In this article, we discuss a recent case study in which our client avoided a term of imprisonment for cultivation of cannabis in circumstances where the quantity of cannabis cultivate was four times greater than a traffickable quantity.
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Circumstances of Arrest and Early Court Proceedings
For many years our client had smoked cannabis such that it became dependent upon the drug. On the day of his arrest, the police were conducting inquiries on an unrelated matter and noticed a number of cannabis plants growing above the fence line of his property.
Upon further investigation, police established a number of mature plants were growing in our client's backyard and subsequently obtained a search warrant under the Drug, Poisons and Controlled Substances Act (1981) Vic.
The police found several mature plants in our client's backyard and a large quantity of dried cannabis inside his home.
The total quantity of cannabis (dried and green plants) amounted to 4 times the traffickable quantity for a narcotic plant (25 kilograms).
Our client was subsequently arrested and charged with:
Trafficking in a commercial quantity of a narcotic plant
Trafficking a narcotic plant
Cultivation of a commercial quantity of a narcotic plant
Cultivation of a narcotic plant
Possession of a narcotic plant
It was identified very early that if our client was to remain in custody he needed to successfully defend:
Trafficking (both the simpliciter and commercial quantity offence)
Cultivate a commercial quantity of narcotic plant (cannabis)
The offences of trafficking in a commercial quantity of cannabis and cultivation of a commercial quantity of cannabis both carry maximum penalties of 25 years imprisonment.
Both offences fall under a presumptive sentencing regime requiring the court to impose a period of imprisonment unless a narrow exception can be satisfied under section 5(2H) of the Sentencing Act 1991 (Vic).
What Made the Circumstances of This Case Unusual
Our client told police during his record of interview that he had used cannabis on a daily basis for many years and that he smoked cannabis to alleviate feelings of depression and anxiety.
Our client told police that he had not grown the cannabis for sale (a trafficking purpose) and that it was for personal use. All cannabis located at our client's property (dried and wet) was seized along with our client's phone.
The police conducted a forensic examination of our client's phone and could not find any communication that was indicative of drug trafficking.
Furthermore, there was no evidence of equipment found at a client's home that would indicate he possessed or was preparing the cannabis for sale (no deal bags, no scales, no hydroponic equipment, or electricity bypass).
There was also no evidence of betterment (proceeds of crime in the form of cash) found at our client's home.
The Substantive Issues in This Case
In a previous article, we discussed the elements pertaining to both cultivating and trafficking a drug of dependence. In this case, the relevant issues were:
Did our client traffick in narcotic plants?
Did our client intend to cultivate a commercial quantity?
Did our client cultivate for a trafficking purpose?
How the Case Proceeded
Our client's case was initially listed in the Ringwood Magistrates' Court however due to the weight of the cannabis seized from our client exceeding a commercial quantity (25 kilograms), the case was uplifted to be dealt with as a committal proceeding ultimately to be determined by the County Court as the maximum penalties applicable exceeded the jurisdictional limit of the Magistrates' Court.
The case proceeded from a filing hearing to a committal mention in the Magistrates' Court.
Despite the volume of the cannabis seized it was our position that the evidence did not support:
trafficking;
an intent to cultivate a commercial quantity of cannabis
Consequently, an offer was made to the prosecution to plead guilty to cultivating cannabis (simpliciter). This offer was refused, and the matter proceeded to a contested committal.
Prior to the contested committal, the prosecution agreed to withdraw all charges save for cultivating cannabis simpliciter.
A Summary Jurisdiction Application is Rejected by the Court
The prosecution did agree to accept our offer prior to the matter proceeding to a contested committal but did not agree to the matter being determined in the Magistrates' Court.
On the basis of aggravated drug charges (traffick simpliciter and commercial quantity and cultivate a commercial quantity) being withdrawn an application for summary jurisdiction was made pursuant to the Criminal Procedure Act 2008 (Vic).
In support of our application, we organised a comprehensive psychological assessment, together with a sustained history of drug rehabilitation by reason of attendance for drug counselling and clean drug screens. We submitted that our client on all the evidence cultivated for personal use.
Despite having compelling reasons for the case being determined in the Magistrates' Court our application was refused by the presiding Magistrate and subsequently set down for a plea in the County Court.
What Happened at the County Court Plea
Our client was arraigned on a single charge of cultivating cannabis simpliciter. He entered a plea of guilty and a critical decision for the sentencing Judge was whether our client had cultivated for a trafficking purpose or whether cultivation was for personal use.
The prosecution argued that the amount of cannabis seized (4 x traffickable quantity), that cannabis was located not only outside the house but inside 2 rooms of our client's home that indicting cultivation for trafficking as opposed to personal use.
We argued that our client's cultivation was for personal use as he stated in his initial record of interview; the very unsophisticated means of cultivation as depicted in the photographs of his home; the absence of any equipment ordinarily associated with trafficking; that there was no evidence of trafficking on the phone that was seized; and no evidence at all of betterment.
Section 72B of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) prescribes a maximum of 15 years imprisonment unless an accused can establish on the balance of probabilities that the cultivation was for a non-trafficking purpose. If an accused does successfully raise this defence, then a vastly reduced maximum of 20 penalty units or 12 months imprisonment applies.
On the basis of arguments put by counsel, and the production of persuasive plea material we were able to satisfy the sentencing Judge that our client's cultivation was for personal use.
The Outcome
Our client was not convicted and was ordered to complete a Community Correction Order for 12 months with both punitive (100 hours unpaid community work) and rehabilitative conditions (drug counselling and mental health treatment).
If you are facing a criminal charge to be heard in either the Magistrates' or County Court contact us for urgent advice. Early preparation is often key to good outcomes.
