Weitering v The Queen

[2006] HCATrans 541

[2006] HCATrans 541

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 2006

B e t w e e n -

HERBERT CHARLES WEITERING

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 2.15 PM

Copyright in the High Court of Australia

MR R. MELASECCA:   May it please the Court, I appear with MR D.A. VARRASSO on behalf of the applicant.  (instructed by Rob Melasecca Barristers and Solicitors)

MR J.D. McARDLE, QC:   If the Court pleases.  I appear with my learned friend, MS G.T. CANNON, for the respondent in this application.  (instructed by Office of Public Prosecutions)

HAYNE J:   Yes, Mr Melasecca.

MR MELASECCA:   Your Honours, it is respectfully submitted that as a result of the incorrect interpretation of the law, the principles in respect of mens rea that are espoused by this honourable Court in Teh’s Case have been ignored.  The court erred, in my respectful submission, in not taking into account the intention of the defendant and what is occurring in the case of cannabis growing is that defendants are being punished for what they do not mean to do and, as a result, because plants are continually growing there are disparate penalties being applied to different defendants depending on the time of the arrest so that if an arrest occurs at the time of a seedling, one is in good behaviour bond territory.  If an arrest occurs at the time of full growth, then one is in automatic forfeiture land.  But at no stage does the defendant know when he becomes a commercial cultivator if the interpretation that is currently applied is correct.

HAYNE J:   Can I just understand the relevant provision?

MR MELASECCA:   Yes.

HAYNE J:   It is, is it not, a specification of 25 kilo or 100 plants is it, or is it ‑ ‑ ‑

MR MELASECCA:   What it is, your Honour, is that the reason that the strained interpretation has come about is that the schedule – there are two areas.  The first is that the definition section in section 70 refers to what is a commercial quantity and that is then referred to the schedule and in the Schedule 11 what is said is that a commercial quantity can be 25 kilos or 100 plants but what is not taken into account is that both the definition section and the schedule are multipurpose sections.  They cover both acts of trafficking and acts of cultivating.

What one needs to do is to actually look at the wording of what is cultivation and there are two areas where that may be found, your Honours.  The first is in the definition of “cultivation” and the definition of “cultivation” is clearly articulated as a specific reference to a plant and indeed in the definition section:

“cultivate”, in relation to a narcotic plant includes‑

(a)      sow a seed of a narcotic plant; or

(b)      plant, grow, tend, nurture or harvest a narcotic plant -

The actual section in question is section 72A and what is said, your Honour, is that that section is so blatantly obvious that there is no need to refer to anything other than the plain and clear wording of the section because the legislator has gone to the clear trouble of mentioning the word “plant” not once but three times within the confines of that section.

Indeed, your Honours, if your Honours are looking for the section you will find it in the applicant’s authority book in No 1, No 1 of the authority book, page 135, so the very first document in the book and 72A, your Honours will conveniently find at the bottom of the page.  What your Honours will see is that the words are explicit:

A person who, without being authorized by or licensed under this Act or the regulations to do so, cultivates or attempts to cultivate –

first occurrence –

a narcotic plant in a quantity of a drug of dependence –

second reference –

being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant is guilty of an indictable offence and liable to level 2 imprisonment -

What is respectfully submitted, your Honours, is that there is no necessity to be specific in articulating the words “being a narcotic plant” other than to say what you are looking at is a plant because to do anything other than that it means – if I could use an example and perhaps it might sound clumsy to your Honours, but if 12 defendants who are all neighbours have an identical mens rea and grow the same set of 20 plants and are arrested in alternative months of the year from January till December what will result is 12 different penalties.  The person that is arrested in January will get a good behaviour bond.  The person that is arrested in December will lose his property by way of automatic forfeiture and receive 25 years in gaol.

CALLINAN J:   Well, he has had all those extra months to repent and to destroy the plants.

MR MELASECCA:   You are right, your Honour, but the menace is that the mens rea is identical in respect of all 12 defendants.

CALLINAN J:   Well, I do not know whether that is right.

MR MELASECCA:   All have intended to grow ‑ ‑ ‑

CALLINAN J:   I mean one can say that there is a difference in mens rea involved in cultivating a plant that you are going to harvest in three months from one involved if you are going to harvest in nine months.

MR MELASECCA:   You cannot, your Honour, with respect.  The evidence is that the only interesting produce is the flowering heads of the plant and that only happens at the end of the growth period.

CALLINAN J:   Well, I do not have any expertise in this area.

MR MELASECCA:   No, but the botanist does and the botanist has gone to a lot of trouble to articulate in – and it is accepted, your Honour.  The botanist accepts it.  The police accept it.  The defendant has accepted it.  The knowledge is that the plant will lose, and it is clearly articulated, and I can point your Honours to the areas in the application book, but it is clearly articulated that there is a 75 per cent water loss.

