McIntyre D J

STATE OF TASMANIA v DOUGLAS JAMES McINTYRE 22 MAY 2019

and LESLEY CAROL McINTYRE                                                        

COMMENTS ON PASSING SENTENCE                           PEARCE J

 Douglas McIntyre and Lesley McIntyre both plead guilty to trafficking in a controlled substance. Mr McIntyre also pleads guilty to cultivating a controlled plant for sale. On 23 August 2018 the police pulled over a car being driven by Mr McIntyre at Sorell. Mrs McIntyre was a passenger. In the car the police found a total of 210.7 grams of cannabis in 12 different bags, each containing between 6.7 and 30 grams, and three cannabis joints. Later, their home at Port Arthur was searched. A further 179.2 grams was found in 10 snap lock bags located in a container in a wardrobe in the main bedroom, each bag containing between 7.4 and 29 grams. The police also found 11 semi-mature cannabis plants growing in pots in a garden shed. The shed contained five growing lights and a rudimentary watering system. There were other signs of the cultivation, drying, weighing and packaging of cannabis including a drying rack, scales and snap lock and paper bags.

Mr McIntyre admitted to the police that in 2018 he grew 16 or 17 plants from cuttings, including the 11 which were found, had harvested and dried cannabis from the other five or six of those plants earlier in the year, that the remaining plants were six to seven weeks old and would mature three or four months from planting. As I will further detail in a moment, both are cannabis users. They plead guilty to trafficking on the basis that they had possession of cannabis in the car, and were transporting it, intending to sell it. Some was to be supplied to a person in exchange for the earlier supply of cannabis by that person to Mr and Mrs McIntyre. The remaining portion of the cannabis in the car was to be swapped by them for a refrigerator and freezer intended for use in the renovation and development of a butcher shop they are establishing. In each case, the barter or exchange of cannabis is selling within the extended meaning of that term in the Misuse of Drugs Act 2001. The trafficking charge is confined to the 210 grams of cannabis in the car. The State accepts that the dried and packaged cannabis found at their home was for personal use. The source of the dried and packaged cannabis found in the car and at their home was the plants which had earlier been harvested. Mr McIntyre admits that he cultivated the 11 plants the police found in August 2018 with the intention that he would sell some of the cannabis by way of barter or exchange, because he admitted swapping cannabis between a number of others according to need and availability at the time. When those plants were found they had not yet developed buds, but when harvested would likely have yielded cannabis worth, if sold for money, between $6,000 and $8,000. Not all would have been sold.

I will first consider the circumstances of Lesley McIntyre. She is 58. She admitted her role, co-operated with the police and pleaded guilty. She and her husband have been together since 1981. They have two adult children. She is a person of otherwise good character. She is a long standing and well regarded member of the Tasman peninsula community and readily volunteers her time and effort in a range of community activities. She suffers from poor health. She has conditions which lead to inflammation and weakness in her musculo skeletal system, the symptoms of which started about ten years ago. She receives treatment from a rheumatologist and her general practitioner, and is prescribed medication, but claims that moderate cannabis use provides her with relief she does not obtain from conventional treatment. The difficulty with this of course is that not only is the use of cannabis unlawful, but her medical conditions do not excuse, or explain, trafficking. She has three relevant prior convictions. In 1986 she was fined for possessing cannabis. In 2002 she was fined for possessing and using cannabis. In 2004 she was given community service for possessing cannabis and supplying a controlled drug. She has no prior convictions for trafficking. In her case, the criminality involved in the trafficking is relatively low for that crime. It does not necessitate or justify a sentence of imprisonment. Because of her health conditions she is not fit for community service. Often, first time trafficking offenders are given a wholly suspended sentence. I do not propose to adopt that course, but Mrs McIntyre will know that any repeat of a cannabis related offence involving any commercial element will involve a real risk of imprisonment in any event. I think that conviction and a community corrections order with a condition requiring supervision to assist her to manage her conditions without resort to cannabis is the appropriate course.

