Price v Davies [2001] WASCA 81

Price v Davies [2001] WASCA 81 - WASCA 2001 case summary — Zoe

[64]

"MR C: And then it's been camouflaged, he says he's kept it away from his children, because he didn't want them to know where it was. Obviously the other reason is that he didn't want anybody who might come to the premises or the police. He says that the plants are all for his own use. Some may have been given away, but certainly none sold, and I can say to you that in an operation like this, as you've seen it, with the photographs, you can bet your boots that the asset tracking people went through him with a fine tooth comb as to whether in the light of the fact that he has got a house, that whether any of his property could not be justified by legitimate means, and that's all been - - seems to be satisfactorily verified now.

HIS WORSHIP: Sorry, Mr C, is your client's plea on the basis - -

MR C: On the basis that some of it would be used - -

HIS WORSHIP: Yes.

MR C: - - and some of it would be shared, but none of it would have been sold. Now that's the basis - - now - -

HIS WORSHIP: well, isn't that what the prosecution are putting up that all of these - - things about money because they're saying he's a cannabis dealer? Well, do we not - - do we need another trial?

MR C: No. No, well, the purpose of challenging value, which perhaps didn't really establish what I wanted to hear was that my understanding was, and perhaps the witness is saying I haven't actually physically weighed this, but Mr Price would have said that each of these plants were producing around about 5 - - 4 or 5 ounces of material that was wet, that would produce 1-1/2 to 2 that is dry, and he was using the plants by taking the heads and actually cooking them up and using them that way. Some of it was shared with others, but none of it was sold. Now the purpose of the prosecution case I suppose is to say well look, that's not right. He had 47 plants, they're very good plants, they were obviously - - must have been for the purposes of selling, even though there's no surrounding evidence, there was no bags found, there was no scales found, there was no bong found, that's another aspect; been through the search warrant, all the items that were seized, there's no suggestion of any bong. He doesn't smoke. He tells me both his parents died of emphysema, he's never smoked, but he does consume this in this way, and it has a greater effect" (my emphasis).

[73]

"... You come before me for sentence on one count of cultivating cannabis with intent to sell or supply it to another. You've pleaded guilty at the earliest opportunity and you'll be given credit for that. I've already had a brief discussion with counsel. In my view, the fact that there are others, including family members and others that know each other charged with crops, they've been separately charged. At all times I've been asked to deal with the crops separately and I've done so, so strictly speaking parity principles do not apply, although of course it is appropriate still to maintain a degree of equality. I won't use the word 'parity', I think that really applies where people are jointly charged with same matters.

Yours has to be considered separately. You're charged by yourself. It's an elaborate set up. It has been elaborately concealed from your own family as well as outsiders. The vent system or the cover system to get down into this bunker is well concealed, professionally, or semi-professionally made, when I say professional, I mean in the manner that is not slap dash and not careless. The ventilation vents that are carefully constructed also been hidden from view. Downstairs is extremely proficient set up. Plants are in rows, the lighting is there, you have thermometer type equipment to measure humidity and temperature. You've got insecticides, you've got everything there. It's done well, it's done for a purpose, it's done to produce a good crop, and it is a good crop, as Detective Senior Sergeant Corkhill said, it's in the top per cent of hydroponic crops that he's seen.

It was clearly intended to be done on a semi-professional basis, or a professional basis, basically. In other words well done, and it does not have the - let me see, how can I put this - the appearance of a transient operation, although of course you are only being sentenced for the one crop, but I'm not naive to think it's there just - - you've set this up to do this one set of plants.

You have in your favour the fact that you have serious back injury, and as has been pointed out, at many times, cannabis has in certain circumstances, excellent pain relief qualities. That's - - the courts are not unaware of that, Parliament's not unaware of that. It's still not legal. Been trying to legalise it since Woodstock and it still hasn't happened, and it's unlikely to happen. And that's the situation that confronts us. The crop is worth a substantial amount of money, any way you look at it, whether it be sold in ounces or pounds and set out by Detective Senior Sergeant Corkhill. It's impossible, of course, as he points out, quite properly, to completely estimate what it would weigh in at, but issue has been taken, evidence has been given concerning the original prosecution assertion it was worth approximately $200,000. Detective Senior Sergeant Corkhill, whose evidence I accept, and his expertise is not questioned in any way, shape or form, has estimated it varyingly between 100 - - approximately 124,000 and 188,000. It has to be an estimation by necessity.

It's a good crop, there's no doubt about it. It's not the biggest crop we'll see, but it's one of the best laid out in my view, in terms of hydroponics. Certainly better than the usual spare bedroom affairs we see before the courts from time to time. I'm going to sentence you on the basis that it's a professional crop. Obviously a fair bit of it was for your own use, but I'm not going to accept that it was not a commercial proposition involved in there as well. You have a wife, you have a family, they're going to suffer, I appreciate that, you've got debts, but at the end of the day, while appreciating imprisonment's a sentence of last resort, I belief imprisonment is the only alternative.

