Crowley v R

1. [1]

   JOHNSON J: I agree with Adamson J.

2. [2]

   ADAMSON J: The applicant seeks leave to appeal against a sentence imposed on him for the offence of cultivation of not less than the commercial quantity of a prohibited plant (cannabis) under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). On 24 August 2016 the applicant was sentenced to a term of imprisonment of three years which commenced on 24 August 2016, with a non-parole period of two years.

3. [3]

   The applicant seeks leave to appeal on the following grounds:

   1. (1)

      The sentencing judge erred in the assessment of the objective seriousness of the offence which resulted in the sentence being manifestly excessive.

   2. (2)

      The sentencing judge failed to apply the principles in The Queen v De Simoni (1981) 147 CLR 383 in finding, and taking into account, that the applicant was ready to supply cannabis if it had not already occurred.

   3. (3)

      The sentencing judge erred in finding that the applicant “blamed” his mother for his offending contrary to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

4. [4]

   Except where otherwise indicated, all references to statutory provisions in these reasons are references to the Act.

The facts

1. [5]

   The following summary of facts is taken from the court record and from the statement of agreed facts, on the basis of which the applicant was sentenced.

2. [6]

   On 19 October 2015 the police executed a search warrant at the house in Lismore where the applicant lived with his father. The applicant escorted police to the garage and admitted that he had a number of cannabis plants growing there. He indicated three separate rooms which adjoined the garage.

3. [7]

   There were 64 cannabis plants in the first room, which ranged in size from 50cm to 1m and which grew under lights, which were on. There was a water nutrient system and ventilation as well as a number of pedestal fans, which were operating. The applicant told police that he had moved home the previous year after having lived interstate. He said that his mother had previously set up the first room for cannabis cultivation many years before and that, about nine months ago, he had started to grow a number of different strains of cannabis plants in the room as a hobby. He told police that he kept the lights on for twelve hours a day.

4. [8]

   The offender took police to a second room, which he described as the “nursery”, which had a similar set up to the first room. Sixty-nine cannabis plants ranging from 10 to 20cms were growing in the nursery. The applicant told police that he had grown these plants from seeds and that the lights in the nursery were on 24 hours a day. There were also 57 cannabis cuttings in the nursery, which the applicant had struck from his mature plants and replanted.

5. [9]

   In the third room off the garage was a drying room where the applicant would dry cannabis cut from the plants in the first room. There was a clothes line on which cannabis leaf and head hung.

6. [10]

   The police found numerous clear resealable bags, containers and boxes containing cannabis leaf and head throughout the house, including in the applicant’s bedroom, a spare room, the living room and the kitchen. There was also a set of scales. Cannabis leaf located in plastic tubs and shopping bags was found to weigh 2.64kgs. The applicant accepted that he owned all of the cannabis. The applicant told police that he intended to plant the 20g of cannabis seeds which were in the fridge.

7. [11]

   On 19 October 2015 the applicant was arrested and charged with three offences: cultivating not less than the commercial quantity of cannabis (s 23(2)(a)); and two counts of possession of a prohibited drug (20g of cannabis seeds; and 2.64kgs of cannabis leaf) (s 10). The applicant was interviewed and admitted that he cultivated cannabis. He reiterated that he grew cannabis as a hobby for his personal use and denied supplying cannabis to any other person. An agronomist from the Department of Primary Industries examined the plants and found there to be 128 plants.

8. [12]

   The two counts of possession were regarded as related offences and were the subject of a certificate under s 166(1) of the Criminal Procedure Act 1986 (NSW). On 19 April 2016 the Lismore Local Court committed the applicant for sentence in the District Court for the offence of cultivation. Accordingly the related offences were transferred to the District Court for sentence. It was common ground that the applicant had pleaded guilty at the earliest available opportunity and was therefore entitled to the maximum discount of 25% on his sentence.

The sentence proceedings

1. [13]

   The Crown tendered the agreed facts (which are summarised above); the certificate under s 166(1); the applicant’s criminal history; and a pre-sentence report dated 6 June 2016 prepared by Jeremy Scott. The applicant’s only prior offence was an offence in 1999 where the applicant was found guilty of possession of a prohibited drug, for which he was fined. The Crown also tendered photographs which had been taken when the search warrant was executed.

2. [14]

   The pre-sentence report recorded that the applicant was 36 years old and had moved from the Gold Coast to Lismore some years before to help his father look after his mother who had since died. He had a nine-year old son from a previous relationship with whom he was in contact. He completed school, after which he completed a Certificate IV in Business and Marketing and worked as a real estate agent in South Eastern Queensland. At the time of the report he was studying for a Bachelor of Urban and Regional Planning at Southern Cross University, having commenced the course at the beginning of 2016.

