R v MACPHEE [2008] NSWDC 290

New South Wales District Court

CITATION: R v MACPHEE [2008] NSWDC 290

HEARING DATE(S): December 1- 2, 2008

JUDGMENT DATE: 2 December 2008

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ at 20

DECISION: Guilty of deemed supply

CATCHWORDS: CRIMINAL LAW - particular offences - drug offences - possession - for sale or supply - Judge alone trial

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

PARTIES: Regina Michael MacPhee (Accused)

FILE NUMBER(S): 2008/00008167

COUNSEL: Mr M Fernandez (Crown) Mr B Galloway (Accused)

JUDGMENT

1. On 28 November 2008, the accused was arraigned on two counts. He pleaded guilty to the offence that, on 9 October 2007 he cultivated a commercial quantity of cannabis (56 plants). He pleaded not guilty to the offence that, on the same date he supplied cannabis leaf. The Crown alleges a "deemed supply", i.e. that the accused was in possession of 354.7g of cannabis leaf, a quantity in excess of 300 g, the "trafficable quantity" for cannabis leaf.

2. In relation to the "deemed supply" count, on 27 November 2008 the accused elected to be tried by a judge alone and DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from his barrister.

Overview

3. On 9 October 2007, police executed a search warrant at a house rented by the accused.

4. The accused showed police to a concealed room under the house that was entered via the garage. In the room, 20 substantial cannabis plants were being cultivated utilising special lighting and a drip system. In an adjoining area, there were fertilisers and pH balancing chemicals. Next to the cultivation room was an area containing ropes from which cannabis could be hung to dry. Beneath the ropes, was a plastic tarpaulin. There were cannabis remnants on the tarpaulin. Upstairs in the house, the accused showed police a cupboard in which 36 cannabis seedlings were being cultivated under lights. The 20 large plants and 36 seedings are the subject of the cultivation count.