Sokmas v Howard
[2014] WASCA 181
•8 OCTOBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SOKMAS -v- HOWARD [2014] WASCA 181
CORAM: McLURE P
MAZZA JA
HALL J
HEARD: 15 AUGUST 2014
DELIVERED : 8 OCTOBER 2014
FILE NO/S: CACR 227 of 2013
BETWEEN: EFTO STEVEN SOKMAS
Appellant
AND
MITCHELL WAYNE HOWARD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :ALLANSON J
Citation :SOKMAS -v- HOWARD [2013] WASC 399
File No :SJA 1072 of 2013
Catchwords:
Criminal law - Appeal against decision - Appellant convicted of cultivation of cannabis with intent to sell or supply - Whether express error material - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 11(b), sch VI
Result:
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms A C Longden
Solicitors:
Appellant: Lumlan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Phillips v The Queen (2006) 225 CLR 303
Sokmas v Howard [2013] WASC 399
McLURE P: I agree with Mazza JA.
MAZZA JA: This is an appeal against the decision of Allanson J in Sokmas v Howard [2013] WASC 399.
Background
The appellant was charged in the Magistrates Court that on 8 March 2011 at Yokine he cultivated a prohibited plant, namely cannabis, with intent to sell or supply to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). On 26 September 2012, after a trial before Magistrate Bayly, the appellant was convicted as charged. He was fined $5,000.
On 8 March 2011, police officers executed search warrants at premises owned by the appellant in Yokine, Malaga and Nilgen. At the Malaga and Nilgen properties, the police found equipment associated with the hydroponic cultivation of cannabis. In the basement of the Yokine property the police discovered a working hydroponic system in which cannabis plants were being cultivated. The police found nine cannabis plants between 50 and 60 cm high and 12 cannabis 'clones'. A 'clone' is propagated by dipping an offcut from a cannabis plant into a mix to encourage root growth and then placing it in a growing medium under lights. Four of these clones had struck roots and thus had become plants. Another two clones had died. Six clones had not struck roots. Accordingly, in total, 13 plants were being cultivated.
At trial, the appellant admitted he cultivated 13 plants. As the appellant had cultivated more than 10 plants, he was presumed to have an intention to sell or supply them to another, unless the contrary was proved by him on the balance of probabilities: s 11(b) and sch VI of the Misuse of Drugs Act. The sole issue for determination at trial was whether the appellant had discharged this onus. His case was that he intended to consume all the cannabis he produced.
The prosecution case with respect to the appellant's intention went beyond the presumption in s 11(b) of the Misuse of Drugs Act. The prosecution also relied upon expert evidence as to the quantity of cannabis that could be grown and its value, the nature and extent of the hydroponic system found at the Yokine premises and elsewhere, and unchallenged propensity evidence that the appellant had hydroponically grown cannabis in 2003 and 2006. In addition, the prosecution relied upon evidence obtained from Synergy to the effect that, from 18 January 2009 until 29 March 2011, the electricity consumption at the Yokine premises was
very high and was consistent with the hydroponic cultivation of cannabis. The prosecution also adduced evidence from a financial investigator for the purpose of demonstrating that the appellant and his partner had an unexplained source of income. The learned magistrate did not accept this evidence and nothing more needs to be said about it.
Expert testimony provided by Detective Sergeant Howard was to the effect that one hydroponically grown cannabis plant can produce approximately a pound of dried cannabis bud material (15 March 2012, ts 5). He said that based on his experience, a heavy user of cannabis could consume one ounce of cannabis per week (15 March 2012, ts 9). Detective Sergeant Howard reviewed the police search video of the premises at Yokine. He testified as to the number of plants and clones that were discovered there. He testified that had all the plants and the six clones which had not struck reached maturity, there was a potential for 19 plants to yield 19 pounds of cannabis (15 March 2012, ts 27). He said that at the time of the cultivation, cannabis was being sold for between $4,000 and $5,000 a pound. Assuming that all of the plants reached maturity, the cannabis grown, if sold in pound lots, would be valued at between $76,000 and $95,000. None of this evidence was challenged in cross‑examination.
The appellant gave evidence in his defence, as did his partner's mother, Anita Dropolich. He testified that he has, over a period of years, cultivated cannabis for his own use. He claimed that he was a heavy user of cannabis and that he used the drug to relieve the symptoms of sleep apnoea from which he suffered. He asserted that he was not very good at growing cannabis. He said that he had never been able to achieve a yield of approximately 1 pound of cannabis per plant (24 August 2012, ts 7). He denied supplying his partner. He denied any involvement in the sale or supply of cannabis to others. Unhelpfully from the appellant's perspective, Ms Dropolich testified that she had never seen the appellant smoke cannabis.
