Reported Decision : 141 A Crim R 302 New South Wales Court of Criminal Appeal CITATION : REGINA v Jason Marty DOPSON [2003] NSWCCA 99 HEARING DATE(S) : 10/4/03 JUDGMENT DATE : 10 April 2003 JUDGMENT OF : Hidden J at 1; Bell J at 2; Buddin J at 36 DECISION : Appeal dismissed Criminal Appeal Act 1912 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Devries v Australian National Railways Commission [1992-1993] 177 CLR 472 Dinsdale v The Queen (2000) HCA 54; 202 CLR 321 R v Baker (2000) NSW CCA 85 R v Boundy [2002] NSW CCA 319 CASES CITED : R v Galway (unreported) NSW CCA 19 August 1998 R v JCE (2000) 120 A Crim R 18 R v Seman (unreported) NSW CCA, 12 May 1992 R v Zamagias (2002) NSW CCA 17 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 PARTIES : REGINA (Appellant) Jason Marty DOPSON (Respondent) FILE NUMBER(S) : CCA 60019/03 COUNSEL : PJP Power SC (Crown) CB Craigie SC (Respondent) SOLICITORS : SE O'Connor Nicola Velcic & Associates (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0118 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60019/03 HIDDEN J BELL J BUDDIN J THURSDAY 10 April 2003 REGINA v Jason Marty DOPSON Judgment 1 HIDDEN J: I will ask Justice Bell to deliver the first judgment. 2 BELL J: This is an appeal by the Director of Public Prosecutions brought pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour Judge Graham in the Queanbeyan District Court on 23 October 2002. 3 The respondent pleaded guilty to a single count on indictment charging him with the cultivation of a prohibited plant, cannabis, in an amount not less than the commercial quantity (501 plants). The offence occurred on 1 November 2001 at Murrumbateman. It is an offence provided by s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 ("the DMTA") and carries a maximum penalty of imprisonment for fifteen years. Judge Graham was asked to take into account a further four offences set out in a form 1 document pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) . The form 1 offences were in each case charged under s 10(1) of the DMTA and related to the respondent's possession of cannabis leaf and seeds on the date of his arrest on the principal count. 4 The respondent pleaded guilty in the Local Court. There was a technical deficiency in the s 51A committal for sentence document which explains why he was arraigned on indictment before Judge Graham. His Honour accepted that the respondent had pleaded guilty at the earliest opportunity. 5 The respondent was sentenced to a term of two years imprisonment to date from 23 October 2002. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") Judge Graham directed that the execution of the sentence be suspended and that the respondent be released from custody on condition that he enter into a good behaviour bond for the term of the sentence. The bond was subject to the following conditions: "1. To appear before the Court if called upon to do so at any time; 2. To be of good behaviour; 3. To advise the Registrar of the Court of any change of residential address; 4. To accept the supervision of the Probation and Parole Service and to obey all reasonable directions of that Service, including directions as to (a) treatment and/or counselling for substance abuse including submission to urine analysis, and (b) attendance at a relapse prevention program." 6 By notice dated 3 February 2003 the Director appealed against that sentence on the ground that it was manifestly inadequate. We were informed that the notice of appeal was served on the respondent the following day. There was an interval of almost sixteen weeks between the date of sentence and the date upon which the respondent was advised of the appeal. No satisfactory explanation has been offered for that delay. This court has expressed concern about delay in the prosecution of Crown appeals on a number of occasions. The vice involved in delay will frequently be more pointed in a case in which the Crown seeks to substitute a sentence of full-time custody for one that is suspended; R v. Boundy [2002] NSW CCA 319. This is such a case. The period of delay is greater than that which attracted criticism in Boundy. The respondent was not advised by letter that the Crown were considering an appeal. In the view I take of the appeal it is not necessary to give further consideration to the consequences of the delay. 7 Judge Graham sentenced the respondent upon an acceptance of the evidenced that his cultivation of the cannabis plants was undertaken with a view to personal, as distinct from commercial, use. In the Crown's submission it was an error for his Honour to make this finding of fact. In light of this challenge it is necessary to refer to the evidence that was before Judge Graham and to his Honour's findings upon it in some detail. 