That, therefore, is consistent with Parliament’s intent because what used to occur before 1997, before the Act was amended, was that there was reference only to weight so that what Parliament did, and was clearly articulated in Parliament, is that in order to have some consistency they introduced the notion of a numerical plant count so it mattered not when you were arrested because if you were arrested at seedling time you had the intent of growing the same number of plants at the other end.

So that, effectively, Parliament said if you have a numerical plant count and it equals this, then you will be guilty of the offence.  Now, what that means in the end is that because of the nonsensical application of the law by reference to a wet weight, and that is what is occurring by this incorrect interpretation, ridiculous results are occurring and the classic example is this case.

Mr Weitering was convicted of possessing a commercial quantity for personal use because the jury acquitted him of trafficking and the learned sentencing judge – and I apologise to your Honours for not having given your Honours this document early, but I only discovered it in preparation last night and I have given to your Honours an authority book supplement and the plea and sentence is conveniently contained therein.  Your Honours do not need to look at it as I can read it to your Honours, but essentially the sentencing judge was having trouble and what he said was this:

I always understood the word, “commercial”, to mean, “business”, which, with cannabis in this situation, would inherently mean trafficking.  He’s been acquitted of that.  So, what does the word, “commercial quantity”, mean when someone’s just been acquitted of trafficking?  May as well have called it, “flip‑flop”, quantity or something.  No, I’m not being facetious . . . It’s an intellectual dichotomy ‑ ‑ ‑

CALLINAN J:   But he is convicted of cultivating, but not for ‑ ‑ ‑

MR MELASECCA:   Well, he never ended up having a trial, your Honour, because what has happened in every one of these cases, the learned County Court judges have ruled that because a quantity of cannabis is referable to the wet weight they have never been able to argue the point ‑ ‑ ‑

CALLINAN J:   I think I understand that.  What I am saying is that, convicted or pleaded, whatever it was, he is liable for having cultivated a commercial quantity although he has been acquitted of trafficking.

MR MELASECCA:   Of trafficking.

CALLINAN J:   What necessary anomaly is there then?

MR MELASECCA:   The anomaly is this.  The legislature wanted to create parity between trafficker and cultivator by creating a quantity of cannabis that was equal in both circumstances and what they did is they calculated that 100 plants would produce 25 kilos of produce.

Therefore what you cannot have, with respect to your Honour Justice Callinan, is a situation where a trafficker is better off than the cultivator because, if one takes the view that you measure a wet weight, it means that a trafficker who is driving along the street with 24 kilos of dried cannabis head worth $125,000 is in a better position than a cultivator with 20 plants that weigh more than 25 kilos because that cultivator, if this interpretation by the Supreme Court is applied, will be subject to a 25‑year penalty, an automatic forfeiture, whereas the government botanist and the police all agree that once the water content goes what he will actually only have is 25 per cent of that.

In the case of Mr Weitering it was clearly articulated by the botanist that the 30 or so kilos that he had in the end would be well below that.  It would be somewhere around the 6 kilo mark.  So you have this inconsistency between a person who is trafficking and a person who is cultivating and the only way that the inconsistency can be resolved is if indeed the application of the law which eminently makes sense is that the dry weight of 25 kilos applies to the trafficker and the numerical plant count applies to the cultivator.  What we say is it is so plain because the legislature has gone out of their way in articulating that in section 72A.  

Your Honours will know, and I hear your Honour Justice Callinan saying that you do not have the expertise in cannabis, but as an agronomist anyone that grows potatoes or apples or anything is interested in the produce.  They are not interested in anything other than what is eventually made.  My learned friends say a good agronomist will get around this because he will grow bigger plants, but with respect to my learned friends and to the Supreme Court who articulated a similar fact, there is no evidentiary basis for good agronomy creating super plants other than Jack and the Beanstalk.  It just does not exist, with respect.

Good agronomy will not turn water into cannabis.  The reality is that the botanist’s evidence is that plants are plants and the only thing that happens to plants is that they are dried and when they are dried the real sale value comes along.  The interpretation that is placed upon by the respondents is a strained interpretation where they measure a wet weight and the consequence of that is non‑reflection of mens rea which is contrary to Teh’s Case and contrary even to the Supreme Court case of Nguyen.

The Supreme Court of Victoria in following Teh indicated clearly that what must occur is that a person’s intent must be followed and a person’s intent in growing cannabis is to eventually grow it, dry it and sell it, one would think, or consume it.  But that intent is not – where does one determine?  If your Honours look at the question of a cultivator, how does he know when he becomes a commercial cultivator if the interpretation by the respondents is indeed correct?  He does not know.  He cannot possibly know and therefore what is occurring is at some stage during the growth process he turns from someone in a 15‑year category into a 25‑year category with automatic forfeiture.  That cannot be, because if that is the case, we are ignoring the government botanist, the police informants, the defendants, all who in this case gave evidence that that is what was occurring. 

