Sokmas v Howard
[2013] WASC 399
•5 NOVEMBER 2013
SOKMAS -v- HOWARD [2013] WASC 399
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 399 | |
| Case No: | SJA:1072/2013 | 28 OCTOBER 2013 | |
| Coram: | ALLANSON J | 5/11/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | EFTO STEVEN SOKMAS MITCHELL WAYNE HOWARD |
Catchwords: | Criminal law Appeal Application to extend time to appeal Merit of grounds of appeal Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 10(3) Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 7(2), s 11(b), sch VI |
Case References: | Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 Zuccala v The State of Western Australia [2008] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MITCHELL WAYNE HOWARD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G W BAYLY
File No : PE 20459 of 2011
Catchwords:
Criminal law - Appeal - Application to extend time to appeal - Merit of grounds of appeal - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 10(3)
Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 7(2), s 11(b), sch VI
Result:
Application for extension of time to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms G M Cleary
Solicitors:
Appellant : Lumlan & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Zuccala v The State of Western Australia [2008] WASCA 129
1 ALLANSON J: Efto Steven Sokmas was convicted on 26 September 2012 on a charge that he cultivated a prohibited plant with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). He was fined and ordered to pay costs.
2 The appellant seeks leave to appeal from that decision. The appeal notice was only filed on 10 June 2013, and was more than seven months out of time. In an affidavit filed on 10 June, in support of an application to extend time, the appellant says that he does not recall being advised of the right to appeal and incorrectly assumed that he had no right of appeal until he engaged his present solicitors in about March 2013 to defend a related criminal property confiscation matter. Further delays were caused by his work commitments, and delay in obtaining his file from a previous solicitor.
3 In a second affidavit, filed 23 August 2013, the appellant gives some further detail. In particular, he candidly states that the lawyer who was acting for him when he was convicted has said that he did have a conversation with the appellant about the possibility of an appeal. The appellant maintains that he has no recollection of that conversation. He also says that, although he saw another lawyer in about late September 2012 on the confiscation matter, to the best of his recollection he was never properly advised on his rights to appeal.
4 The court may extend time under s 10(3) of the Criminal Appeals Act 2004 (WA). The discretion is wide with the broad question in each case being whether 'it is in the interests of justice to grant the extension': Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108]; Eastough v The State of Western Australia [No 2] [2010] WASCA 88. On many occasions the court has stressed the importance of complying with time limits. An applicant who seeks a favourable exercise of the court's discretion should give a cogent explanation for the delay. The explanation in the present matter is short on detail. I will, however, consider the merits of the application and return to whether it is in the interests of justice that time should be extended in the light of that consideration.
The trial and findings
5 The primary issue at trial was whether the appellant cultivated cannabis plants with intent to sell or supply the plants or any cannabis obtained from them, and thus committed an indictable offence under s 7(1) of the Misuse of Drugs Act. If that intent was not proved, he would be guilty only of a simple offence under s 7(2).
6 The appellant admitted that he had cultivated 13 plants that had been found at his home, and admitted that they were cannabis. By s 11(b), read with sch VI, he was deemed to have cultivated the plants 'with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another' unless the contrary was proved.
7 The prosecution called evidence from Detective Sergeant Forrest and Detective Sergeant Howard about the search of the appellant's workshop in Malaga, a property in Nilgen, and his home unit in Swan Street, Yokine, on 8 March 2011. Detective Sergeant Howard supervised the police operation, but was not present at the searches. His evidence was based on viewing video taken of the searches, and was in large part presented as expert evidence about cannabis cultivation and sale.
8 Detective Sergeant Forrest was present at the search of the unit at Swan Street. He said that police found nine plants, 50 to 60 cm in size, in a hydroponic growing area in a basement. In a separate area of the basement, in a cupboard, they found another 12 seedlings or cuttings (later referred to as clones).
