R v Burgess [2004] VSCA 187

7. On 15 April 2004 the applicant pleaded guilty in the County Court at Melbourne to a presentment alleging that he cultivated a narcotic plant, cannabis L, in a quantity not less than a commercial quantity at Devon Meadows on 3 March 2003. Two co-offenders, Glenda Joy Balcke and Trevor Richard Balcke pleaded guilty to cultivating cannabis L on the same day and at the same place. The appellant's offence was alleged under s.72A of the Drugs, Poisons and Controlled Substances Act 1981, for which the maximum penalty was 25 years' imprisonment, and the co-accused were charged under s.72B of the same Act, the maximum penalty under that section being 15 years' imprisonment.

10. After a lengthy plea, during which the appellant gave evidence and was cross-examined, the judge sentenced him to three years' imprisonment and ordered that two years of the sentence be suspended for two years. The two co-accused were each sentenced to a term of three months' imprisonment and her Honour ordered that each sentence be suspended for a period of 12 months. The appellant was granted leave to appeal under s.582 of the Crimes Act 1958 on 1 July 2004.

13. The appellant now relies on the grounds that -

1. The judge did not apply the correct standard of proof to circumstances aggravating the offence, namely beyond reasonable doubt;

2. Although the judge articulated that she had found that the cannabis was grown for profit beyond reasonable doubt, her analysis of the individual facts did not address each of the circumstances by a similar standard;

3. The judge took inappropriately into account as an aggravating feature the potential value of the crop if it were to be sold. Such aggravating feature was not satisfied to be within the knowledge of the appellant beyond reasonable doubt;

4. The judge took into account as aggravating facts which were inadmissible at law;

5. The judge made findings of fact that were not available to her on the evidence given at the sentencing hearing.

21. The facts giving rise to these offences, and which are taken substantially from the sentencing reasons of the judge, were as follows. On Monday 3 March 2003, the police air wing conducted surveillance by helicopter in the vicinity of the area known as Five Ways, south of Cranbourne on the South Gippsland Highway. A large number of green bushy plants were observed in the vicinity of a shed at the rear of premises at 17 Worthing Road, Five Ways. A search warrant was obtained and the Cranbourne Crime Investigation Unit went to the premises where they found the appellant. He initially denied any knowledge of what the police were there for. The police conducted a search and went to the area which had been observed on camera, at the rear of a long shed, which was subsequently found to be a pigeon breeding loft. Eighty-eight mature cannabis plants were discovered there growing in the open air, and ranging from 1.5 to 1.8 metres in height. The plants appeared to have been grown originally hydroponically, given the existence of grow rock and matting attached to the roots. A search of the pigeon racing loft discovered a hydroponic set-up with 27 established plants growing in black tubs with overhead lighting and an assortment of hydroponic equipment. These plants ranged in height from one to 1.5 metres. Further hydroponic equipment was found in the same building.

24. One of the police officers who had returned to the house and was standing near the laundry door became aware of the noise of a fan operating from behind a wooden structure next to the laundry. The appellant told the officer that the fan was just for the laundry. The police officer observed a channel running in concrete back into the house and conducted a search inside. The officer found a locked double-louvred door in the lounge room, which was forced open, revealing a staircase down to another door in the basement. Beyond that second door was a larger hydroponic crop under cultivation again with grow lights and hydroponic paraphernalia. The room contained a number of cannabis plants ranging in height up to mature plants of approximately 1.5 metres. In another basement a further hydroponic crop was discovered. This consisted of a number of smaller plants and seedlings and a heat tray was being employed to germinate seedlings. The two downstairs rooms housed a total of 118 cannabis plants. All up there appeared to be a total of 227 cannabis plants, which were removed from the property, together with a large range of hydroponic equipment.

27. Evidence was given on the plea by a forensic scientist, Mr Scott Azzopardi, who examined the plants seized. According to Mr Azzopardi the number of plants totalled 221 with ten cannabis stems and a number of unidentified plants. Mr Azzopardi's evidence was that there were 103 close to mature female plants, which constituted approximately 128 kilograms of the wet weight of 200 kilograms. This equates to an air-dried weight of approximately 32 kilograms. The judge found that there were over 217 kilograms of cannabis plant material referred to as wet weight and at least 221 plants, 103 of which would yield a dry weight of 32 kilograms of cannabis. A commercial quantity of cannabis is either 25 kilograms or 100 plants. It was therefore apparent that the quantity of cannabis located in the premises was well in excess of the threshold required to establish a commercial quantity of cannabis. A statement by Detective Senior Constable Peter Shallard which was tendered without objection contained the opinion that one kilogram of dried cannabis had a value at between $5,000 and $8,000. On this basis 32 kilograms (sold by the kilogram) would have a value between $160,000 and $256,000.