The situation, your Honour, is that Parliament – his Honour Mr Justice McGarvie referred to this early in the case of Kardogeros which your Honours will find conveniently in the applicant’s authority book.  It is No 2 in the authority book and his Honour Mr Justice McGarvie at page 280 of Kardogeros articulated as follows, three lines from the top, your Honours:

The fact that difficulties will in some cases be encountered in establishing the quantity intended to be sold is not in my opinion a justification for giving the relevant words a meaning other than their ordinary and natural meaning.  Parliament has ample power to provide formulae to overcome those difficulties if it chooses.

That is exactly what Parliament did, your Honours.  They came along and they declared and your Honours will see it in the Hansard that is attached in the authority book supplement, but they have indicated that it would be a commercial quantity irrespective of the weight of the plants.  It will reflect the consistent monetary value and it will be based on eventual street value. 

Can I say to your Honours this.  The only way that that can occur, the only way that it can be consistent, is if the interpretation is that 25 kilos applies to dry weight and numerical plant count applies to cultivation as per section 72A and the best example that I can give ‑ ‑ ‑

HAYNE J:   How many plants did the applicant cultivate?

MR MELASECCA:   Sixty two, your Honour.

HAYNE J:   So, on your preferred construction.

MR MELASECCA:   The evidence given by the botanist - and I will find it for your Honours ‑ ‑ ‑

HAYNE J:   On your preferred construction that it is dried weight or number it still meets the ‑ ‑ ‑

MR MELASECCA:   On the dry weight it would come down to well below the 25 kilos, your Honour.

HAYNE J:   But he beats the number criteria.

MR MELASECCA:   Yes.  That is what the jury indeed believed and that is indeed what his intent was and that is indeed what the experts, being the botanist and the police gave evidence as to that.  So that the general consensus in that case was that the eventual produce of those 61 plants would be a weight well below the commercial.

Your Honour, the eventual street value, if I can perhaps do it numerically for your Honours, 25 kilos if the experts are indeed accurate, at $5000 a kilogram equates to approximately $125,000 wholesale.  That is not the case with 25 kilos of wet cannabis.  The only way it can be consistent between trafficker and cultivator is if the reference is to 100 plants.  Then 100 plants will produce about 25 kilos which means that

there will be an identical quantification between trafficker and cultivator which is what Parliament intended. 

Might I remind your Honours, perhaps, if your Honours did not note it in the application book, but his Honour Judge Smallwood in the County Court based his decision on many rulings that had already been made by other judges in respect of an identical application and they were four and they are numbered 10, 11, 12 and 13 in the applicant’s authority book but the rulings were Deicke, who had 55 plants; Rullo, who had 23 plants; Cosson, who had 44 plants and Zalli, who had 32 plants.

The reality is that none of these defendants ever turned their mind to the question of the weight of their wet plant, yet each were convicted of having a commercial quantity despite the lack of mens rea and judges are sympathetic to this because just as Judge Smallwood articulated that “I can sentence you on no other basis than for personal use”, all judges are now sentencing people in these situations to sentences of perhaps suspended sentences where there is a maximum of 25 years so that what is occurring is that judges are needing to alter the sentencing criteria in order to get around what is an incorrect interpretation of the law and what is being ignored is that there are other consequences.

For example, in Mr Weitering’s case there is the automatic forfeiture of the family home.  So that despite a jury finding that this man grew cannabis for personal use, he is still subject to automatic forfeiture of the home in which his family lived, so it is a distorted application.  With respect, your Honours, you cannot interpret a section which is explicit in its wording by reference to a multipurpose schedule or to a multipurpose definition because it is just not necessary. 

Section 72A is not in any way ambiguous.  It simply articulates that what is being sought to enumerate is a numerical plant count and if that is the case, to use a multipurpose definition, to then stretch it and say no, you must weigh the plant wet is just not consistent with justice, with respect.  It ultimately means that people are being convicted of matters that they have never thought of and what has been clear is that this honourable Court has gone to great lengths over the last so many years to make sure that mens rea is a predominant purpose.  May it please the Court.

HAYNE J:   Thank you, Mr Melasecca.  We will not trouble you, Mr McArdle.

In our opinion there is no reason to doubt the correctness of the decision of the Court of Appeal.  It follows that special leave to appeal is refused.

The Court will adjourn.

AT 2.37 PM THE MATTER WAS CONCLUDED