The learned magistrate's reasons for decision
The learned magistrate was not persuaded on the balance of probabilities that the cannabis cultivated by the appellant was for his personal use.
The learned magistrate considered in some detail the appellant's evidence and found it to be 'vague and unsatisfactory' (26 September 2012, ts 16). He found that the appellant had been growing cannabis using sophisticated hydroponic systems 'over a number of years'. He found there was no evidence that the appellant was a heavy user of cannabis and that, in any event, the amount of cannabis he was growing 'would far exceed his requirements'.
The learned magistrate's reasoning relied in part upon his acceptance of the evidence of Detective Sergeant Howard. His Honour referred to Detective Sergeant Howard's evidence in these terms:
According to Detective Sergeant Howard, had all the plants which the accused was cultivating grown to maturity the accused would have expected to have harvest [sic] 19 pounds of cannabis heads which would have had a value somewhere in the order of $76,000 (26 September 2012, ts 17).
The learned magistrate rejected the appellant's evidence that he had never supplied his partner with cannabis.
In the conclusion to his reasons, his Honour said:
In my view, given the quantity of cannabis the accused was growing, the expense which he outlaid on equipment and electricity leads me to conclude that he did indeed cultivate [it] with intent to sell or supply (26 September 2012, ts 17).
The single judge appeal
The appellant did not file an appeal notice until 10 June 2013, more than 7 months out of time. The appellant filed two affidavits in support of an application to extend time. Notwithstanding the very considerable delay, on 28 August 2013, prior to the hearing before Allanson J, an extension of time was granted by another judge. As will become apparent, Allanson J was unaware of this. He regarded the question of an extension of time as a live issue.
The grounds of appeal relied upon before Allanson J were as follows:
Ground 1
The learned Magistrate erred when he dealt with section 11 of the Misuse of Drugs Act 1981 (‘the Act’);
Particulars:
1.1In finding that the appellant had failed to discharge the burden imposed by Section 11 of the Act, His Honour placed undue reliance upon the value of the cannabis;
1.2His Honour failed to expressly find, when he should have, that all of the cannabis was not for the appellant’s personal use.
Ground 2
The learned Magistrate erred when, in determining whether the appellant had an intention to sell or supply the cannabis, he incorrectly calculated the monetary value of the cannabis;
Particulars:
2.1The prosecution relied upon 13 plants to prove the charge;
2.2His Honour calculated the monetary value ($76,000) based upon 19 plants.
His Honour considered that ground 2 was no more than an 'amplification' of ground 1.1.
The appellant submitted before Allanson J that the learned magistrate was wrong to have regard to Detective Sergeant Howard's evidence that had all the plants and clones grown to maturity, the appellant would have expected to harvest 19 pounds of cannabis head worth in the order of $76,000. In his oral submissions, the appellant's counsel contended that, as the prosecution case was that the appellant had propagated 13 plants, his Honour should not have relied upon the value of $76,000 based on a cultivation of 19 plants. Counsel submitted that this evidence was 'somewhat speculative' (28 October 2013, ts 6).
The appellant's counsel did not strongly press particular 1.2. In effect, his submission was that the learned magistrate was required to expressly find, but did not, that the cannabis the appellant cultivated was not for his personal use.
The learned primary judge concluded that there was no merit in the grounds of appeal. As to particular 1.1 (and thus ground 2), his Honour concluded that Detective Sergeant Howard's evidence as to the potential yield and value of the plants and clones was relevant to the appellant's intent to sell or supply to another. As to particular 1.2, he concluded that, upon a consideration of the learned magistrate's reasons for decision as a whole, coupled with the leniency of the sentence imposed, '[t]he magistrate undoubtedly found intent to supply at least part of it, and that is sufficient to support the conviction'.
Having found that the appeal was without merit, Allanson J then turned to what he believed was the outstanding issue of whether an extension of time should be granted. As to this he said:
The application to appeal was substantially out of time, and the appellant has not given a satisfactory explanation for the delay. The interests of justice do not call for an extension of time.
Accordingly, Allanson J refused to grant an extension of time to appeal.
The certificate of conclusion records the final outcome of the appeal as being:
1.Extension of time to appeal and leave to appeal is refused.
