Wooldridge v The King - [2024] SASCA 139

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wooldridge v The King

Details

AGLC: Wooldridge v The King [2024] SASCA 139
Case: [2024] SASCA 139
Decision Date: 5 December 2024

CaseChat Overview and Summary

The appellant, Wooldridge, appealed against his conviction and sentence for drug offences. The prosecution's case was that the appellant possessed a significant quantity of cannabis with the intention to sell, and that he cultivated six juvenile cannabis plants with the intention to sell them or their products. The appellant admitted possession and cultivation but maintained the cannabis was for personal use, making the sole issue at trial the appellant's intention to sell. The prosecution relied on a statutory presumption of possession for sale in relation to the harvested cannabis and inferences drawn from the circumstances of the cultivation for the second count.

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

For the reasons which follow, permission to appeal against conviction and sentence should be granted, but the appeals dismissed.BACKGROUND The prosecution case in relation to Count 1 was that the appellant was in possession of 8.871 kg of dry, 100 per cent female flowering cannabis, intending to sell at least 2 kg. In relation to Count 2, the prosecution case was that the appellant cultivated the six juvenile cannabis plants intending to sell the plants or their products. The appellant admitted both the possession of the cannabis and the cultivation of the plants. He gave evidence at trial that he established the grow room and cultivated the cannabis for his own personal use, and was not intending to sell any of the cannabis plants or products. The sole issue in relation to both counts was therefore whether the appellant had the requisite intention to sell. In the case of Count 1, the prosecution relied on the presumption, under s 32(5) of the CSA, that, in the absence of proof to the contrary, the appellant had the cannabis in his possession for sale. In the case of Count 2, the prosecution case included reliance upon the inferences that could be drawn from the offending arising out of Count 1.Prosecution case Evidence was led from police that they attended the appellant’s Morphett Vale home address on 27 April 2021. Towards the rear of the house they found a room with a locked door (referred to as ‘bedroom 3’). The keys to that door were located by police in the kitchen pantry. Upon entering bedroom 3, police found a room containing multiple ballast boxes attached to the wall, electrical cords which had been hung down and across the room, and numerous growing mediums for a hydroponic set up. Contained within bedroom 3 was a partitioned wall with another locked door. Having also located the key to this door in the kitchen pantry, police entered and found a purpose-built hydroponic set up. There were no cannabis plants being grown at the time. But the room contained black pots with soil, and drying racks hanging from the ceiling containing bags of cannabis head. The following items were seized from that room: 14 ballast boxes; nine light globes and light shades; cannabis on a drying rack in five large bags, each containing between 433 grams and 443 grams; cannabis on a drying rack in eight large bags, seven containing between 441 grams and 493 grams and one containing 241 grams; four further bags, each containing a significant quantity of moist, mouldy and decomposing cannabis plant material and stem, with a couple of these bags also containing some rubbish;[1] and a large cannabis grinder.[1] There was no charge in relation to the cannabis material in these bags. Police also gave evidence that within the laundry of the Morphett Vale premises they located a small black tent containing six juvenile cannabis plants being grown under a light. They also located a bucket containing 400 grams of cannabis in two bags. In the garage, police located various items, including a bucket containing 690 grams of cannabis; a further bucket containing approximately a kilogram of cannabis; six resealable plastic bags (one containing 3.9 grams of cannabis, one containing 5.3 grams of cannabis, and the remaining four containing a total of 53.8 grams of cannabis resin); five further resealable bags on a bench containing between 0.6 grams and 10.9 grams of cannabis material of varying quality; a small bag in a drawer containing less than 0.6 grams of cannabis plant material and 21 cannabis seeds; and a bong in a drawer.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s contention must be rejected. Her Honour’s description of the second use of the good character evidence was orthodox and appropriate. To the extent that some of the authorities have used the language of probability or improbability in describing the use that may be made of good character they have not done so in a sense that is intended to convey any different or greater relevance or use than described by the judge.Conclusion None of the appellant’s proposed grounds of appeal against conviction has been made out. We grant permission to appeal, but dismiss the appeal against conviction.SENTENCE APPEAL The appellant seeks permission to appeal his sentence on the two grounds identified at the outset of these reasons. It is appropriate to commence by setting out the detail of the sentence imposed, the relevant sentencing considerations, and the key aspects of the judge’s sentencing remarks, before then addressing the appellant’s submissions in support of these two grounds.The sentence imposed The appellant fell to be sentenced for four offences:·trafficking in a large commercial quantity of a controlled drug,[8] with a maximum penalty of a fine of $1 million or imprisonment for life or both;·cultivating controlled plants,[9] with a maximum penalty of a fine of $2,000 or imprisonment for two years or both; ·diverting electricity,[10] with a maximum penalty of a fine of $20,000 or imprisonment for two years or both; and·possessing prescribed equipment,[11] with a maximum penalty of a fine of $10,000 or imprisonment for two years or both.[8] Contrary to s 32(1) of the CSA.[9] Contrary to ss 33K(1)(b), 33K(1)(a)(ii) of the CSA.[10] Contrary to s 85(1)(a) of the Electricity Act.[11] Contrary to s 33LA(a)(ii) of the CSA. As described earlier in these reasons, the appellant was convicted of the first of these offences following a trial by judge alone. As to the second offence, the appellant had pleaded guilty to this offence shortly before the commencement of the trial, but this was not accepted by the prosecution in satisfaction of the more serious charge of cultivating controlled plants for sale. Following the appellant’s acquittal of that more serious charge, he was convicted on his plea of guilty to the lesser charge. The appellant also pleaded guilty to the third and fourth offences listed above. For the offence of cultivating controlled plants, the judge imposed a conviction and a fine of $500, reduced by five per cent on account of his guilty plea, to $475. For the remaining offences, the judge imposed a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA). However, she identified the following notional sentences:·for trafficking in a large commercial quantity of a controlled drug, imprisonment for three years and 10 months; and·for each of the offences of diverting electricity and possessing prescribed equipment, imprisonment for two months, but reduced on account of the appellant’s guilty pleas to imprisonment for one month and 22 days, and made wholly concurrent with the sentence for the trafficking offence.·The judge considered that the appellant’s personal circumstances, lack of relevant criminal history and good prospects of rehabilitation justified some leniency in setting the non-parole period. Her Honour fixed a non-parole period of one year and 11 months, being 50 per cent of the length of the head sentence.·The judge did not accept that exceptional circumstances existed to permit the sentence to be suspended. Home detention was not an available sentencing option.Circumstances of the offending

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.