Attorney-General v Blakers[1997] QCA 79

COURT OF APPEAL

MACROSSAN CJ

FITZGERALD P

BYRNE J

BRISBANE

DATE 24/02/97

JUDGMENT

BYRNE J:  The Attorney-General appeals against sentences imposed in respect of production of cannabis sativa in a quantity exceeding the quantity specified in the Third Schedule of the Drugs Misuse Act 1986 and possession of cannabis.  The respondent had pleaded guilty to the offences. 

The production charge related to plants and seedlings found growing in an underground bunker at the respondent's house near Coolum.  The possession charge related to a small quantity of seeds found in a bedroom dresser.  The respondent, who is a man in his late 30s with no prior convictions, was ordered to perform 240 hours community service and awarded three years probation.

The nature of the operation which the respondent established for the production of the cannabis should be mentioned.  He lived in a three-storey dwelling.  The house was also occupied by his wife but the respondent lived separately and apart from her, occupying the lowest floor.  There was a secret doorway hidden behind built-in drawers in the walk-in wardrobe in his part of the house.  Once the drawers were removed the police who came to the premises found a spring-loaded panel.  The panel was pushed away to reveal a heavy, soundproof door which opened into an underground bunker used for growing the cannabis.

The bunker was divided into two sections.  The first contained 140 seedlings varying in height between 12 and 40 centimetres.  The plants had a combined weight of less than 600 grams.  The second area was the main growing room.  It was in a raised platform.  There were 84 mature female plants growing at a height of about 1.5 metres.  When wet, they weighed more than 28 kilograms.  The plants were in individual pots each watered by its own pipe which ran from a central irrigation system.  The water was piped into the bunker from above ground then automatically mixed with fertilisers. 

Beneath the plants was a sophisticated drainage system which filtered and recycled excess water.  Above the plants were lights which were attached to the ceiling by ropes and pulleys so that they could be raised as the plants grew.  An air-conditioning unit ensured that the temperature did not become too high.  Air circulation was promoted by seven fans bolted upside down to the ceiling.  Stale air was removed using exhaust fans with electronic timers.  The quantity of carbon dioxide in the atmosphere was boosted by means of a cylinder linked to a system of overhead pipes and an electronic timer.  To avoid a suspiciously high electricity account, the respondent had diverted power to the bunker around his power meter. 

Establishing the production facility involved considerable effort on the part of the respondent and the expenditure of about $8,500.  When interviewed, the day after the police came to his property, the respondent said that he had dug out the bunker by hand with the assistance of a jackhammer while his wife was away in Sydney.  The respondent was a builder by trade and he had purchased the necessary equipment and attended to its installation without assistance. 

He had acquired the knowledge which enabled him to cultivate the crop from literature which had been found at his house by the police.  He also said during this interview that he was not growing the plants for any commercial purpose but instead to have a supply of cannabis available for his own use for years to come.  As he said at the time, he saw it as a smoke for the rest of his life.  He was emphatic in the interview that he had no intention to sell the cannabis.

At the time the production facility was discovered, the respondent had been unemployed for about eight months.  The $8,500 which had been spent to establish the facility exhausted his savings.  His income consisted of the $600 per fortnight which he and his wife together received in social security benefits.  Mortgage repayments amounted to about $600 per month, and there were other household expenses to be met.  At the time of his arrest the respondent had no money.

In the interview with the police the respondent asserted that he had previously grown another crop which was unsuccessful.  After its failure, the plants were dumped in his yard.  He said that his intention in relation to the seedlings which were found in the bunker was to dump them in the near future because they had served their purpose.  They were, he said in effect, a reserve in case the 84 mature plants failed at a late stage of their development, as had happened with the earlier crop.  He told the police in the interview that they had probably noticed that the seedlings had not been watered for quite a few days and that they would be dying. 

Importantly, the respondent testified before the sentencing Judge.  During his evidence he spoke of the trays of seedlings.  He insisted that they had not been watered for two or three days prior to the arrival of the police and would not have survived for another 48 hours.  He described the seedlings as a backup in case anything had gone wrong and testified that he had decided not to persist with watering them because he was satisfied that he would not lose the large crop.

If what the respondent said about the seedlings were true, it tended to support his assertion that the crop was not destined for sale; for if he were intent on commercial exploitation, it is a little unlikely that he would have destroyed more than 100 apparently healthy seedlings. 

The respondent was cross-examined especially with respect to his necessitous financial circumstances at the time of his arrest and as to the effort and expenditure involved in establishing the production facility. 

