STATE OF TASMANIA v THOMAS EZEKIEL RICKETTS 24 MAY 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Ricketts, the defendant, has pleaded guilty to one count of trafficking in a controlled substance, namely cannabis oil, and one count of cultivating a controlled plant for sale. I am also dealing with his pleas of guilty to summary offences of possessing cannabis, and using cannabis oil. All of these charges arise out of a police search of a residential property owned by the defendant but rented out at the time, and a shed in the backyard of his sister’s home in which he was living at the time. The defendant was present at the search of both places. In a hallway cupboard of the first property, police found two buckets, one containing 560 grams of cannabis, the other 490 grams. In the kitchen, police found five bottles each containing 45 millilitres of cannabis oil, and one snap lock bag containing .9 grams of cannabis. Some empty snap lock bags and a coffee grinder containing cannabis residue were also located. At the later search of the shed at his sister’s home, police found 17 bottles each containing 50 millilitres of cannabis oil and one snap lock bag containing 5.1 grams of cannabis. When interviewed, the defendant admitted he had seen the bottles of cannabis oil at his property but refused to say where it had come from or whose it was. He said it was a medicinal tincture made to a recipe for cancer patients. He admitted ownership of the oil found in the shed, again saying it was a tincture which he gave to friends who were sick in order to help them. He said he had a couple of friends who were suffering from cancer and sleep disorders. He said that he did not offer it for sale but gave it to people who were sick. He denied making the oil but admitted it contained cannabinoids and THC. He admitted having grown the cannabis, saying it was cheaper than buying it. He said he used it himself and gave some away to friends, denying that he received any payment. Although not specifically commenting in relation to the ownership of the cannabis in the buckets, he said that all persons at the property were involved in cannabis growing and it was a joint venture. The Crown case is that the defendant trafficked in cannabis oil by being found in possession of 1.075 litres seized from both properties, with the intention of selling at least part. The trafficable quantity of cannabis oil is 25 millilitres. The Crown’s initial assertion was that the total “street” value of the oil was $57,750 but did not dispute the defendant’s assertion that this value was based on an assumption of a high level of purity, whereas the oil found was diluted with, among other things, palm oil, making the real value about $50 per bottle; a total of about $1,100. As to the cannabis, the Crown again relies on possession of more than the trafficable quantity. The Crown asserts that the “street” value ranges from between $9,375 and $21,875, depending on the quantities in which it might be sold. As to both forms of cannabis, the Crown accepts that some was for personal use, some was to be given to friends, but some was to be sold within the extended meaning of that word given to it by the Misuse of Drugs Act.
The defendant is now 47 years old. I was told that he had an unremarkable upbringing and a well rounded school life. He is an industrious person. He drove a delivery van for a bakery for about 10 years, saw an opening to grow fruit and herbs for that bakery, started that operation and continues to sell to that bakery. From 2014 he has also been involved in a fencing business. He started that with a friend whose interest he later purchased. In addition, he used an inheritance to buy unimproved land near Ouse from which he takes firewood. He has been a regular cannabis user since the age of 17. Before these offences were detected, I was told he had been attempting to reduce his use, and had been partially successful in that respect. This history is reflected in his record of prior convictions. He has appeared before courts on a number of occasions since December 2002 on cannabis related offences. The prominent convictions are as follows. Supplying, using and possessing a prohibited substance in December 2002, supplying and using a controlled plant in January 2003, selling and using a controlled plant in January 2008, using a controlled plant and possessing an administration device in July 2008, selling, possessing and using a controlled plant in October 2014, and lastly, possessing and using a controlled plant in August 2015. In respect of these offences he has been variously fined, ordered to perform community service, and sentenced to a suspended term of imprisonment. The August 2015 conviction led to a community service order for 80 hours. I was told that since these police searches he has not used cannabis at all. As to the first count, I was informed – without dissent from the Crown – that the defendant acquired the bottles of oil, and to the extent they were sold to people he perceived were in need, were sold at no profit. He was not involved in the manufacturing process. As to the cultivation of cannabis, I was told that the defendant is part of a small group of men who socialise. They would meet on a residential block of land owned by the defendant in what was effectively a “Men’s Shed” type arrangement. Some would drink alcohol, some would smoke cannabis. Of the cannabis grown by the defendant he would use some, give some away, and barter some.
Parliament has made cannabis a controlled substance and as such, commercial dealings – actual or intended – have to be treated very seriously. There are good reasons for its prohibition. Research and general experience shows it has a range of potential adverse effects on mental and physical health. Commercial dealings in it need to be discouraged. The fact that medicinal cannabis is available through a regulatory regime provides no excuse for breaches of the law. In this case, I take into account the extent and nature of the trafficking activity and the intended use and destination of the cannabis grown. Although a limited and known group of people were involved, the defendant really had no control about what they might do with the substance. I take into account the pleas of guilty. They were late but came in the wake of an amendment to the previous indictment, that amendment operating somewhat in the defendant’s favour.
Mr Ricketts, I have set out what I see to be the relevant facts and circumstances surrounding your offending. On the face of things, given your record of relevant offending and the nature of the charges presently faced, immediate imprisonment strongly suggests itself. You have not been deterred by previous sentences. However, in all of the circumstances, I am prepared to take the course suggested on your behalf, and suspend the execution of a term of imprisonment. You are convicted of all matters and sentenced to 12 months’ imprisonment the execution of the whole of which is suspended on conditions that you do not commit any offence punishable by imprisonment for a period two years, and on condition that you perform 100 hours of community service within the period of 24 months from today. You will have to report to a probation officer at 114 Bathurst Street, Hobart by 5pm tomorrow, 25 May 2021. I need to make it clear to you that the expression ‘any offence punishable by imprisonment’ is to be read literally, and extends to a wide range of offences. If you breach any of the terms of suspension a judge must activate the term unless it is considered unjust. I have also been asked to order that you pay the costs of analysis totalling $5,170. That is opposed on the basis that you made full admissions in the police interview as to what had been seized. I decline to make the order. It seems to me that there is sufficient evidence of your familiarity with and knowledge of the drug to warrant acceptance that what you had in your possession was cannabis oil and cannabis, at least to establish a prima facie case to that effect: see Harris v Pandava 24/1975. Given those admissions and the cost involved, I would have thought a prosecution request to agree facts about the nature of the substances, pursuant to s 109 of the Evidence Act, would have been reasonable, and in the absence of such a request and a refusal, I do not think it is fair to order the payment of such an amount.