3. [15]

   According to Mr Scott, the applicant “struggled to quantify his use” of cannabis but maintained that it was significant and was the motivation for him to commence cultivation. He also enjoyed the cultivation process, which occupied much of his “free time”. The applicant told Mr Scott that he had been involved in a motor bike accident, as a result of which he injured his knee. He used cannabis for pain relief. Mr Scott adjudged him to be at low risk of re-offending.

4. [16]

   The applicant tendered the following evidence at the sentence hearing: his mother’s death certificate (which indicated that she died on 30 October 2014); the applicant’s curriculum vitae; and his academic record at Southern Cross University.

5. [17]

   The applicant gave oral evidence at the sentence hearing that he began to smoke cannabis with his parents when he was about 12 years old. He helped his mother with the cultivation of cannabis inside the home. When he finished school in 1998, he moved out of home and worked for his girlfriend’s father in a nursery at Mullumbimby. He moved to Melbourne with his then partner, who is the mother of his son, and worked making office furniture. In 2005 he did a course in real estate in Queensland and worked as a real estate agent. According to the applicant, while he was not living at home, he used cannabis only once or twice a year when he was visiting his family.

6. [18]

   In about 2013 he returned to the family home to help his father look after his mother, who required substantial care due to Alzheimer’s dementia and a stroke. The applicant’s mother died on 30 October 2014. About two weeks later the applicant was involved in a motor cycle accident in which he injured his knee which required replacement.

7. [19]

   He started growing cannabis in February 2015, which he said was to relieve the pain of the accident as he was allergic to opiates. Much of the infrastructure was still in place from when his mother cultivated cannabis there prior to about 2005 when she became demented and had a stroke. She had not used cannabis herself in the decade before she died. Of the cannabis leaf that was found in the house, he said that it was still there from the time his mother cultivated it and that he had never cleared out the house or known of its existence. He agreed that cannabis breaks down and becomes unusable after about a year. He said that the first crop died unharvested; the second crop was 15-20 plants; and the third crop was the crop which was growing when the police executed the search warrant. In cross-examination, the applicant denied that he was supplying cannabis.

8. [20]

   Counsel for the parties were still discussing the tender of the photographs of the applicant’s home which were taken during the execution of the search warrant when he began giving oral evidence at the hearing. On the second day of the sentence hearing, the applicant gave further evidence in light of the photographs. When asked about the scale and extent of the cultivation as depicted in the photographs he said:

The remarks on sentence

1. [21]

   The sentencing judge recounted the agreed facts and the applicant’s subjective circumstances. Her Honour referred to the death of the applicant’s mother and said:

2. [22]

   Because of the significance to the grounds of her Honour’s findings about the circumstances of the cultivation it is necessary to set them out in full. The sentencing judge said:

The parties’ submissions

1. [23]

   Ms Hawkins, who appeared on behalf of the applicant, submitted that the sentencing judge ought to have assessed the objective seriousness of the offence as “at the lowest end of the spectrum” as the legislation relating to enhanced means of cultivation was directed at “hydroponic and aeroponic cultivation with organised crime links in elaborate setups for higher yield commercial profits in the black economy”. She referred to the Second Reading Speech for the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill which was introduced into the Parliament on 25 May 2006. She submitted that the applicant’s offending conduct was wholly removed from this scenario since it involved merely lights, soil and pot plants with pedestal fans.

2. [24]

   It was accepted on behalf of the applicant that he was guilty of the offence against s 25(2)(a) because of the indoor setting and the lights. However, Ms Hawkins characterised the applicant’s conduct as the cultivation of “cannabis plants for personal use in soil under artificial lights in a home garage with a few pedestal fans” and submitted that the objective seriousness of this offence “could not have been much lower”. She contended that the sentencing judge’s finding that the system was “sophisticated” revealed error when the evidence established that it was a “rudimentary set-up”.

3. [25]

   Ms Hawkins also criticised her Honour for using the quantity of plants to conclude that the seriousness was above mid-range and referred to Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [73] (Gaudron, Gummow and Hayne JJ). She submitted that of the 128 plants, about half were less than a metre tall and the other half were “very immature”. She relied on R v Seman (Court of Criminal Appeal (NSW), 15 May 1992, unrep per Wood, Allen and Abadee JJ).

4. [26]

   The applicant submitted that it was for the Crown to prove that there had been actual supply and it had failed to discharge the onus of proof. Ms Hawkins argued that her Honour was in error in taking into account apparent readiness for supply when the evidence did not support the finding.