Appropriately enough, the sentence was conducted on the footing that it was a material consideration whether the crop was destined for commercial exploitation or else to be stored in airtight jars where, as the respondent testified, it could be expected to last, if not forever, then at least until he consumed it.

The sentencing Judge, after referring to the expenditure and effort involved in establishing the facility, to the respondent's necessitous financial circumstances, and to the size of the crop, said that a commercial purpose was strongly suggested on the face of things.  His Honour then mentioned countervailing considerations: principally, that the respondent had given evidence which was unchallenged that he was a heavy smoker of marijuana, and that the size of the crop was conceivably consistent with his claim in evidence that he wanted to provide himself with about 20 years supply.  The Judge observed that nothing in the evidence suggested that the dried cannabis might not last so long, and His Honour drew attention to the respondent's testimony that the cannabis would keep indefinitely when dried in airtight containers. 

His Honour said that, although his bank records and receipts for the items installed in the production facility were available to the police, nothing inconsistent with his testimony concerning the financial circumstances or the expenditure was put to him in cross-examination.

His Honour expressed the opinion that the respondent's account seemed in the light of the circumstances mentioned to be improbable.  Yet there were, His Honour said, some considerations tending to support it, especially the prompt attendance at the police station where a tape-recorded account was given to which the respondent had adhered in testimony and the absence of any telling point in cross-examination to rebut the version which at first blush appeared unlikely.

There was no suggestion in the material before the sentencing Judge that the respondent had ever sold cannabis in the past.  No scales were found in the house.  Nor did there appear to be packaging or other indicia of an intention to exploit the crop commercially.  It must also be said that although the $8,500 was a substantial amount for the respondent to have expended on the enterprise, he testified to a high level of consumption of cannabis in the past.  He testified to an inheritance which it might be thought previously enabled him to spend about $400 per week on cannabis.  By the time of his arrest, however, his entire inheritance of about $100,000 had gone and if he were to attempt to maintain what he said was his earlier level of consumption of cannabis, the respondent would have had to have found another way to maintain the habit.

In other words, if, as His Honour appeared to accept, the respondent was a heavy smoker of marijuana, there were objective circumstances tending to indicate that his account was by no means glaringly improbable.  And, as I have said, if he told the truth about the seedlings that, too, tended to support his version.

It is said for the appellant that, in forming a view about the standard of proof in relation to the issue whether the crop was destined for commercial exploitation, the Judge failed to apply the reasoning in The Queen v. Nardozzi [1995] 2 QdR 87, the correctness of which we were not invited to reconsider.  His Honour referred to Nardozzi and expressed the opinion that he had to be satisfied on the balance of probabilities of the fact at issue.  He concluded that he was not in all the circumstances satisfied to the requisite "Briginshaw level of satisfaction" of a commercial purpose.

True it is that His Honour had earlier described the accused's account as "while unlikely not impossible", and the appellant fixes upon the "not impossible" reference to suggest that His Honour had misapplied the approach approved in Nardozzi.

In my opinion, however, it is clear upon a consideration of the whole of his reasons that His Honour applied the approach which commended itself to the Court in Nardozzi. 

Then it is said that an irrelevant consideration was taken into account, namely that His Honour had attached significance to an omission by the prosecution to produce bank records or documents relating to the expenditure on the equipment installed in the bunker.  This omission, so it is said, ought not to have been the basis for concluding that the respondent's account was possibly true as the source of the funds and the dates of expenditure were not challenged by nor relevant to the Crown case.

This submission appears to me to mistake the point of His Honour's reference to the bank records and other documents.  His Honour had referred to a submission on behalf of the respondent that the police had access to the bank records and records of purchases of equipment.  His Honour observed that nothing was put to the respondent during cross-examination to suggest that any of these contemporaneous records cast doubt upon what the accused had said either to the police or in his evidence. 

The reference His Honour makes to a lack of production of bank records or of records relating to the purchasing of the material must be seen in this light.  The point of the observation was that nothing in the contemporaneous records was shown to be inconsistent with the respondent's account to the police or with his testimony.  His Honour was observing that the cross-examination had not exposed any telling point or particular reason for doubting the accused's testimony.  I am not persuaded that His Honour took into account an irrelevant factor. 

More importantly, the Judge's conclusion that the prosecution had not established to the requisite extent the existence of a commercial purpose is not shown to be wrong.  In all the circumstances, in my opinion it was open to the Judge, having regard to the seriousness of the conclusion that a commercial element was involved, to conclude that the prosecution had failed to establish the existence of a commercial purpose in the production of the crop. 

I would dismiss the appeal.

THE CHIEF JUSTICE:  I agree.

THE PRESIDENT:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed.