite large.  By his plea of guilty, the appellant admits the intention to sell, but is to be sentenced on the basis that he would have consumed some of the cannabis himself and sold some to friends.  I am not in a position to say how much he would have consumed and how much he would have sold, but I accept that he would have consumed a substantial amount over time.
Parliament has made it clear that the selling of drugs, including cannabis, is regarded as a serious offence. Parliament has also made it clear that possession of this quantity with the intention of selling is a serious offence. The amount must be less than two kilograms before a lesser maximum is attracted.  As I mentioned earlier, the present offence attracts a maximum of ten years.
In my opinion, it does require the imposition of a term of imprisonment.
It is quite clear that the appellant set out, in a reasonably sophisticated manner, to produce a crop that would meet his own needs and give him additional material to sell. Bearing in mind the circumstances recited by me, and the fact that some credit can be given for the plea of guilty, and the fact that it is almost ten years since the appellant's last offence involving drugs, I consider that a head sentence of two years and six months is called for and is appropriate.  In my opinion, such a sentence is required to reflect the seriousness of the offence and to deter the appellant and others from engaging in such conduct.  In my opinion, the appellant has shown that a clear message needs to be sent to him in relation to the criminality of this conduct.
I consider that there remains a reasonable prospect of the appellant returning to the community as a useful and law abiding member and that it is appropriate to fix a somewhat lower non-parole period than usual, even though the appellant has had the benefit of a suspended sentence.
I would fix a non-parole period of one year and three months.
I turn to the question of suspending the sentence.
I can find no good reason to do so.  There is nothing in the circumstances of the offence that calls for it to be regarded as other than a run-of-the-mill offence of its type. As to the personal circumstances of the appellant, there are no circumstances, in my opinion, that suggest that a suspended sentence is particularly appropriate for him. Moreover, it is relevant that he has had one chance, and I refer again to the suspended sentence.  Of course, a person may receive a suspended sentence on more than one occasion, but, as I see things, the present case is simply a case of a person who decided to take the chance of being caught and was caught.
There is nothing in the appellant's personal circumstances to my mind that calls for particular leniency, nor is there anything to suggest that in his case leniency on this occasion is likely to be particularly beneficial.
The court is always reluctant to see a person imprisoned for the first time, but this is a prevalent offence and it is one that the courts must treat firmly.
For those reasons, I would not suspend the sentence.
Accordingly, I would allow the appeal, set aside the sentence imposed by the District Court, impose a head sentence of two years six months imprisonment, fix a non-parole period of one year three months imprisonment, both to run from 15 August 1997, and otherwise I would confirm the orders made by the District Court.
LANDER J:         I agree that the appeal should be allowed and I agree with the sentence imposed by the Chief Justice.
BLEBY J:   I agree and I have nothing to add.
DOYLE CJ:        The order of the court is as follows:

1. Appeal allowed.

2. Set aside the sentence imposed by the District Court.

3. Impose a sentence of two years, six months imprisonment.

4. Fix a non-parole period of one year, three months.

5. Direct that the head sentence and non-parole period run from 15 August 1997.

6. Otherwise confirm the orders made by the District Court.