9 Detective Sergeant Howard gave evidence that each plant at maturity would produce approximately one pound of the drug (the imperial system of weights retaining its currency in the sale of cannabis), and a pound would sell for approximately $4,000. The value and quantity of the drug were advanced as relevant to the appellant's intent.
10 The evidence regarding the finding of the plants and clones was not challenged.
11 In its closing, the prosecution contended that the charge was not in respect of the clones that had not grown roots because, without roots, they were not plants but 'just bits of plants stuck in the ground'. For that reason, the appellant was only charged in respect of cultivating 13 plants. The prosecution contended, however, that if the clones had struck root and grown they would have resulted in an additional 6 plants of cannabis. The appellant's aim was for them to grow, and they could be taken into account in relation to intention.
12 On the evidence, the magistrate found:
1. The appellant admitted cultivating 13 plants.
2. The appellant had been growing cannabis in sophisticated hydroponic set ups over a number of years.
3. The hydroponic growing area was in a cellar that had no windows. Access was by a staircase in a false floor, concealed in a cupboard. The growing equipment included transformers, electric timers, a large fluorescent light, an exhaust extraction pipe, and a water supply timer. The magistrate described the set up for growing the plants as sophisticated and elaborate.
4. Hydroponic equipment was found also at the appellant's workshop in Malaga and at another property he owned in Nilgen. The hydroponic equipment at Malaga had also been used for growing cannabis.
5. The appellant had acquired the hydroponic equipment despite having hydroponic equipment confiscated on two earlier occasions in 2003 and 2006.
6. The electricity consumption at the home unit showed that cannabis was grown continuously there from early 2009 to 8 March 2011 (and not just in 2010 as the appellant said).
7. Although the appellant claimed to be a heavy and regular user of cannabis, smoking it nearly every night, no loose cannabis ready to smoke was found by the police. The magistrate further found that 'even if he was [a heavy user], the amount of cannabis that he was growing would far exceed his requirements'.
13 The magistrate rejected some of the evidence given by the appellant. In particular, he rejected the evidence that the appellant was not very good at growing cannabis and did not produce much from his plants. The magistrate commented that the appellant's assertion that he used cannabis for sleep apnoea was not supported by medical evidence. And he described the evidence that the appellant did not know if his partner still used cannabis, and did not know where she got her cannabis from, as strange or odd.
14 The magistrate also described some of the appellant's evidence as vague and unsatisfactory, including his evidence about where he got the seeds to grow the cannabis, and why he had hydroponic equipment at his Nilgen property. He did not accept that the appellant did not supply cannabis to his partner.
15 None of those findings of fact has been challenged on appeal.
16 The magistrate concluded:
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 with intent to sell or supply. I am not persuaded on the balance of probabilities that the cannabis cultivated by the accused on 8 March 2011 was for personal use …
The appeal
17 The notice of appeal contained six grounds. On 23 August 2013, the appellant filed a minute of proposed additional grounds of appeal, containing two grounds. Those grounds are intended to replace the grounds in the appeal notice.
18 There are two parts to ground 1. It asserts that the magistrate erred when he dealt with s 11 of the Misuse of Drugs Act. Two particulars are given:
1.1 In 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.
1.2 His Honour failed to expressly find, when he should have, that all of the cannabis was not for the appellant's personal use.
Ground 1.1
19 Although ground 1.1 refers to the value of the cannabis, counsel for the appellant related it to the first of the factors the magistrate referred to in the passage quoted at par 16 above, that is, the quantity of the cannabis the appellant was growing.
20 There was no dispute that only the 13 live plants could be counted for the purpose of the deeming provision in s 11. And, for determining whether the charge could be dealt with before a magistrate, the charge was 'in respect of' 13 plants: s 9 and sch IV. On the question of intent to sell or supply, however, subject to the rules of evidence that apply in a criminal trial, the prosecution could rely on other evidence that was relevant.