30. The appellant was interviewed by the police. During that interview he admitted that the house was owned by Glenda and Trevor Balcke and that he lived there with them. He described transferring the plants from the cellar to the outside area where they were discovered on the day of the search, and he described establishing the various hydroponic set-ups. He maintained however that he was growing the cannabis so that it would go to seed, saying that he used the seed to feed his pigeons. He described the feeding of hemp seed to the pigeons as common practice, and said that he would take off the heads, dry them, and shake the seeds out and burn the plants in the burning pit. He admitted that he had been growing the plants for about 12 months, and that he did not control the ratio of male and female plants.

33. In his evidence before the judge, the appellant said that he had been involved as a pigeon racer and fancier since 1985. He said that as at March 2003 he had approximately 900 pigeons on the property at Devon Meadows, and that he was responsible for feeding and training the pigeons. He and Trevor Balcke raced pigeons individually, but all three accused shared the expenses and he and Trevor Balcke shared in the winnings and the sales of pigeons. The most significant win had been $1,000 won in each of four races in 2002, and that the most money he had ever won over the five-month pigeon racing season had been in 1993-1994 when he won $5,000. The appellant said that he had purchased ten racing pigeons imported from Belgium and Holland and had paid between $400 and $500 for each chick. He now had forty racing birds from the Belgian stock, and it was to these birds that he said he was feeding the hemp seeds, on a daily basis, "for their supreme health and the quality of their coat". The appellant said he had had one sale of birds, conducted on 29 June 2003 when he sold 30 birds, the sale netting him $4,800. He said he had been racing and winning pigeons in the years both before and since the offence with birds not fed on hemp seeds. He was building an extension to the house at Worthing Road in which he and the co-accused were living and he was not being paid for that work. In the year 2000 the three co-accused had purchased by way of interest-only loans, two investment properties on the Gold Coast. A substantial amount was still owing on these properties, but he regarded them as a good investment as they had been tenanted at all times. The appellant was not able to give an approximation in his evidence of the quantity of seeds he had produced in the past, other than to say it was three-quarters the size of a cardboard box which was produced in exhibit. He had not told the police during the interview, or at any other stage, that they would be able to find hemp seeds which he later said in evidence he continued to keep in the garage.

36. The appellant tendered in evidence various journals and articles which make reference to hemp seed and their use for feeding racing pigeons, a number of which documents came into existence on 6 March 2002. The appellant said he obtained these articles because he discerned scepticism on the part of the police when they were interviewing him. His income tax returns which were tendered in evidence disclosed that his taxable income for the year ended June 2001 was $3,897 and for the year ended June 2002 was $8,754.

39. The judge found that the appellant was a breeder and racer of pigeons, and that this was indeed his hobby and his passion. Her Honour found that his winnings from pigeon racing were modest and that any winnings went towards expenses incurred in pursuing his hobby. She also found that he had been able to sell birds for modest amounts netting $4,800. It was accepted that he was a person of prior good character. The judge was not satisfied that the appellant was cultivating the cannabis for the production of seed to feed his pigeons and did not accept those matters as going in mitigation of the sentence to be imposed. In so doing her Honour took into account the appellant's demeanour and his answers to questions put to him in the witness box, and found that she did not regard him as truthful in the witness box. Her Honour described his answers in cross-examination as wavering, uncertain and at times evasive. Her Honour found it unbelievable that the appellant would be prepared to grow in the vicinity of 220 cannabis plants, having the full lifecycle of the plant represented in the cultivation, in order to produce an uncertain or at least unpredictable quantity of hemp seed, to feed forty birds, knowing that it was illegal to do so and knowing that there were legally available alternative feeds for pigeons.

