STATE OF TASMANIA v JAMES BRIAN LASKEY 19 JUNE 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to one count of cultivating a controlled plant for sale and one count of trafficking in a controlled substance. I am also dealing with his pleas of guilty to summary offences being two charges of possessing a controlled plant or its products, and possessing a thing used for the administration of a controlled drug. These charges arose out of a police search of his home on 1 February 2019. First, police found a “grow tent” that contained 12 cannabis plants and about 815 grams of cannabis head. The plants were being grown hydroponically, and the whole set-up was behind a plaster wall in a shed detached from the main residence. This space behind the wall was accessed either through a wardrobe, or alternatively a hole in the wall. Second, in the main area of the shed police found another grow tent containing 20 cannabis seedlings and various quantities of cannabis, cannabis head, leaf and stalk. There were 2,427.6 grams of cannabis and 1,262 grams of cannabis head, the dried weight of which was 2,539.1 grams. Third, at the rear of the property behind a fence and concealed within a grove of tea-tree, was a fenced compound containing 21 cannabis plants. In a garage/office building detached from the house police found 1.8 grams of cannabis, a cannabis/tobacco cigarette and a used glass smoking device. After the search, the defendant was arrested and taken to the police station. He declined to answer any questions when interviewed. The State’s estimate of the likely yield and values of the cannabis seized are as follows. The quantity of cannabis weighing approximately 2.5 kilograms earlier referred to is said to be of excellent quality, with a value of between $22,670 and $52,898, the lower figure calculated at $250 per ounce, with the higher figure based on individual $25 deals of 1.2 grams. The estimated yield of the 12 plants is 7 ounces of cannabis head per plant, or 2,352 grams, of excellent quality. Using the same approach, the value is between $21,000 and $49,000. As to the 21 plants found outside, the estimated yield is 4,704 grams of cannabis head of excellent quality. The value range is between $42,000 and $98,000. The State says that the 20 seedlings were healthy and it is suggested that the best 12 would have been transferred into the hydroponic set-up in the not too distant future for continuous cycles. There was evidence of cloning, and the assertion is that the yields would have been equivalent to what was in the first grow tent. Police described the set-up as “excellent” and “evidenced an experienced grower”.
The defendant is 43 years old. His recorded history of offending is of no great consequence except for a conviction in July 2003 for possessing a prohibited plant for which he was fined $1,200. He lives on the property with his partner and three children, two of whom are adults. He has been self-employed since 2003, essentially as a landscape gardener. He is a long-time user of cannabis. His use has increased over the last few years which he attributes to depression and fatigue. After a frustrating period, the underlying cause of fatigue was ultimately diagnosed as severe sleep apnoea. In short, he was self-medicating for the symptoms. He started to grow cannabis and, as it was put, “got caught up in the process” and things expanded. Counsel attributed the nature of the operation and the quality of plants to the defendant’s gardening skills. However, he accepts that he was growing far more than he could have used and, of course, by his pleas, accepts that he intended to sell the cannabis he grew. I was told that the amount of 2.5 kilograms of cannabis was the product of a recent harvest of the 12 plants in the hydroponic set-up, but there was no certainty of any further yield from those plants. It appears that the defendant lives a rather modest life, and I was also told that the sale would have been to friends at low rates or amounts bartered in exchange for such things as labour. The lowest total of the asserted values is about $85,000, with the total of the averages being about $142,000. They are indicative potential values. I accept that sales would have been in larger amounts and not in the smaller individual amounts, which means that the possible return to the defendant has to be put in that light. I think it appropriate to proceed on the basis that if disposed of at the asserted values, the actual potential return in money or kind, is somewhere in the lower part of that range. I am told that the defendant accepts the seriousness of his offending and the high objective value of what he had. I am also told that the relationship with his partner has suffered as a result of his offending. I take into account the pleas of guilty. As to the indictable matters, the defendant has not sought to argue that he did not intend to sell any part of the plants, and he is entitled to some credit for facilitating the course of justice. As discussed by the majority in Llewellyn v Tasmania [2018] TASCCA 12, it is appropriate for the crime of trafficking in cannabis to routinely be punished by a sentence of imprisonment, although such sentences are usually wholly suspended in cases involving first offenders and/or small trafficking operations. However, it was said that much depends on the size and duration of the trafficking operation, and on the circumstances of the offender. It was further said that often, rather than imposing a partly suspended prison sentence, it is more appropriate to impose a wholly suspended prison sentence with a condition requiring the performance of some community service. The offending in that case can be seen as less serious than this, but Blow CJ set out a table of 40 cases involving first offenders for trafficking, and referred to the needed for consistency in sentences. I have considered that material and other sentencing data. In this case, the criminal activity involves the cultivation of a significant number of plants with the intention of selling much of the product, and being in possession of prepared cannabis with the intention of selling much of it. There is no evidence or suggestion of actual sales. Bearing in mind the defendant’s personal circumstances I have decided – with a degree of hesitation – that despite the nature and extent of this conduct it is not such that further immediate imprisonment is necessary to achieve sentencing aims, but that liberty will come at a cost.
Mr Laskey, Parliament has made cannabis an illicit substance. As a controlled substance, commercial dealings – actual or intended – have to be treated seriously. It is now recognised, and experience in this Court shows, that abuse of cannabis can produce a range of destructive effects on the physical and mental health of users. It can cause much harm in the community. It can be harmful to the individual, leading to escalation in the extent and type of drug use, and to criminal conduct. Commercial dealings in it need to be discouraged. Although you may not have been seeking to make enormous profits, you had a considerable amount of cannabis that was going to find its way into the community. You may have been intending to sell or barter with friends or acquaintances, but you would have had no control over its ultimate destination.
You are convicted of all matters and sentenced to 12 months’ imprisonment to commence on 14 June 2019, the execution of the balance of which from today is suspended on conditions that you commit no offence punishable by imprisonment for a period of two years, and that you perform 175 hours of community service.* You will have to report to a probation officer at 111 Cameron Street, Launceston by 5pm tomorrow. Any breach of the condition may lead to an application to activate the balance of the sentence, and you will need to show that it is unjust to do so. I warn you that there are many offences punishable by imprisonment, and possession of cannabis is one of them.
I order the forfeiture of items 1 to 17 inclusive on Tasmania Police Property Seizure Record 175829.
*On 24 June 2019, in accordance with s 24(2)(a) of the Sentencing Act 1997, his Honour specified the period within which the hours are to be performed, as two years.