5. [27]

   Ms Hawkins submitted that her Honour’s remarks about the applicant’s readiness to supply fell foul of the following principle in The Queen v De Simoni at 389, per Gibbs CJ (Mason and Murphy JJ agreeing):

6. [28]

   Ms Hawkins submitted that the applicant’s cannabis cultivation in the family home had “normalised” the use of cannabis for medicinal purposes and explained the applicant’s offending. She relied on Bugmy v The Queen, where the offender’s exposure from a young age to criminal behaviour and deprivation was held to be a relevant consideration in his favour on sentencing since it tended to lessen his moral culpability.

The statutory framework

1. [29]

   In order to appreciate the legislative context of the offence under s 25(2)(a) to which the applicant pleaded guilty it is necessary to set out the relevant statutory provisions.

2. [30]

   Section 3 of the Act contains the following definitions:

3. [31]

   Section 23 relevantly provides:

4. [32]

   Schedule 1 of the Act provides that, in respect of cannabis plant, the amount (in column 4) for a commercial quantity is 50 cannabis plants where the cannabis plant is “cultivated by enhanced indoor means” and otherwise, 250 cannabis plants.

5. [33]

   The maximum penalty for offences under s 23(1A) and s 23(2) is, for cannabis plants, 15 years, except for quantities not less than a large commercial quantity, where the maximum is 20 years: s 33(1)(a), (2)(b) and (3)(b).

Consideration

1. [34]

   As the applicant pleaded guilty to an offence under s 23(2)(a), he is taken to have accepted that he cultivated at least 50 cannabis plants by enhanced indoor means. According to the agreed facts, he cultivated 128 cannabis plants inside the rooms attached to the garage by the application of an artificial source of light. These matters are sufficient for the offence. It is not an element of the offence with which he was charged that such cultivation be undertaken for a commercial purpose, or that he supply the plants to anyone else.

2. [35]

   The Second Reading Speech which accompanied the bill which contained the amendments to the Act relating to cultivation by enhanced indoor means can be used as extrinsic evidence to indicate the purpose of the amending Act and thereby aid its interpretation: s 34(2)(f) of the Interpretation Act 1987 (NSW). It is of little utility in the present case. There is no doubt that the applicant’s conduct fell within s 23(2)(a), as is indicated by his plea to the offence. The number of plants, 128, only amounted to not less than a commercial quantity because they were cultivated by enhanced indoor means. The definition of “cultivation by enhanced indoor means” requires only one of the means set out in (i), (ii) and (iii) of (b) for the definition to be satisfied, once the cultivation occurs “inside a building or structure”: s 3.

3. [36]

   These grounds overlap to a considerable extent and will be dealt with together.

4. [37]

   The sentence of three years for an offence for which the maximum penalty is fifteen years indicates that, although her Honour properly characterised the applicant’s criminality as mid-range, its seriousness was not overrated in the sentence imposed. That the cultivation took place in a home which had been adapted for the purpose with pedestal fans and lighting did not lessen its criminality. The number of plants was over twice the threshold required for a commercial quantity. The Crown was not required to prove that the cultivation was for a commercial purpose. These matters were not elements of the offence under s 23(2). Nor were they aggravating factors as such, since they merely formed part of the circumstances of the offence which had to be considered by the sentencing judge along with other relevant matters and could, if established be taken into account in mitigation. The offence of supply of not less than a commercial quantity of cannabis plant was not more serious than the offence to which the applicant pleaded guilty since all offences under s 23(2) carried the same maximum penalty: R v Hooper [2004] NSWCCA 10 at [26] per James J (Howie J and Smart AJ agreeing); and SBF v The Queen (2009) 198 A Crim R 219; [2009] NSWCA 231 at [104]-[105] per Johnson J (Spigelman CJ and McClellan CJ at CL agreeing).

5. [38]

   The applicant sought to persuade the sentencing judge that he was cultivating cannabis for his personal use. Had her Honour accepted his evidence to that effect, this would have been a mitigating factor. As a mitigating factor, it had to be proved only on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. The sentencing judge was entitled not to accept the applicant’s evidence that he cultivated the cannabis as a hobby and for his own use. It was open to her Honour to be sceptical of his evidence that he did not supply the cannabis, having regard to the strong circumstantial evidence that this was the very purpose of cultivation on such a scale. It might be accepted, as Campbell J has observed in [48] below, that scales and resealable bags are common household items. However, the photographs taken in the course of the execution of the search warrant (which were tendered by the Crown and admitted without objection) show that the resealable bags of various sizes were used for the storage of cannabis head. In the context of the present case, I regard not only the number of plants, but the presence of a set of scales and resealable bags as incriminating. In addition, the cost of electricity to keep the lights and fans operating for the hours specified by the applicant to the police would have been substantial. Her Honour was entitled not to accept the applicant’s evidence which, if true, would have left him without any means to defray the cost of cultivation.