42. In this Court Mr Holdenson for the appellant argued that the judge's reasoning in rejecting the appellant's account was flawed. He submitted that her Honour had wrongly permitted the prosecutor to cross-examine the appellant, first, as to what answers he had given to police questioning during the search of his premises, secondly, as to the failure to mention the seed box in the spare bedroom after he had been cautioned and, thirdly, in not stating in his taxation returns that his occupation was "pigeon racer and breeder". There was no objection by the appellant's counsel to the cross-examination on the second and third of these matters. As to the first matter the prosecutor put to the appellant that he had lied to the police who were there to execute the search warrant for cannabis. The alleged lies included that when the police said they were there to search for cannabis, the appellant said he did not know what they were talking about, and had failed to tell them of the cannabis crops in the underground rooms of the house. Mr Holdenson argued that these questions were inadmissible by reason of s.464H(1) of the Crimes Act 1958.

45. When the appellant was cross-examined about the statements made during the execution of the search warrant, objection was indeed taken by his counsel, but no mention was made of s.464H. Counsel put it that the appellant was being asked questions relating to "a split second conversation which was conducted without tape-recording, without warning and I really question its admissibility, if not relevance". He said the prosecutor was "relying on a totally impermissible bit of passage in the record of interview to prove some point".

48. There is, I think, no substance in this objection. If reference had been made during argument on the objection to s.464H(1), a question would have arisen as to whether the prosecutor should be allowed to justify and continue this line of questioning under s.464H(2). As it was, the prosecutor was only able to pursue the issues raised briefly, and only to the extent that the appellant admitted in the witness box that he had made a statement, or failed to disclose information to the police during their search. Be that as it may, this was but a short interlude in a prolonged cross-examination. Having read the whole of it, I think that there was an abundance of material which would have entitled the judge to conclude that the appellant was wavering, uncertain and evasive and to say that she did not regard him as truthful in the witness box. No error has in my view been shown in the judge's reasons for rejecting the appellant's account.

51. The Crown contended during the plea that her Honour should have due regard to the size and yield of the cannabis, the fact that it was growing at various locations on the property, that the various crops represented the lifecycle of the cannabis plant, that there was a preponderance of female plants and an absence of discernible male plants, and the lack of seed. The crops were being grown in places that were not readily detectible and at least in one instance behind locked doors. The Crown pointed to the fact that the appellant was a person of modest means with no significant income and yet there had been a large investment in the set-up of the equipment required to grow the cannabis crops. For example, during cross-examination the appellant had admitted that the four lights in the cellar alone had cost "$2000 or $3000 each". It was submitted that these were matters which should satisfy the judge beyond reasonable doubt that the cannabis was being grown for profit.

54. Her Honour duly found that the true nature of the appellant's enterprise was indeed a commercial one, and accepted that the sheer volume of the crop and its potential value suggested the true nature of the enterprise.

57. In this Court it was submitted by Mr Holdenson that it was not open to the judge to reason in the manner set out. He relied on the answers given by the appellant in his record of interview in which he unequivocally and persistently stated that his sole purpose of growing the cannabis was to produce seed to supplement the diet of his pigeons, and his sworn evidence to the same effect. Extensive literature had been tendered on the plea which confirmed the use of hemp seed as a food supplement, an assertion which was supported by a statement in the depositions made by Dr Colin Walker, the honorary veterinary surgeon of the Victorian Homing Association that more than 25 years ago hemp seed had been used in commercially available seed mixes for birds. Dr Walker, however, also stated that "With the changing legal status of hemp and the development of other grains, such as canola which fulfil a similar nutrient role, together with the risk of over-supplementation of hemp possibly inducing unwanted narcotic effects, hemp has fallen from favour." Mr Holdenson relied on the evidence of Mr Azzopardi and also on evidence given by Dr Andrew Drinnan, an associate professor in the School of Botany in the University of Melbourne. It was put that there was no evidence whatsoever of the indicia of either trafficking or any type of commercial operation, namely scales for weighing, a drying room, packaging materials, documentation or notes recording or relating to trading, or any suggestion that electricity had been stolen.