I believe your personal circumstances should be reflected and can be reflected and will be reflected by making you eligible for parole. My view, the appropriate penalty for your matter, as I said, parity doesn't apply, but I think it is still appropriate to compare you to the previous gentleman who I've sentenced whose name escapes me for the minute, you mentioned it [Mr C], I know the penalty, I know the case.

MR C: Gobby?

HIS WORSHIP: Thanks, [Mr C]. Mr Gobby. He had other crops that he admitted to and there are other circumstances. I gave him 2 years. I think in your case, despite I've already said this is an expensive crop, I think the appropriate penalty is to imprison you for 18 months. And that's what I'm going to do. You'll receive 18 months imprisonment, eligible for parole, and there'll be a formal order for destruction of the crop...." (Emphasis added).

[95]

60 It is not in dispute that the appellant suffered a serious back injury in a mine accident in March 1984. In his affidavit he described how he and five other men were carrying a hydraulic ram whilst working at Kambalda. When one of the men stumbled, they all lost their balance and the hydraulic ram fell on the man who had stumbled, crushing his leg. The appellant lifted the ram off his co-worker and in so doing, ruptured discs L4, L5, S1 and S2 and suffered spinal nerve damage. He underwent spinal surgery in 1984, following which he was in hospital for two or three weeks and then underwent some three months of rehabilitation during which he had to be taught how to walk again. He returned to manual work light duties about 1985 but continued to be seriously incapacitated and suffered considerable pain. In 1986 he had to have a second major spinal operation and was told he would never be able to work again and would probably have to take pain killers to control the pain for the rest of his life. He used pain killers, usually panadeine forte until the early 1990s but had to stop because of stomach irritation. He began using steroids and doing weight training and although that had some ameliorating effect on the pain, it began to worsen again about 1998. It was late in that year that a friend who used cannabis to alleviate his own back problems, gave the appellant some cake made with cannabis butter. He found that it assisted to relieve his pain and from that time began purchasing cannabis. He was using 3 to 4 ounces per week. The cost of this was funded from cash remaining from his compensation payout of some $280,000 in October 1987. Because of the quantities he was using, purchasing cannabis in this way became too expensive and the appellant decided to grow his own at home. He researched hydroponic cultivation on the Internet and other sources. He found an article in "The West Australian" newspaper which reported that in the United States of America some States were allowing people to grow up to 48 plants for therapeutic purposes and that number would provide them with supply for approximately three months. A copy of that article was annexed to his affidavit; it is headed "Clinton declares $3 billion war on drugs". It refers to a nationwide media campaign to discourage teenagers from using drugs. The campaign began the day after Oakland County in California approved one of the most liberal medical/marijuana laws in the United States. According to the article, the law:

[118]

"At our last meeting I said, 'Put me on the stand. I would like personally' - I said, 'It's basically my arse on the line. Look, you're telling me I'm going to gaol. I want to have my 5 cents worth and tell them exactly how I used it, 'because all [Mr C] is saying is, 'The magistrate is not going to believe you used 47 plants.' I said, 'He's not because you're telling him - he thinks I'm smoking it, but if I can get my chance up there, I can explain to him my spine injuries, how I used it and why you use that much when you're cooking with it like that,' and [Mr C] just kept saying, 'No, I don't want to put you up. It's not going to be for your best interest,' and we had a bit of an argument about this and he said, 'Look, you can order me to put you up, but I'm not happy at all about doing it.' He said, 'On your best interests I'm advising you as your lawyer, don't get up there because they'll tear you to pieces. You've never been up there before,' and rah, rah, rah. I said, 'Well, I still want to have my say.' I felt like he wasn't saying what I wanted to say up there and he basically refused to do it, but in the end he said, 'I'll do it if you really want me to, but I think you're silly and you should really think about this.' You know, basically, 'I'm the lawyer. You shouldn't be doing this. I speak for you,' rah, rah, rah. I really just wanted my 2 cents heard so the magistrate actually could her (sic) about how I used it and why I had 47 plants. He's looking at all the plants and probably thinking, as you do, 'Cor, this looks a heap,' I mean that was my first crop and I didn't know how much I was going to get. I just grew it and how much I got was how much I got and I was going to go, 'Right, if I can use this much, I won't have to grow a crop again for 5 months, 4 months, or 1 month,' depending if I got hardly nothing, so that's how I wanted to do that, but I basically was shot down and told, 'No, you shouldn't do it. I'm giving you advice. You're paying me for the legal advice and I advise you not to do it.'

