STATE OF TASMANIA v ROBERT STEPHEN WILSON 9 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Robert Wilson, the defendant, has been found not guilty of trafficking in a controlled substance, cannabis, but guilty of possessing a controlled plant, and not guilty of cultivating a controlled plant for sale but guilty of cultivating a controlled plant. I am also dealing with his pleas of guilty to summary offences of supplying a controlled plant, using a controlled plant, possession of smoking devices, and failing to comply with firearm storage requirements. All charges arose out of a search of the defendant’s home near Kelso on 25 April 2022. The defendant was then living in a van on a rented property but had a block at the rear. At various locations on the two blokes, police found in varying types of containers harvested and drying cannabis. The total dried weight of the bud component of that material was about 7.5 kilograms. In addition, in a number of outdoor compounds police found a total of 37 cannabis plants that had been harvested. The search also revealed three homemade cannabis smoking devices, and a .22 calibre rifle and three rounds of ammunition that were not properly stored although a compliant facility did exist. The defendant fully co-operated during the search, and when interviewed, admitted the cultivation and harvesting of the cannabis but explained he was a very heavy user due to a major health issue giving rise to the need for pain relief, and the cannabis was for his own personal use. The defendant gave evidence and satisfied the jury that his explanation was more likely than not true.
The defendant is now 52 years old. He does not have any relevant prior convictions. The only matter of any general significance is an offence of dishonesty for which he was dealt with some 20 years ago by way of a sentence of imprisonment suspended on conditions for three years. There is no recorded breach of the conditions of suspension. Prominent in the trial and in this sentencing exercise is the state of the defendant’s health, about which there seems to be no dispute. As he explained it, it is essentially a chronic condition with substantial kidney stones, a condition from which he has suffered since his late 20’s and apparently followed on from a sepsis contracted after minor surgery on his hand. He has had to have multiple and frequent procedures to, one way or another, remove the stones. During the last endoscopic surgery he had, he was close to losing enough blood to make his situation fatal. About seven years ago he was told he had a 50 per cent chance of dying within a year with an increase of 10 per cent for each year that passed. At that time he was prescribed a medication that has slowed down the growth of the stones although he has a significant cyst on his right side at the moment. He had been prescribed opioids for the pain but he was adverse taking them and found that on the whole smoking cannabis helped him the most, but particularly with the frequent spasms from which he suffers. He said that if he lasts another 12 months he would be more than happy. Although he has supportive parents and two sisters, he essentially keeps to himself. His day to day support comes from the owner of the property which he rents. He is a disability support pensioner because of his health condition. I am told that he found the whole experience of the police search, subsequent arrest and charging and various court appearances culminating in the Supreme Court trial a most salutary one. Since his arrest he has been trying to rely more on prescription medication but, I was told in the interests of frankness, still occasionally smokes marijuana because, I infer, he feels that there is really no option. He accepts that he had a very large quantity of cannabis. His evidence was that he had previously tried, rather unsuccessfully, to grow cannabis, particularly in the year before. In relation to the plants found by police he had planted and cultivated a considerably higher number than he had in the past and was rather surprised with the outcome. His cultivation methods were rather unsophisticated. As to the summary charges, most are self-evident. As to the charge of supply, he admitted to police that he had given some to his landlord and it is that admission that gives rise to the charge. That person is apparently a regular user so there is no corrupting element present. The firearm storage breach came about because he had used the rifle the night before the police visit for vermin control, and was in pain and too tired to put things away properly.
Parliament has made cannabis a controlled plant and hence a controlled substance for growing possession and use for which are illegal. Although not to be sentenced for any commercial dealings, actual or intended, factors of denunciation and general deterrence remain important. The amount of harvested cannabis had considerable value if it found its way into the market, and there is always some level of risk of large stored amounts falling into other hands. The same might be said of unsecured firearms, even though in that state for a short period. I take into account the defendant’s health condition and what led him to the heavy use of cannabis and hence to the cultivation of the number of plants involved, and to the possession of the quantity of harvested cannabis found. I take into account that he seems to have learnt a significant lesson from his experiences with the criminal justice system. As to that, I accept that he is doing his best to avoid breaking the law. Of particular significance is the very long battle he has had with this terrible affliction and the most regrettable situation in terms of his life expectancy. This case calls for some individualisation. I accept the submissions made by his counsel that an appropriate penalty involves the recording of convictions and the imposition of fines, as to which I note the defendant’s limited financial resources.
Mr Wilson, I have set out the facts and the relevant considerations as I see to them to be. I perhaps need to remind you that even possession of cannabis is punishable by imprisonment. In your case, for the reasons I have outlined I will deal with these matters by way of fines. You are convicted of all the drug related matters and fined the sum of $1,200. I will deal separately with the firearm matter. You are convicted of that charge and fined the sum of $150. I order the forfeiture of items 1, 3 and 6 on drug exhibit sheet number 270643 dated 25 April 2022 which is part of exhibit P4.