6. [39]

   I do not regard R v Seman as providing any particular assistance. In the present case, there is ample support for her Honour’s findings in the agreed facts. Moreover the finding of the sentencing judge in R v Seman that “the police have found a commercial crop of cannabis” was a conclusion which this Court found was not open to his Honour. In the present case, the fact that the number of plants constituted a “commercial quantity” was a matter of statutory definition, and not in issue, having regard to the agreed facts and the plea of guilty.

7. [40]

   Grounds 1 and 2 have not been made out.

8. [41]

   As the applicant relied on Bugmy v The Queen in support of this ground, it is appropriate to consider the circumstances of that case. The appellant’s background was characterised by alcohol abuse and violence when growing up, a lack of formal education, and a long record of convictions and incarceration including for offences of violence. He also had a history of head injury and of auditory hallucinations. The High Court considered that, where an offender’s abuse of alcohol was a reflection of the environment in which he was raised, as is the case for some offenders raised in communities characterised by alcohol abuse and alcohol-related violence, it should be taken into account as a mitigating factor on sentence. The High Court also found that it was relevant to the Court’s residual discretion to dismiss a Crown appeal against sentence on the grounds of manifest inadequacy.

9. [42]

   Ms Hawkins contended that the sentencing judge failed to take into account the applicant’s upbringing in which the use and cultivation of marijuana was normalised by his mother who smoked and cultivated it herself and adapted the garage for that purpose.

10. [43]

    I regard the applicant’s situation as wholly different from that of Mr Bugmy. Mr Bugmy was charged with offences of violence, to which he pleaded guilty. He was in custody on remand at the time of the offences, the consequences of which were that a correctional services officer lost the sight in one eye when the appellant threw a ball from a pool table at the officer. The appellant’s act was impulsive, violent and against his interests. By contrast, the conduct of the applicant in the present case was deliberate, planned, and, potentially, profitable. It required substantial investment in infrastructure (some of which was already in place) and electricity. It also required considerable time and skill to grow seedlings from seeds, and plants from cuttings struck from mature plants. It is not a mitigating factor that the applicant’s parents smoked cannabis when the offence to which he pleaded guilty was the cultivation of not less than a commercial quantity of cannabis. The applicant’s education and employment history showed that, whatever part his parents’ drug-taking had played in his childhood, he was able to make his way in the world, gain an education and work as a real estate agent for several years. That he was able to stop smoking cannabis when he was away from his parents’ place shows that he could control his use. At the time of the execution of the search warrant he was 36 years old and had a nine-year old son.

11. [44]

    I regard her Honour’s use of the word “blame” in the context of the applicant’s evidence in which he sought to attribute responsibility for his conduct to his mother as not only open on the evidence but also entirely apposite. The applicant’s mother died about a year before the search warrant was executed. She had been demented for a decade prior to her death and had not smoked, or cultivated, cannabis during that period. Unlike the appellant’s conduct in Bugmy v The Queen, the cultivation of a commercial quantity of cannabis is hardly an impulsive, counterproductive act to the consequences of which a person can be said to be inured as a result of childhood influences. Rather it is a skill which requires knowledge, diligence, equipment, and consistent application.

12. [45]

    Ground 3 has not been made out.

Proposed orders

1. [46]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

2. [47]

   CAMPBELL J: I agree with Adamson J that the leave to appeal should be granted and the appeal should be dismissed. Subject to what follows I respectfully agree with her Honour’s reasons.

3. [48]

   I would not regard the statement in the agreed facts, that “Also located in the house were clear resealable bags and a set of scales” as incriminating. Probably every kitchen in every home in Australia is equipped with clip-lock snack bags and kitchen scales. There is nothing in the agreed facts to indicate that these items were other in the kitchen or to put it another way were located in proximity to the cannabis stock pile the police found, other drug paraphernalia, or unaccounted for cash (there is none of this in this case). More importantly, the learned sentencing judge made no such finding. She accepted there was “no indicia that [the applicant] was selling” cannabis, despite her finding that “[the applicant] was ready to supply”. Indeed she did not say that she rejected the applicant’s evidence that the resealable bags and scales were in the kitchen and “were there for the normal sort of use that most people would use them” (Reasons p. 2).

4. [49]

   Her Honour rejected the applicant’s explanation of cultivation for personal use as she was clearly entitled to do. Correctly, however, she did not use the absence of another “rational explanation” (Reasons p. 4) as evidence of a commercial purpose. As Adamson J points out commercial purpose is not an element of the offence. The learned sentencing judge very carefully made clear that she relied upon the number of healthy plants, the sophistication of the hydroponic setup, and its apparent capacity to infer that the applicant was in a position to supply had he chosen to do so. In circumstances where she rejected the applicant’s “innocent” explanation the factors her Honour identified supported the finding she made which was clearly relevant to the question of the objective seriousness of the offending.