STATE OF TASMANIA v JOHN TASMAN SMITH 27 OCTOBER 2009
COMMENTS ON PASSING SENTENCE PORTER J
You have been found guilty by a jury of trafficking in cannabis, that is having in possession for sale a number of cannabis plants. Under s385A of the Criminal Code, I am also dealing with minor offences, being one count of selling a controlled substance, one count of possessing a smoking device, and one count of using a controlled substance. You have pleaded guilty to those three matters. In February 2009 a police search of your property at Tewskbury revealed 103 plants, a fair proportion of which were in a compound at the rear of your house and two more in caged areas in a nearby forestry coop. You failed to satisfy the jury that you did not intend to sell at least part of this crop. This was not a particularly sophisticated growing operation. The plants were at various stages of maturity and, apart from the compounds, they were generally scattered about the property, with some being in pots. Having said that though, a reasonable amount of effort had been put into the growing and continued cultivation. The evidence supports the conclusion that you intended that at least part of the crop be sold in the sense of bartered or exchanged with friends and associates, rather than being sold for cash in a more clinical profit making enterprise. The charge of selling involves two to three previous instances of you providing cannabis for the partial reduction of a loan or loans from a friend or friends, or for favours done.
You are now 59 and a disability pensioner, receiving some $700 per fortnight, of which $100 per fortnight is committed. You have an acquired brain injury which was sustained some six years ago, which causes you memory and balance difficulties. You are presently single, but with a number of children, most of whom are in Melbourne. It is, I am told, your intention to move there to be closer to them. I am told that these proceedings have resulted in a determination on your part to cease all growing activities.
You have a record of some significance for offences of dishonesty and violence which led to you being imprisoned in the late 1960s and 1970s, and although you continued to offend, generally there has been an improvement in your behaviour, particularly since 1995. You have only one drug-related matter; a charge of possessing cannabis in 1982 which, having regard to its age, is to be given no real significance.
Cannabis seems to have helped you control your anxiety and difficulty in coping in social situations. Be that as it may, the drug is illegal and possession for sale, that is trafficking is a serious matter, usually calling for imprisonment, although in many cases the execution of the whole or part of the term is suspended. In particular in this case, I take into account the size of the crop, which is relatively large. As the same time, as I have noted, this was not a fully professional enterprise but the cultivation was somewhat haphazard, and what quantity and quality of yield would ultimately have been produced is a matter of some speculation. I accept that part of the crop was for personal use. I also take into account the intended mode of selling which the evidence strongly suggests. That is bartering in the ways in which I have already outlined. Although the people to whom the cannabis was, and may have been distributed, were most likely established users, there is a risk that some of it may ultimately have found its way to inexperienced persons. That is a matter over which you had no control.
On the indictment, you are convicted. I think it is appropriate that you be sentenced to four months' imprisonment, but that the execution of that be wholly suspended on condition you commit no major offence under the Misuse of Drugs Act for a period of three years. As to the three matters on the complaint, I think it is appropriate that there be an additional and separate penalty. You will be fined the sum of $350. I order the forfeiture of all of those items listed on the Drug Exhibit Sheet No 211020-09 and you will have to pay the victims of crime compensation levy of $110 within 28 days.