STATE OF TASMANIA v LYNDON IVAN BEAN 26 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Bean, has pleaded guilty to one count of trafficking in a controlled substance, namely cannabis, between 1 May 2018 and 20 November 2019. I am also dealing with his pleas of guilty to summary charges of failing to comply with prescribed ammunition storage requirements, and possession of ammunition when not the holder of an appropriate licence. All of these charges arose out of a police search of the defendant’s property at Berriedale on 20 November 2019. Located in a large space beneath the main house were three cannabis growing rooms and a propagation cabinet. The rooms contained a total of 38 cannabis plants in varying stages of development. A green shopping bag was found on the floor near the first grow room. That contained 22 snap-lock bags containing 620.3 grams of dried cannabis bud. By way of a breakdown, there were 10 cannabis plants in one room, 13 in another and 15 in the third, each room containing cannabis growing paraphernalia. Of the 22 snap-lock bags, each contained between about 26 grams and 29 grams of bud. During the search police found 30 rounds of .45 automatic pistol ammunition in a cupboard in the main bedroom and 20 assorted rounds of ammunition inside the bedside table in the same room. Five rounds of that were .32 pistol rounds, the remainder being mostly .22 calibre rounds with two shotgun shells. A further 18 shotgun shells were found in the cupboard in the spare bedroom. None of the ammunition was stored in a locked receptacle and although the holder of a category A and B firearms licence, the defendant was not permitted to have possession of the pistol ammunition.
When interviewed, the defendant made admissions. He said he sold the cannabis that he grew. He sold it by the ounce for $150 per ounce. He had been doing this for about 18 months and it took him about 3 months to grow a crop. As to the cannabis in the snap-lock bags, he said it came from “an old bloke” who was 92 years old. He did not name this person. He did not grow the cannabis that was in the bags but he had picked it up a couple of weeks previously. He said he does not pay anything for the cannabis but sells them to one other person, and gives the money back to the supplier. He sold it in one ounce bags. He had been doing this for about 18 months. He gets 20 bags every 4 months and receives $200 for selling that amount. He told police that the reason he was growing and selling cannabis was to make money to send to his son who lived in Cairns. His son was the victim of a motor vehicle accident and needed money. The defendant said that about 90% of what he made would be sent on. He does not sell to anybody other than the one recipient. As to the ammunition, he believed it would have been there for about 4½ years and, knew that it should have been stored in a safe, and knew that he was not permitted to have pistol ammunition.
As to the sales on behalf of another person, the Crown asserts that there were four occasions during the period of the indictment on which 20 bags of cannabis were sold. The total value was $16,000 with the defendant making a total of $800. The 22 bags found during the search would have fetched $4,400, with $200 going to the defendant. As to the growing and selling activities, assuming the 38 plants found all reached maturity, 152 ounces would have been produced which, depending on the individual quantities involved, had the potential to yield between $45,600 and $88,650. Further, in relation to past activities, assuming a crop takes three months to grow, and the defendant had been growing for 18 months, there were 5 crops before the one found by police. Using the same assumptions as to value, and taking a conservative approach, the defendant would, on the basis of his admissions, have made $42,750. That is the Crown’s position but there is a dispute about that figure based on a different interpretation of what the defendant told police. I was told of an admission of “about 3 cycles”. The assertion of that admission was not disputed. The Crown’s approach is a mathematical one based on the 3 month growing period and the total time involved. On all of the material, I cannot be satisfied beyond reasonable doubt of the greater amount. The lesser figure is $25,650. Given that the admission was an approximation, I think it safe to proceed on the basis of a figure of around $30,000.
The defendant is now 69. Apart from a rather lengthy record of traffic offences most of which were dealt with by infringement notices, he does have prior convictions for firearms matters. In June 2003 he was fined for failing to comply with storage requirements both of firearms and ammunition. The defendant has been married for 47 years. He receives a Disability Support Pension and his wife is his carer. She receives a pension accordingly. The defendant has a good industrial record, having been employed for 38 years with the one agricultural supply company. It was for the purposes of that employment that he had a licence enabling the possession of pistol ammunition, but that licence lapsed. He injured his back at work some 15 years ago and was later involved in a motor vehicle accident. He has physical disabilities giving rise to a chronic pain state and consequent depression for which he has been treated. His depression has deteriorated over the last three to four years. His son was seriously injured in a motor vehicle accident in 1995. That has also caused him emotional difficulties. The son went through a difficult time in relation to a damages claim. His marriage broke down. He now lives in Queensland and is in receipt of benefits. That brings things to the stated cause of the offending. The defendant’s wife had been sending money to the son who was thought not to have been receiving sufficient support, and was in financial difficulty. That in turn led to the defendant and his wife encountering financial difficulties in terms of their mortgage commitments, credit card debts, and the like. It was that which is said to have prompted the defendant to take up growing and selling cannabis as a source of income. I was told that some financial restructuring has now taken place and their financial situation has improved.
I take into account the pleas of guilty and the defendant’s personal circumstances. However, this was as the Crown’s counsel put it, a reasonably organised enterprise driven by profit. At the same time though, the profit was not used to fund an extravagant lifestyle but used for the needs of a family member. The decision to grow the cannabis, although motivated by that reason, was a very foolish one. Although the cannabis seems to have been sold to one, or at least a very small number of people, the defendant had no control over what that person or those persons did with it. As to the ammunition, I was told that the defendant had essentially forgotten that he had them but accepts that they were incorrectly stored. He had no unregistered firearms, and registered firearms he had were properly secured.
Mr Bean, Parliament has made cannabis a controlled substance. As such, commercial dealings – actual or intended – have to be treated very seriously. There are good reasons for its prohibition. It has a range of adverse effects on mental and physical health. Commercial dealings in it need to be discouraged. In your case, there have been actual sales, both of your own product and on behalf of another person over a reasonable period of time. That puts this case into a relatively serious category. Imprisonment is appropriate but having regard to your personal circumstances, including the lack of convictions for drug offences of any nature and the underlying motivation for the drug offending, I will suspend the execution of the whole of the term. On the count of trafficking in a controlled substance you are convicted and sentenced to 12 months’ imprisonment, the execution of which is wholly suspended on condition you commit no offence punishable by imprisonment for a period of 2 years. In relation to the two firearm offences, you will be fined the sum of $450 to be paid within 28 days. I order the forfeiture of the items specified in paragraph 26 of the Crown statement of facts, filed on 5 October 2020. I also order the forfeiture of the ammunition detailed in paragraphs 11(c), (d) and (e) of the Crown statement of facts. I note the Crown’s application under the Crime (Confiscation of Profits) Act 1993 for a pecuniary penalty. That amount is disputed, and I adjourn the hearing of that application to a date to be fixed. I declare that I do not regard myself as having embarked on the hearing of that application.
Mr Bean, you need to be made aware that when I say there is a condition that you commit no offence punishable by imprisonment for a period of two years, that is to be taken very literally. It really does mean any offence punishable by imprisonment and there are many. Driving whilst under the influence or driving in excess of the prescribed concentration of alcohol are such offences. They are just instances, and so you need to be careful.