8 The Crown tendered the police brief of evidence. This included a "Facts Sheet" prepared by Senior Constable Nicholson which, relevantly, stated: "Following the receipt of information from AFP drug team police, on 1 November 2001, Goulburn Drug Squad/Yass Detectives attended the premises of the defendant at 5 Woodleigh Drive, Murrumbateman, where a search warrant was executed. In a garage at the premises police located a hydroponics plantation where police located 702 cannabis plants. The plants have subsequently been examined by an agronomist who has certified that 521 were cannabis plants. The remaining 181 plants had insufficient roots and leaves to identify as being the prohibited plant. Also located in the garage were two separate quantities of cannabis which had been laid out for drying. Two glass jars were suspected to contain finely chopped cannabis leaf and one glass jar suspected of containing cannabis seeds. A large amount of hydroponic equipment, including lights, electrical equipment and water piping which was seized by police. In the residence of the premises, police located a manual, two books and various documentation in relation to the cultivation of cannabis. Three small clear plastic resealable plastic bags which police suspect of containing cannabis leaf were located in the defendant's bedroom. On 5 November 2001 the defendant attended Queanbeyan police station, in company with his solicitor, Jason Parkinson. He was formally placed in custody. The defendant made a handwritten statement in which he admitted the sole cultivation of all the cannabis plants. He stated that he had a cannabis problem and asserted that the cannabis was for his own personal use. He participated in an electronic interview in which he adopted the handwritten statement and, on legal advice, declined to answer any further questions. He was then charged. The potential street value for the 720 cannabis plants was $1.4 million. The potential estimated street value for 521 cannabis plants is $1,042,000." 9 The original of the handwritten statement made by the respondent did not form part of the appeal papers. To the extent that the copy is legible it was in these terms: "My name is Jason Dopson and I live at 5 Woodleigh Drive, Murrumbateman. I've been told by Detective Nicholson that police raid my house and found 560 dope plants. I have seen a photo which shows the set up that I had in the shed. The pipes and pots were all of ... and unused pots the lights came from ... (It) was all for my own use. I didn't believe that I grew that many plants. I have cannabis problem. I have previously sought help for my addiction. I have never sold or supplied to anyone. Inside the house I had some pot in a metal ... tin which I had hid in my brother's cupboard because of my ... coming out. In the ... was scales to which I kept an eye on how much I was smoking. There was also a small ... in the tin. All the pots in the house was mine. I am very sorry for what I have done. I realise that I have a big problem with my addiction to cannabis." 10 A pre-sentence report prepared by Mieke Barton, a Probation and Parole Officer, dated 3 October 2002 was tendered in the Crown case. Under the heading "Factors relating to offender" Ms Barton reported that the respondent's parents had moved to Western Australia for a period of eighteen months as part of a mission for the Morman Church. The respondent was living at the family home in their absence. He told Ms Barton that it had been his intention to make use of their absence in order to grow as much cannabis as he could. It was his account that he wanted an ample supply of the drug since he had been addicted to it for the past seventeen years. Ms Barton reported that the respondent had been adamant that the cannabis was cultivated for his own use and not for monetary gain. She was cross-examined upon her report. She said that she had found the respondent to be "A very honest and open client" (Transcript 23 October 2002 at page 4). 11 The respondent gave evidence. He said that he started using cannabis at the age of thirteen years. By the time he was seventeen he was using cannabis on a more or less daily basis. At the time of his arrest he was consuming one and a half to two ounces of cannabis per week. In the course of evidence in chief he estimated that he this quantity was costing him "Anywhere from $300 to $500 a week." (Transcript 23 October 2002 at page 6.) He was working as a landscaper earning an average $400 a week. He was paying $85 per week in child support. He was living at his parents' home and paying $50 per week board. 