Douglas McIntyre is 69. He also admitted to the police what he had done and pleaded guilty. He cultivated all the cannabis. During his working life he was a fisherman and then a butcher, but he is now a disability pensioner. He and Mrs McIntyre have all of the necessary approvals to renovate and open the butcher shop to which I have referred. It is intended to be a low key hobby business open for part of the week. For more than 40 years Mr McIntyre has used cannabis. He is not only addicted to it, but his belief is that it relieves the symptoms of medical conditions. He has a foot deformity from an old crush injury and severe psoriasis. As to the psoriasis, a recent report from his dermatologist indicates that use of a different conventional medication has completely controlled and removed the psoriasis. He will need to remain on that drug for the rest of his life. He admits responsibility for cultivating cannabis with the intention to sell part of it in the way I have explained. As with his wife, it is not a serious case of trafficking when considered in isolation. However the primary distinction between his position and that of his wife arises from his lengthy record for similar cannabis related offences. In 2006 he was sentenced by Evans J to imprisonment for nine months, six months of which was suspended, for cultivating a controlled plant for sale. That crime involved 8 plants, 112 cuttings and a modest growing set-up. Mr McIntyre already had a lengthy record for similar offences and, in the course of the sentencing remarks in 2006, Evans J said this:

“In all, the defendant has been convicted of cannabis-related offences on nine occasions prior to his current conviction. They were in 1980, 1986, 1987, 1989, 1993, 1995, 2000, 2004 and 2006. His 2004 and 2006 convictions were for cultivating, possessing and using cannabis.

The 2006 convictions were recorded subsequent to his current offence. They relate to offences committed on 14 April 2005, as to which the accused was charged less than three months prior to his commencement of the cultivation that is the basis of his current conviction.

The defendant has shown himself to be utterly contemptuous of the law in relation to cannabis. When interviewed by police on 4 August 2005 in relation to his current offence, he in substance said that he had not expected the police to search his property two years in a row and had thought he would get away with the cultivation for about three years.

On 19 January 2006, the defendant received a wholly suspended sentence of six months’ imprisonment in relation to offences of cultivating, possessing and using cannabis committed on 14 April 2005. His counsel says that this penalty has had a salutary impact on the defendant and there is no risk of him re-offending as a satisfactory treatment regime has been put in place for his chronic pain and various medical conditions.”

After Mr McIntyre was released, there was a ten year gap in his record, but on 17 February 2016 he was sentenced by Tennent J for trafficking in cannabis, cultivating a controlled plant for sale and possessing cannabis. The circumstances of those crimes are that, the year before, he was found with 166 cannabis seedlings in his car which he admitted intending to sell for money. Her Honour referred to the history of offending and to the repeated contention that cannabis relieved otherwise debilitating medical conditions, and imposed a sentence of imprisonment for 12 months from the date of sentence, 8 months of which was suspended for three years from his release. Again, her Honour took into account an indication that Mr McIntyre would not re-offend. History has shown it, once again, to be a hollow promise. By committing the crimes for which Mr McIntyre is now to be sentenced, he has breached a condition of that suspended sentence, which must be activated unless that is unjust. He must have known the chance he was taking. It is submitted that activation of all of the sentence would be unjust because, if the sentencing judge had not suspended any part of the 12 month term, Mr McIntyre would likely have become entitled to remission or her Honour would have ordered eligibility for parole. I can remedy that perceived injustice by now allowing for parole and taking into account the total effect of the sentencing orders I am about to make. I accept that by his age and medical conditions prison may be more difficult for him but I have no reason to conclude that he will not obtain the medication and treatment he requires. He was taken into custody at the conclusion of the sentencing hearing on 13 May 2019.

Lesley McIntyre, you are convicted on count 1 on the indictment. I make a community corrections order the operative period of which will be 18 months from today. The core conditions will be set out in the order but include a condition that you report forthwith to a probation officer at the office of Community Corrections at 114 Bathurst Street, Hobart and you must not commit an offence punishable by imprisonment. I impose special conditions that during the operational period of the order you must submit to the supervision of a probation officer, you must attend educational and other programs, undergo assessment and treatment for drug dependency, submit to testing for drug use and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.

Douglas McIntyre, you are convicted on both counts on the indictment. I activate the eight month suspended part of the sentence imposed on 17 February 2016 and order that you serve it from 13 May 2019. I order that you not be eligible for parole until you have served half that sentence. On the indictment you are convicted.  I impose one sentence.  You are sentenced to imprisonment for eight months cumulative to the term just imposed. I order that you not be eligible for parole until you have served half that sentence. The combined effect of those orders is a total sentence of 16 months from 13 May 2019 with eligibility for parole after eight months.

In respect of both defendants, I assess the costs of analysis pursuant to s 36B of the Misuse of Drugs Act 2001 in the sum of $2,530, and order that sum be paid by the defendants as part of the costs of the prosecutor within 28 days. I order that the items specified in the list attached to the Crown facts, which will be kept with these sentencing comments, are forfeited to the State pursuant to the Misuse of Drugs Act, 2001, s 38.