STATE OF TASMANIA v MICHAEL REGINALD McCULLAGH 26 JUNE 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr McCullagh, you have pleaded guilty to one count of trafficking in cannabis. You have also pleaded guilty to summary offences, in particular, cultivating, possessing and using cannabis and possessing two smoking devices.
The trafficking charge relates to a period between 1 January 2004 and 13 August 2019. During that period, you consistently grew cannabis for your own use and sold some of it to a very small group of regular customers. The principal reason for growing the cannabis was to use it yourself, and you shared some of it with your family when you were living in a relationship. You have used cannabis for most of your adult life, and you were smoking it until you were diagnosed with cancer in October 2016. You had a short break from the substance altogether then, but started growing again in mid-2017. After that you consumed the cannabis, not by smoking, but rather in the form of butter and cannabis oil. The oil was because of your belief that it would assist medicinally with respect to the side effects and symptoms associated with the cancer treatment, and you found this to be true.
You grew the cannabis hydroponically in grow rooms which were set up in sheds on your property. It seems to have been a relatively sophisticated cultivation operation, but the trafficking, that is the ongoing sale of cannabis, seems to me, although it was consistent and went over a lengthy period, to have been conducted at a very low level. Prior to 2016, you had a couple of customers only and you sold irregularly – I think you estimated to police on average one deal a week, to those customers. You were not making much money from this. When you spoke to police, you estimated that in the period since you resumed growing cannabis in 2017, you kept selling at the same rate, but only to one customer, and you may have derived a total of about $14,000 over that two-year period from the sale of cannabis. I accept that, although over it took place over a lengthy period and was consistent, the sale of cannabis was something that was in addition to your primary purpose of growing the cannabis for your own use, and was conducted at a very low level. I agree with your counsel that this is not a typical Giretti-type case where you conducted a business or a commercial operation. You will not be sentenced on that basis.
You are now 68 years of age. As I have already indicated, you have been diagnosed with cancer and you are dealing with that health situation. Your criminal record is not pristine. There are a couple of relatively old convictions relating to possessing and growing cannabis, that is your own use of cannabis. There is nothing else related to drugs. The balance are traffic offences, although those do include some drink-driving convictions, which I regard as relatively serious examples of traffic offences. You have been continuously employed for all of your adult life, until your retirement about three years ago. You have had a number of relationships. You have adult children. My understanding is that you have good relationships with those children. I accept that, on balance, apart from your illegal involvement with cannabis, you are a person of otherwise good character.
The length of time over which the trafficking has taken place is the most serious aspect, of course. Any involvement in the sale of illegal drugs to others is, in general terms, a serious matter. I make the point that the law does not distinguish between culpability involved in trafficking the illegal drug of cannabis in contrast to any other illicit drug. I should say also that cannabis is no longer regarded by the courts as a soft drug and it is well known to have a range of potentially dangerous and harmful consequences for its users, although I do acknowledge that you have derived some therapeutic benefit from your use of cannabis. By committing the crime of trafficking, you have distributed this illegal and harmful drug to others and you have done so for profit, although I accept not on a high level commercial basis.
The serious aspects of the crime do require the imposition of a sentence of imprisonment. This is required because of the primary sentencing consideration of general deterrence. However, given your background, your current health, the relatively low level of trafficking activity, and the fact it can be distinguished from other more serious examples of this crime, your early plea of guilty, and your clear and comprehensive co-operation with the police, I think it is appropriate to give you an opportunity to avoid serving the sentence which I intend to impose, and, accordingly, I will impose a wholly suspended sentence.
The orders I make are as follows:
1 You are convicted of the crime and the offences to which you have pleaded guilty.
2 For all offences, except count 6 on complaint 54548/2019, you are sentenced to a global term of 12 months’ imprisonment all of which is suspended for a period of 18 months on the condition that you are not to commit another offence punishable by imprisonment during that period.
3 In respect of count 6, on complaint 54548/2019, which is a non-imprisonable offence, you are fined the sum of $150.
3 Pursuant to s 16 of the Crime (Confiscation of Profits) Act 1993, I am satisfied that the money found by police in your possession on 11 July 2019 in the sum of $200 is tainted property, and I order that that money be forfeited to the State.
4 I make the forfeiture orders sought by the prosecution.