12 In cross-examination the respondent said at the time of his arrest the purchase price of an ounce of cannabis ranged between $300 and $400. The cross-examiner put to him that the habit that he described was a "$700 to $800 a week habit" (23/10/02 at 12). He agreed with that proposition. He said that his only reason for cultivating the cannabis plants had been to save himself the cost of buying the drug. 13 The respondent took issue with the estimate of the street value of the cannabis plants contained in the statement of facts. He said that he would expect to obtain 1 to 1 ½ ounces of useable cannabis from a mature plant. He agreed that upon this assumption the potential yield of the plants that he was cultivating was well over one kilogram. He also agreed with the proposition that such an amount would provide for his needs for a period in excess of 500 weeks. It was put to him that he was not truthful in his assertion that the cannabis was for his personal use. He maintained that it was. 14 The respondent agreed that he had set up the garage in which the plants were being grown with tubing connected to a forty-four gallon drum through which water ran twenty-four hours a day. He had installed lights and an exhaust fan connected to timers. Reflective insulation material was draped around the plants. A number of empty packing boxes had been used to create an artificial ceiling. The respondent said that he had followed suggestions for the cultivation of cannabis that he obtained from the Internet. 15 The respondent's father, Harold Dopson, gave evidence on his son's behalf. The effect of his evidence was that the respondent had undergone a number of changes since being charged with the offence. He appeared to be brighter and more settled in his plans for life. Mr Dopson senior had been aware that his son had some unidentified problem before the family moved to Western Australia. The respondent's mother also gave evidence on his behalf. She confirmed that the respondent appeared happier and more positive about his future in the period following his arrest. 16 A number of references were tendered in the respondent's case together with a report from the Lyndon House community confirming that the respondent had undertaken a course of drug and alcohol rehabilitation. 17 I turn now to the factual findings that Judge Graham made. His Honour relied, for the facts of the offences, upon the statement of facts to which I have referred. He noted the conflict between the police estimate of the value of the plants and the respondent's evidence. He approached the matter upon the basis that: "On either view of it, therefore, the potential value of the cannabis ultimately obtained from these plants was likely to be in the range of $400,000 to $1,000,000." 18 Judge Graham noted the Crown's submission that the inference to be drawn was that the respondent was engaged in growing cannabis for commercial exploitation. His Honour referred to the respondent's acknowledgment that he had established a sophisticated set up for the cultivation and to his evidence that he sought to take advantage of his parents' absence to grow as much cannabis as was possible. His Honour went on to say this: "The explanation which he has offered would itself, if accepted, provide some justification for the number of plants and the complexity of the system, given his desire to put himself in a position to have as large a supply of cannabis as possible available for his own use within that time frame." 19 Next Judge Graham dealt with the Crown's submission that an inference that the enterprise was a commercial one was to be drawn by reference to the finding of a quantity of resealable plastic bags in the premises. His Honour noted that the respondent had offered no particular explanation in relation to the bags. Equally, he observed that the respondent had not been cross-examined on this topic. Judge Graham accepted that bags of this type are commonly used in the course of commercial drug dealing. While accepting that the resealable bags might generated suspicion his Honour did not consider the finding of them to unequivocally point to a commercial motive. In this regard he took into account that people keeping cannabis for personal use may store it in resealable plastic bags. 20 A matter which Judge Graham considered to be of greater potential significance was the finding of a small set of scales at the premises. His Honour said this: "The possession of the scales, particularly in connection with premises where so many plants were being grown hydroponically and where there were also resealable plastic bags, would itself attract some suspicion that there was a proposed commercial element to this cultivation. But the offender's explanation in that handwritten statement has not been challenged by any direct questioning on that topic. The offender has impressed the Probation Officer as having been frank with her about matters connected with his cannabis usage, and, in the circumstances, notwithstanding the very large number of plants involved and the hydroponic system used for their cultivation, there seems to be no valid reason for rejecting the explanation offered by the offender." 