21 The magistrate referred to the quantity and value of the cannabis when he was setting out his findings and conclusions. His Honour referred to the appellant's evidence that he was a heavy user of cannabis, and said:
There is no evidence which supports his assertion that he is a heavy user of cannabis. In any event, even if he was, the amount of cannabis that he was growing would far exceed his requirements.
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 19 pounds of cannabis heads which would have had a value somewhere in the order of $76,000.
22 It may have been preferable for his Honour to refer to the plants and clones, rather than use the word plants to include all of them, but it is clear what he meant. I am not persuaded that it was wrong to have regard to the evidence in that way, or that the magistrate misused it.
23 In considering the appellant's evidence that he would have used all of the cannabis himself, evidence that he was growing far more than he needed was directly relevant. The six clones had the potential to grow and produce cannabis. Perhaps some of them would not have matured, just as some of the plants may have died. But I can see no logical reason to distinguish between the plants and the clones when considering whether the appellant was growing more than he needed, and thus his intent in growing them.
24 The only reason advanced for excluding the clones from consideration was that they were not the subject of the charge. That is not, in itself, a reason. The evidence regarding the clones, including the evidence of potential yield on the assumption they all reached maturity, was given without objection. The magistrate was entitled to have regard to it on an issue to which it was relevant.
25 Although ground 1 was not argued specifically by reference to value, in my opinion, the magistrate could also properly consider the potential value of the crop when deciding the question of intent. The magistrate found that the appellant went to considerable effort and expense to gather all his hydroponic equipment (after twice having it confiscated). His electricity consumption had nearly trebled from early 2009, and remained high to the time of the police search. In the context of those expenses, the potential value of the crop was relevant to proving intent. The appellant did not suggest otherwise, but argued that only the value of the 13 plants was relevant. Again, I can see no basis for excluding the value that might have been realised from the clones, had they grown, when considering the appellant's intent at the time he was cultivating the plants.
Ground 2
26 Ground 2 asserts:
The learned magistrate erred in the way he calculated the monetary value of the cannabis.
Particulars
2.1 The prosecution relied upon 13 plants to prove the charge;
2.2 His Honour calculated the monetary value ($76,000) based upon 19 plants.
27 On the way the appeal was argued, ground 2 was an amplification of ground 1.1. The submission was, in effect, that the magistrate could only have regard to the quantity and value of the drug that could be produced from the 13 plants that the appellant admitted he cultivated. There was no error in calculating the value of the cannabis if his Honour could properly have regard to the plants and clones.
28 For the reasons set out in relation to ground 1.1, I do not believe ground 2 has merit.
Ground 1.2
29 The meaning of the second part of ground 1 is uncertain - at least to me. Counsel for the appellant explained the intent of the ground in this way:
That where one has an explanation put forward by an appellant that the drug was all for my personal use, that his Honour needs to expressly find that the cannabis was not for his personal use.
30 Counsel later returned to ground 1.2. He referred to his Honour's finding that he was not persuaded that the cannabis was for personal use. Counsel submitted that the magistrate did not say 'all for personal use' or indicate that any was for personal use. In those circumstances, he submitted, that there ought to have been a finding that some was for personal use and some to sell or supply.
31 I accept that the magistrate made no express finding, either in his reasons for conviction or his sentencing remarks, whether the appellant intended to supply the whole or only part of the drug that would be produced from the cannabis. The leniency of the sentence (a fine of $5,000) is consistent with a finding that the appellant intended to sell or supply only part of it. Section 7 does not require proof that the offender has the intent to supply all of the prohibited plant or drug. It is sufficient that he intends to sell or supply at least part of the drug: Zuccala v The State of Western Australia [2008] WASCA 129 [46]. The magistrate undoubtedly found intent to supply at least part of it, and that is sufficient to support the conviction.
Conclusion
32 The issues of extension of time and leave to appeal were referred for determination with the appeal. In my opinion, the appeal is without merit. 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.
33 I refuse to extend time.
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