What, because you won't be believed?---Well, 'Because you won't be believed and you're wasting your time and then the prosecuting sergeant can - then you're up there and he can just ask you all sorts of questions and he can go to town on you, basically, and you've had it then. You'll probably get a longer sentence type,' of thing because I'm vulnerable then, putting me on the stand. That's why he didn't want to put me up there, and that's how he described it to me and I was - I mean, I just wanted the magistrate to know about my injuries and how severe they were and why I was using it and how I was using it. I just basically didn't get the chance to do that."

[131]

"I'm not sure whether he brought any documents initially apart from the bail bond. I don't think we had the statement of material facts at that stage but I certainly got that within a day or so - essentially that he'd had a pre-existing structure which had been widened or made longer or deeper or something like that - I don't think I knew how that was done - that the cannabis was being grown hydroponically in there, that the number of plants, I think, was 47 - I think I either knew that or was tod that - and that the - I knew all about how it was secured in the sense that his children couldn't get access to it. It was below the ground. It had some sort of door mechanism at the top and there was a trailer usually parked over the top and things like that. I knew all that. I didn't have any photos, or course, at that stage or anything like that so - but as to the actual cannabis itself, he told me that he - the purpose of the cannabis was essentially for his own use but some of it would have been given to friends. Now, I can go on and tell you what we discussed on that occasion because there were a number of tactical matters to be considered bearing in mind the nature of the charges.

Please do?---Well, I did raise with him a number of things. Firstly, obviously there were a number of other crops found. Now, none of those, he maintained, were anything to do with him, but nevertheless I'd be aware that the police would continue their investigations into matters. This matter - although it was under the threshold number of plants and would at first blush be able to be dealt with by a Petty Sessions magistrate, there is a power under section 9 of the Act to in actual fact have it sent up if the magistrate feels it's serious enough. I did show him a passage. I think I read him that passage or I showed him that passage in my Brown volume as part of that section of the Misuse of Drugs Act.

This is the one about committing it to a superior court?---That's right, and as soon as I hear and got the details that $25,000 was seized, that it was a sophisticated hydroponic crop and that it was a bunker under the ground, all of those matters gave me concern so I discussed with him the fact that at this stage it was before the Petty Sessions Court, a magistrate could deal with it or it could be sent up to a higher court, and obviously I was keen if the matter was going to at that stage proceed to a plea of guilty, that, if possible, it be dealt with in the court below for the obvious reasons of the lower penalties that apply. I also explained to him the process to him the process of what happens if it did go on indictment and I had a small flow chart. I think I almost show every client this small flow chart that I've done which actually shows the process that - what happens if the matter goes on indictment. It has got a diagram that schematically shows a fast-track system and also the process through the committal to the District Court and directions hearings and so on. So there was a number of things discussed at that initial meeting, those sort of concepts. Also the aspect of - to the best of my knowledge, I did discuss with him this question of the presumption. It would be a normal thing that I would do because obviously it's the bread and butter area that I practise in. I would've explained to him that it's the presumption that would be rebutted. Now, the initial idea following that discussion was that we would plead guilty at the earliest opportunity and the reason for that was in my view tactically that I thought the investigation would probably simply close up and say 'That's the end of the matter,' and it may mean that there may be no other charges that were raised against him...

... That was based, was it, on his instructions that he did indeed have an intention to supply at least some portion of the crop?---Well, I have to stress that he was absolutely strong there was never any suggestion of selling any of this stuff. Most of it - the preponderance of it was for his own use, but some would have been given away. Now, for me - that was enough for me to - and of course, I could look at what - other than what he'd told me, just looking at the circumstances...." (emphasis added).

[158]

107 Mr C was firmly of the view that the Magistrate would not for one moment accept that given what was involved in building the underground bunker, fitting it out and growing the quantity of marijuana involved, that the appellant had no intention of selling or supplying it to others. He had clearly reached the view before 19 May 2000 that there was not a Magistrate who would not convict the appellant. This belief seems to have been reinforced by an apprehension that the appellant might be drawn into charges involving close relatives, the police apparently being inclined to the implication that all were engaged in some common enterprise. That was never crystallised in the present case in any proper forensic way, but there is an impression from Mr C's evidence that it had a psychological effect on him in combination with the other factors I have mentioned. The consequence was that from the time he was given a broad description of the circumstances, Mr C believed there was no prospect the appellant could establish a defence and he focused entirely on trying to get the matter dealt with summarily at the earliest possible time. He considered that to be in the best interests of the appellant. Perhaps because of that preoccupation he failed to appreciate just what the appellant was telling him. It is even possible (if not likely) he asked the appellant whether, if a friend had asked him for some cannabis, he would have given it, to which the reply quite possibly was that he may have. Mr C certainly conceded that whatever was said by the appellant was no more precise that that, and given the way in which he expressed himself before the learned Magistrate, it seems likely that it evolved this way. But of course even had that occurred, a speculative or hypothetical answer of that vague nature, expressed in response to such a hypothetical question, would not be sufficient to constitute an actual intent to sell or supply - which is what the section requires (ignoring for the moment the effect of the presumption).

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