The proceedings in this court
Before this court, the appellant pursued two grounds. The grounds are expressed in this way:
Ground 1
The learned Judge erred when he refused to grant an extension of time to commence the appeal;
Particulars:
1.1Justice McKechnie had previously granted an extension of time.
Ground 2
The learned Judge misdirected/misinformed himself when considering the way the initial Court approached the application of Section 11 of the Misuse of Drugs Act 1981;
Particulars:
2.1His Honour should have found that Magistrate Bayly was not correct in his approach to the ‘deeming provision’ because he had taken into account the value of the cannabis plant clones that were not the subject of the charges.
Leave to appeal has been granted in respect of ground 1. The question of leave to appeal in respect of ground 2 was referred to the hearing.
Submissions
It is common ground that Allanson J made the error alleged in ground 1. It is also common ground that, despite that error, his Honour considered the merits of the appeal.
In his written submissions on ground 1, the appellant's counsel submitted that the primary judge was 'needlessly critical of the explanation proffered by the appellant for the delay' and that it could not 'now safely be said that this error did not cloud the way that Allanson J approached his determination of the two grounds of appeal that were before him'.
The appellant's written submissions with respect to ground 2 were not entirely clear. In his oral submissions, the appellant made two points. First, that the learned magistrate erroneously found, in effect, that the appellant cultivated 19 plants, worth approximately $76,000, contrary to the State's case that he had cultivated 13 plants. Second, that the learned magistrate did so having wrongly taken into account Detective Sergeant Howard's evidence as to the potential value of the cannabis, which may have been grown from the six clones which had not struck (appeal ts 8).
The appellant's counsel accepted that ground 2 must fail unless the first point was made out.
Outcome - ground 1
Although Allanson J erroneously thought that he had to determine the appellant's application for an extension of time, he also dealt with the merits of the appeal. It is crystal clear from his reasons that he concluded that neither of the grounds of appeal had any merit. Plainly then, the grounds did not have a reasonable prospect of succeeding. Although the primary judge's reasons do not expressly say this, it is an inescapable inference from the reasons and is reflected in the formal order of the court refusing leave to appeal.
There is nothing in his Honour's reasons to support the submission that his Honour's view as to the delay in commencing the appeal 'clouded' his consideration of the grounds of appeal.
While ground 1 is made out, it will be a pyrrhic victory unless Allanson J's decision on the merits was wrong. This brings me to ground 2.
Outcome - ground 2
The short answer to ground 2 is that the learned magistrate's reasons cannot reasonably be read as the appellant contends.
The relevant passage of the learned magistrate's reasons relied upon by the appellant concerns Detective Sergeant Howard's evidence which is set out at [11] hereof.
In that passage the learned magistrate did no more than summarise Detective Sergeant Howard's unchallenged evidence. It is clear from the language used that the learned magistrate understood that Detective Sergeant Howard's evidence was as to the potential number of plants that the appellant could have cultivated, and the potential value of the cannabis that could have been produced from the plants that were growing and the six clones, had those clones struck and matured.
The learned magistrate did not, in the passage relied upon by the appellant or at any other time in his reasons, find as fact that the appellant had cultivated 19 cannabis plants worth approximately $76,000.
I will deal with the appellant's second point.
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Phillips v The Queen (2006) 225 CLR 303 [50].
The fact in issue in this case was the appellant's intention. The appellant contended that he intended to use for himself all of the cannabis he cultivated. The yield and value of not just the 13 plants that were being cultivated, but the clones which the appellant was attempting to grow, were matters that could rationally affect the learned magistrate's assessment of the appellant's intention on 8 March 2011. The clones and the potential value of the cannabis they could produce if they reached maturity were indicative of an ongoing commercial operation designed to produce substantial quantities of cannabis with a significant street value. It was evidence that increased the probability that the 13 plants were being cultivated with an intention to sell or supply cannabis and decreased the probability that the appellant grew the plants all for his own use. The learned magistrate did not err in taking into account, in addition to the other evidence in the case, the potential value of the clones and Allanson J did not err in concluding that it was correct for the magistrate to do so.
Ground 2 has no reasonable prospect of succeeding.
Conclusion and orders
Although ground 1 has been made out, his Honour's error has not led to any miscarriage of justice. Ground 2 has no reasonable prospect of succeeding. The appeal must be dismissed.
The orders that I would make are as follows:
1.Leave to appeal on ground 2 is refused.
2.The appeal is dismissed.
HALL J: I agree with Mazza JA.
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