21 Judge Graham went on to review the respondent's history of cannabis use. In this respect the respondent's criminal record, including as it did a conviction before the ACT Magistrate's Court in November 1992 for the cultivation and possession of cannabis, and subsequent convictions in April 1996 and July 1997, again before the ACT Magistrate's Court for cultivation of a prohibited plant, and the cultivation and possession of cannabis, were taken by the Judge to be consistent with a finding that the respondent was a person with a longstanding and expensive cannabis habit. In his Honour's view this provided a substantial motive for the respondent to find another way of providing for his drug needs. Notwithstanding the number of plants involved his Honour accepted that the respondent's motive was as he stated in his statement and in evidence. In coming to this conclusion Judge Graham took into account that, on the respondent's own assessment of the total yield, an arithmetic calculation would suggest a supply that would have lasted ten to twelve years. His Honour went on to say: "But given his description of the way in which the cultivation was carried out it is unduly simplistic in the end to look simply at that calculation. That is not to suggest that it is an inappropriate way of judging his claim but it is not, in my view, the only or conclusive way of doing so." 22 It is not entirely clear what his Honour had in mind when he referred to the respondent's description of the way in which the cultivation was carried out. I assume that it is a reference to the respondent's evidence in chief: "Q. Out of all the seeds that you'd sown how many did you expect to grown to maturity? A. There's probably - the way I'd explained - you take like a handful of seeds, you throw them in a tray and you get your little sprouts, out of that you'll choose your healthy looking ones, when they grow bigger you choose your females and you're probably looking at - probably 50 out of a good handful of seeds that would grow to maturity." (23/10/02 at 7) 23 The Crown contends that in light of the large number of plants, the complex hydroponic cultivation system, the possession of the resealable plastic bags and the scales that his Honour fell into error in not concluding that the respondent intended to eventually supply others with cannabis. In the Crown's submissions the respondent's evidence as to the level of his personal consumption was not worthy of belief when one compared his asserted $800.00 per week habit with his income. In written submissions the Crown contended: "In the Crown's submissions, in this case there was not sufficient evidence to support the finding that the cannabis was being grown solely for personal use." This submission is not an easy one to make good. Judge Graham's finding involved an acceptance of the evidence of the respondent. His Honour had the advantage of seeing the respondent and making an assessment of him. In Devries v. Australian National Railways Commission [1992-1993] 177 CLR 472 in their joint judgment Brennan, Gaudron and McHugh JJ at 479 observed: "More than once in recent years this Court has pointed out that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge 'has failed to use or has palpably misused his advantage' ( SS Hontestroom v. SS Sagaporack [1927] AC 37 per Lord Sumner at 47) or has acted on evidence that was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill (1985) 59 ALJR at 844.)" 24 The Crown contends that the number of plants involved in this cultivation make an acceptance of the respondent's evidence glaringly improbable. The respondent's concession in cross-examination that his habit was of the order of $700.000 to $800.00 per week, based on the arithmetic assumptions that I have set out above, does not seem to me to compel the conclusion that his evidence was to be rejected. He may have been mistaken as to the precise quantity of cannabis that he consumed on a weekly basis, but truthful in his assertion that he was addicted to cannabis and had been consuming substantial quantities of it and wished to take advantage of his parents' absence in order to cultivate as much of the drug as he was able to. His Honour, rightly, was not inclined to draw inferences adverse to the respondent about matters on which he had not been challenged in cross-examination. 25 There were a number of features of the case such as to excite suspicion that this was an enterprise carried out for commercial purposes. Judge Graham took these features into account. In weighing up the competing considerations his Honour noted that the Probation Officer had found the respondent to be frank in the account that he gave of his drug use. Ultimately his Honour concluded that the respondent's evidence was to be accepted. I am not persuaded that this is a case in which it would be right for this court to find that it was not open to his Honour to do so; cf State Rail Authority (NSW) v. Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306. 26 I turn now to the question of whether, upon an acceptance that the cultivation was carried out for personal use, the sentence is nonetheless manifestly inadequate. No error is identified by the Crown in the approach taken by Judge Graham other than that to which I have referred above. It is appropriate to bear in mind the observations of Spigelman CJ in R v. Baker (2000) NSW CCA 85, par 19: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be there. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 27 In written submissions the Crown contended that Judge Graham failed to give adequate consideration to the need for general deterrence or to the commercial value of the crop. In this respect the Crown relied on the observations of Wood J in R v. Seman (unreported) NSW CCA, 12 May 1992, p 4: "In the existing state of the law it is not an answer that the applicant was growing the plants purely for his own use; nor were the objective circumstances mitigated by the fact that the applicant had become unwilling to pay the market price for the drug which it was his custom to use. Those who elect to dabble in drugs whether as growers, users or otherwise, must expect punishment which contains a deterrent element." 28 The Crown also referred us to R v. Galway (unreported) NSW CCA 19 August 1998. In that case this Court allowed an appeal against the inadequacy of sentence. The respondent to that appeal was convicted of knowingly taking part in the cultivation of not less than the commercial quantity of cannabis plants. 520 plants were involved in that case. The respondent had been sentenced to serve 400 hours of community service. Taking into account that the respondent had completed this period of community service, the Court substituted a sentence of six months imprisonment. It is to be borne in mind that in Galway the respondent was convicted following trial. Further, it appears that evidence was led at trial of an admission made by him to his brother that he was expecting to receive $250,000 from the proceeds of the sale of the crop. The sentencing Judge approached the matter upon the basis that the respondent's profit was likely to have been closer to the sum of $43,000. Nonetheless, the matter proceeded upon an acceptance that this was a commercial operation. 29 Judge Graham took into account that, notwithstanding the respondent's criminal record to which I have referred, he mounted a favourable subjective case. He was in employment and undertaking tertiary studies. He was separated from the mother of his three children but maintained contact with them. The children spent weekends and school holidays with him. Somewhat more significant in the approach that Judge Graham took was the circumstance that the respondent had spent six months in a residential drug treatment program following his arrest. 30 His Honour said: "The number of plants involved here means that this is more than a minor instance of an offence of cultivation. It involves cultivation of more than double the number of plants required to constitute a commercial quantity, though only about half the quantity needed for the next step up in criminality, namely, the large commercial quantity. A further consideration is that, even if it was not the intention or purpose of this offender to disseminate the drugs more broadly in the community, there is always in such an operation a risk that such dissemination would occur. The temptation to dispose of a surplus of cannabis must no doubt present itself to a person who found himself in the position in which this offender anticipated he would be once he had grown as much cannabis as he could. Even if he had already rejected the notion of being a drug dealer, the temptation to furnish cannabis to friends or associates to whom he may have owed favours or for purely altruistic purposes, whilst perhaps less subject to condemnation, would nonetheless have the effect of making available to others in the community quantities of cannabis leaf." 31 Taking into account the objective seriousness of the offence Judge Graham approached the matter upon the basis that the starting point must be a significant sentence of imprisonment. 32 I do not understand the Crown to have contended that the sentence of two years was manifestly inadequate. Rather the error identified by the Crown lies in his Honour's further determination that execution of that sentence be wholly suspended. 33 Judge Graham approached the imposition of sentence in conformity with the requirements of the Sentencing Procedure Act and the decisions of this Court in cases such as R v. JCE (2000) 120 A Crim R 18; R v Zamagias (2002) NSW CCA 17. Taking into account the facts found by his Honour, together with the period spent in the residential drug treatment program and the allowance for the timely plea of guilty, I do not consider that it can be said that the decision to suspend the execution of the sentence produces a result so manifestly disproportionate to the circumstances of the offence and the offender that it can be said that Judge Graham was plainly wrong; Dinsdale v. The Queen (2000) HCA 54; 202 CLR 321. 34 For these reasons the order that I propose is that the appeal be dismissed. 35 HIDDEN J: I agree. 36 BUDDIN J: I also agree. 37 HIDDEN J: The order of the court is the appeal is dismissed. ********** Last Modified: 04/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.