SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WOOLDRIDGE v THE KING
[2024] SASCA 139
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
5 December 2024
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
This is an appeal against conviction and sentence.
Following a trial by judge alone, the appellant was found guilty of trafficking in a large commercial quantity of a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘the CSA’) (Count 1). He was also found not guilty of cultivating controlled plants for sale, contrary to s 33B(3) of the CSA (Count 2).
The charges arose out of a police search of the appellant’s home address. During that search, police located a locked bedroom which had been converted into a grow room used to cultivate cannabis. Throughout the grow room and other areas of the premises they located a total of 8.871 kg of female flowering cannabis, the subject of Count 1. They also located six juvenile cannabis plants in the laundry, the subject of Count 2.
The appellant was sentenced for the trafficking offence, as well as three offences to which he had pleaded guilty: (i) cultivating controlled plants (being an alternative to the Count 2 charge of which he was acquitted); (ii) diverting electricity; and (iii) possessing prescribed equipment.
For the cultivation offence, the judge imposed a conviction and a fine of $475. For the trafficking offence, the appellant was sentenced to imprisonment for three years and 10 months, and for each of the offences of diverting electricity and possessing prescribed equipment, imprisonment for one month and 22 days, made wholly concurrent with the sentence for the trafficking offence.
The appellant appeals his conviction on three grounds: (i) that the verdict on Count 1 is inconsistent with the verdict on Count 2; (ii) that the judge did not properly identify the use to be made of the verdict on Count 2 in considering Count 1; and (iii) that the judge erred in her directions in relation to the evidence of the appellant’s good character.
The appellant seeks permission to appeal against his sentence on two grounds: (i) that the appellant’s head sentence was manifestly excessive; and (ii) that the judge erred in declining to find exceptional circumstances justifying suspension of the appellant’s sentence of imprisonment.
Held, (per the Court), granting permission to appeal against conviction and sentence, but dismissing both appeals:
1.Due to the operation of the presumption in s 32(5) of the CSA, and the fact that the trial judge did not accept the appellant’s evidence, or otherwise make any positive finding to the effect that the appellant cultivated the six plants the subject of…
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CaseChat Overview and Summary
The legal issues before the court were whether the trial judge erred in finding the appellant guilty of possessing cannabis with intent to sell, and whether the trial judge erred in finding the appellant not guilty of cultivating cannabis with intent to sell. Specifically, the court considered the application of the presumption under s 32(5) of the Controlled Substances Act (CSA) and the inferences that could be drawn from the evidence regarding the appellant's intent. The court also considered the grounds of appeal against sentence, which involved the sentencing remarks and considerations made by the trial judge.
The court granted permission to appeal against conviction and sentence but ultimately dismissed the appeals. Regarding the conviction for possession with intent to sell, the trial judge found that the appellant had not discharged the onus of proving, on the balance of probabilities, that he did not intend to sell at least 2 kilograms of cannabis, thereby satisfying the presumption under s 32(5) of the CSA. In relation to the cultivation charge, the trial judge found that while the evidence of the large-scale cultivation operation was relevant circumstantial evidence to the appellant's intention, the lack of preparation for transferring the juvenile plants to the grow room, or for their subsequent growth, raised doubt as to the appellant's intention to sell them or their products. The court found no error in the trial judge's reasoning on these matters. The appeals against conviction were therefore dismissed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The trial judge then set out the following operative reasoning in support of her verdicts of guilty for Count 1, and not guilty for Count 2:[3][3] Reasons at [151]-[160].Consideration of count 1The prosecution case relies on the presumption in s 32(5) of the Act that the accused possessed the cannabis for sale but also the inferences that can be drawn from the manner in which the grow room was established, the total quantity and value of the cannabis and that the cannabis in the grow room was packaged in amounts that approximated amounts of a pound.I reject the accused’s evidence that all the harvested cannabis was for his personal use.The accused has not satisfied me on the balance of probabilities that he did not intend to sell at least 2 kilograms of the cannabis.It follows that I am satisfied beyond reasonable doubt that the accused is guilty of count 1.Consideration of count 2I direct myself that it is impermissible for me to reason that because the accused is guilty of count 1, he must therefore be guilty of count 2 or that he is of bad character and therefore more likely to have committed the offence.The evidence of count 1 is circumstantial evidence relevant to an assessment of the accused’s intention in cultivating six cannabis plants. It is evidence capable of supporting an inference that the accused was in the business of selling cannabis and as a circumstantial fact, makes it more likely in relation to count 2 that the accused intended to sell at least some or all of the cannabis plants or their products. It cannot be used for any other purpose. As it might be thought unlikely that a person would cultivate 6 cannabis cuttings for personal use when in possession of a large quantity of dried cannabis, I am satisfied the probative value of the evidence of count 1 for the identified purpose outweighs any prejudicial effect it may have on the accused. The use is and can be, kept separate and distinct from any impermissible use (i.e. mere bad person reasoning, or reasoning which involves a propensity or disposition as circumstantial evidence).The scale of the cultivation in the grow room, the effort involved in the construction of the grow room and the timing of the cultivation of the six cuttings, is strong circumstantial evidence that the accused was in the business of selling cannabis and that in furtherance of that business, he cultivated the six cuttings with the intention to grow the plants to maturity, with the intention of selling any of them or their products.The accused’s evidence was that the cuttings had been growing for six to seven weeks, and he started growing them as a back-up crop to replace the first crop if it failed, and he harvested the mature plants in the grow room about a week prior to police attendance. There is no basis to reject the accused’s evidence about the age of the cuttings or the timing of the harvest.There was no indication that steps had been taken to prepare the grow room to receive the plants or to prepare larger pots for the plants. This is significant given the expert evidence establishes that cuttings are transferred to larger pots only a few weeks into the growing cycle.That the six- to seven-week-old plants had not been transferred to pots in the grow room or steps taken to prepare the grow room to receive them, raises some doubt as to what the accused was intending to do with them. The prosecution case was that the 6 cuttings were for the accused’s next cultivation for the purposes of sale, however if that was the case, it could be expected that the plants would have been moved into the grow room, or some preparations made to move them by the time police attended. The evidence does not provide an adequate explanation for why the plants remained in the laundry if the accused intended to sell any of them or their products. It follows that I am not satisfied that the evidence establishes beyond reasonable doubt that the accused intended to sell any of the 6 cannabis plants or their products.