60. Mr Holdenson's case was that the rejection of the appellant's explanation could not provide any evidence to the contrary of the content of that explanation, nor provide any evidence in support of the Crown's contention. The position was, he argued, no different from if no explanation whatever had been given by the appellant. Furthermore, it was submitted that the judge had erred in using the rejection of the appellant's explanation in support of the finding that his purpose in cultivating the cannabis was for profit. Her Honour had, it was submitted, been in error in disregarding the other evidence which had been put before her on the plea and which is set out above. He submitted that the volume and potential yield and value of the crop were not themselves capable of sustaining the finding to the standard of beyond reasonable doubt that the appellant's purpose in cultivating the cannabis was for profit. He argued that the judge should have found, on the balance of probabilities, that the appellant grew the cannabis for the sole purpose of obtaining seeds to be fed to his pigeons and that on this basis the judge should have imposed a wholly suspended sentence of imprisonment. This was a case, so the argument ran, where it was simply not open to the sentencing judge to make any finding as to the appellant's purpose. In these circumstances he argued that this Court should set aside the findings made by the judge and instead find that the appellant grew the cannabis solely to obtain seeds to be fed to his pigeons.

63. During the plea, both counsel and the judge accepted, I think, that quite different sentencing considerations would apply, depending upon whether her Honour found that the marijuana was being cultivated to provide seed for the appellant's pigeons, as against for purposes of trafficking. It was not in question that where the purpose of cultivation might be described as "innocent" such as for the purpose of feeding pigeons, this would mitigate the criminal conduct and lead to the imposition of a lesser sentence, and that such a factor should be proven by the offender on the balance of probabilities.

66. The argument made by Mr Holdenson is, in effect, that two equally weighted explanations were put before the judge, and that the rejection of the appellant's evidence did not permit the judge to accept as proved beyond reasonable doubt the Crown's version. This was a case, Mr Holdenson argued, where the evidence was such that the sentencing judge was simply unable to make a finding as to the purpose of the cultivation.

69. There was before the sentencing judge evidence that the appellant was responsible for growing 227 marijuana plants in a number of different locations on the premises he occupied with the co-accused. These plants were capable of producing a very large quantity of marijuana, with a potential value well in excess of one hundred thousand dollars. The crop was being cultivated in different locations, with hydroponic set-ups, and varying levels of maturity of the crops suggesting an ongoing cultivation. Two of the locations involved were behind locked doors in concealment. The appellant, when visited by police, engaged in further deceptive conduct and lied about the existence of the crop growing under ground in the cellar. The appellant's financial position was modest, he had, according to his tax returns, virtually no income, and he was, although a builder, receiving little or no income from this occupation. The equipment and hydroponic set-up required to cultivate the marijuana crop clearly showed that a significant investment was involved in the establishment of the operation.

72. In all these circumstances it was certainly open in my view for the judge, if no other evidence had been available, to be satisfied beyond reasonable doubt that the appellant was engaged in the cultivation of marijuana plants for the purpose of trafficking.

75. The appellant, however, both in his record of interview and in evidence vigorously maintained that the crop was cultivated to produce hemp seed for feeding his racing pigeons. It is true, as Mr Holdenson submits, that the appellant was indeed the owner of a large number of pigeons, some forty of which he claimed to be racing pigeons and which he said he intended to give hemp seed to improve their racing potential. He was able to produce some literature which supports the view that hemp seed may be used as a food supplement for racing pigeons. At the same time the appellant had only recently begun the production of marijuana, and he had fed his pigeons, including the racing pigeons, both before and after he said he had hemp seed available for them, on other seeds. It was also in evidence that the appellant had no trappings of wealth or high earnings (although he was part owner of two Gold Coast apartments). The judge had the benefit of hearing the appellant give evidence on oath at length. It is obvious that he did not impress her Honour as a witness of truth. As I have said, her Honour did not regard him as truthful, found him at times evasive, and did not accept that he was cultivating the cannabis for the production of seed to feed his pigeons. In my opinion, the judge was perfectly entitled in all the circumstances to find the appellant's enterprise was a commercial one. Even if the rejection of the appellant's explanation could not provide any evidence to the contrary of the content of that explanation, nor provide any evidence in support of the Crown contention, the judge was then left with sufficient evidence to entitle her Honour to conclude beyond reasonable doubt that the appellant was engaged in the cultivation of marijuana plants for the purposes of trafficking. Her Honour's sentencing reasons were very carefully expressed and, with respect, entirely free from error. I would reject the particular complaint that her Honour engaged in a two-stage procedure, rather than considering the evidence as a whole. 24 It follows that I reject each of the appellant's grounds, and I would dismiss the appeal.

80. I agree with Charles, J.A., for the reasons which his Honour gives, that the appeal should be dismissed.