STATE OF TASMANIA v MICHAEL ANDREW SMITH 13 MAY 2021
COMMENTS ON PASSING SENTENCE WOOD J
Michael Andrew Smith has been found guilty by a jury of the offence of cultivating controlled plant as an alternative to the more serious offence of cultivating controlled plant for sale. He has also pleaded guilty to summary offences of use a controlled plant and use a controlled drug involving cannabis and methylamphetamine respectively. The facts associated with the cultivating offence, consistent with the jury verdict and on the evidence I find proved beyond reasonable doubt, are that the defendant cultivated four cannabis plants in an area at the rear of his rented home at Gawler. He grew these plants for personal use.
During a search by police on 23 January 2019, officers found a wire enclosure with black mesh at the rear of his house. Inside the police found 4 mature, healthy cannabis plants. Outside the enclosure were 6 dead plants, which were male plants the accused had pulled out and discarded. The accused admitted to planting and watering the plants. If these plants had reached their full potential, the yield from each may have been as much as 4 ounces. I note the number of plants is consistent with his purpose of personal use. At the time he was a regular user of cannabis. He used cannabis to manage his chronic pain associated with a long-standing back condition.
The defendant admitted to last using cannabis a week before the police search and using methlymphetamine three months before, giving rise to the summary offences I have mentioned.
The defendant, aged 57, has a significant number of prior convictions for drug offences. He has prior offences for similar drug offences dealt with in the magistrates’ court on five occasions between 1991 and 2010. In relation to the latter offending, dealt with in 2010, he also was convicted of selling controlled plant or its products. These offences all attracted fines. Then in 2013 he committed an offence of trafficking in a controlled substance and cultivate a controlled plant for sale as well as using a controlled plant. He was sentenced to 5 months’ imprisonment wholly suspended and community service. He did not breach that suspended sentence. But, in 2019 he committed an offence of possess controlled plant or its products and supplying controlled plant or its products and received a fine and community service. Those offences were committed in May 2019, some 4 months after the offences before the Court today. He was later resentenced as his physical condition meant he was unable to carry out community service. He was sentenced to an increased fine.
I am conscious that this offence did not involve a large number of plants. Still, his offending had a blatant quality given his history before the courts and he was refusing to be deterred.
I note that now his chronic pain is being managed by appropriate pain medication, and he is not using cannabis. He has a business which has taken time to grow but is now profitable.
On balance, given the defendant’s current circumstances since offending, I am satisfied that a fine is an adequate penalty. I record convictions and I impose is a fine of $1000 on the offence of cultivating controlled plant. The two other summary matters attract convictions.