what really happens if i'm busted?

[boomstix]

i was wondering what would happen if i was busted...

so i did a lil research

forewarned is forearmed eh?

 

ref: tasmania supreme court - sentence comments

 

TASMANIA v RODRICK CLAIRE SHEPHEARD 12 May 2004

 

 COMMENTS ON PASSING SENTENCE        EVANS J

 

 Consistent with the jury's verdict, you are convicted of one count of cultivating a controlled plant for sale, one count of possessing a thing intended for use in the cultivation of a controlled plant for sale and one count of stealing electricity.

 

 In about August 2000, you moved to premises in which you set up an elaborate indoor system for the hydroponic cultivation of cannabis.  When police raided the premises on 9 November 2002, you had about 300 cannabis plants and cuttings under cultivation.  This was a substantial enterprise.  Two police officers with years of experience in the Drug Investigation Service said it was the largest hydroponic cultivation system they had come upon. 

 

 Your conviction for stealing electricity relates to your use of power to operate the system from a source that had been illegally diverted around the power meters at the premises. 

 

 You are 22 years of age and have been a regular cannabis user since you were 15.  You have prior convictions referable to your use of cannabis on 9 October 2000.  Your attraction to cannabis is in part attributed to problems which relate back to sexual abuse you suffered at the hands of a relative during your childhood. 

 

 With commercial advantage in mind, you embarked on a significant and extended criminal enterprise, an objective of which was to sell a substance which may have a deleterious effect on those who consume it. You are sentenced to six months' imprisonment. You being a young man, I am satisfied that it is appropriate to give you an opportunity to mend your ways.  I will wholly suspend this sentence on condition that you be of good behaviour for a period of three years.

 

 The levy of $150 fixed by the Victims of Crime Compensation Act for your offences is to be paid by you to a clerk of petty sessions within three months.

[boomstix]

here's the link

 

Corrected 27.05.04.

 

IN THE DISTRICT COURT

 

CRIMINAL JURISDICTION

 

ADELAIDE

 

THURSDAY, 27 MAY 2004 AT 9.26 A.M.

 

BEFORE HIS HONOUR JUDGE LUNN

 

NO.990/2003

 

R v DOBRIVOJE ANDELKOVIC

 

HIS HONOUR IN SENTENCING SAID:

 

In this matter for the reasons which I now publish, which are District Court judgment 2004 SADC 80, I find that the prosecution has proved beyond reasonable doubt that the offence in count 1 took place against a background of prior commercial cannabis production by the defendant.

 

There will be a sentence imposed of imprisonment for 22 months.

 

I’m prepared to grant him some leniency by fixing a shorter than usual non parole period of 11 months.

 

Both the sentence and the non parole period to run from today.

 

I do not find there is sufficient good reason to suspend the sentence. Are there any other loose ends I need to tie up?

 

MS SUTCLIFFE: No.

 

ADJOURNED 9.28 A.M.

 

 

 

REASONS FOR SENTENCE

 

Dobrivoje Andelkovic was charged on Information in this Court on a count of possessing cannabis for sale contrary to s32(1)(e) of the Controlled Substances Act 1984 and with a second count of unlawful possession of $22,800 contrary to s41 of the Summary Offences Act 1953. On his initial arraignment on 7 October 2003 he pleaded not guilty to both counts. A trial date was fixed for 19 May 2004. When I sat on that day I was informed that the defendant would plead guilty to count 1 and by consent, count 2 was to be transferred to the Magistrates Court for trial. The defendant duly pleaded guilty to count 1. However, it became apparent that there was a live issue on the factual basis for sentencing on count 1 of whether that offence was committed against a background of a wider involvement with illicit cannabis production and/or dealing to which any possession of $22,800 by the defendant was relevant. Against the opposition of the defendant’s counsel I decided to sit that day as a Magistrate to hear the trial on count 2 in conjunction with a disputed facts on count 1. However, after a short break I was informed that an arrangement had been reached whereby the prosecution would tender no evidence on count 2, but the defendant would consent to an order for the forfeiture of the $22,800. That then occurred. (On the disputed facts hearing the prosecutor did not suggest that any inference was to be drawn from the defendant having consented to the forfeiture of the $22,800 that it had come from an illicit source, and I do not draw any such inference.)

 

I then proceeded to conduct a dispute of facts hearing on the circumstance of aggravation mentioned above. The prosecutor merely relied upon the depositions, although part of the record of interview on 30 March 2003 was excluded. The defendant elected to call no evidence and in effect relied upon the prosecution not having proved the circumstance of aggravation beyond reasonable doubt. I reserved my decision.

 

The defendant was born in Serbia in 1951 and is now 53 years of age. He had little schooling. In 1987 he migrated to South Australia. He married, but separated from his wife after two years. There are no children of the marriage. Until 1995 he worked as a labourer. He was then incapacitated as a result of a motor vehicle accident. He suffered a permanent disability in his neck and back which has since prevented him from working. He has been in receipt of a disability pension. In an effort to alleviate the continued pain in his neck and back he was introduced to the consumption of cannabis which he found to be successful in relieving his pain.

 

In early 1999 the defendant settled his claim arising out of the motor vehicle accident for $30,000. At that time he purchased a three bedroom house at 15 Quadrant Avenue, Salisbury North ("the house") for $65,000 which he paid for partly out of his damages award and partly from moneys borrowed on a mortgage.

 

In recent years the defendant has led an austere and solitary life. He has few friends. He is illiterate and cannot speak English. He has regularly sent money back to Serbia for the support of a mentally impaired nephew there.

 

The defendant has been medically treated for depression by a general practitioner for at least the last ten years. As from 23 April 2003 his depression required him to live with a cousin as there was no one else to take care of him.

 

On 27 March 2003 the house was searched by police. In the roof cavity, which was accessed by a ladder through a manhole, they located a substantial quantity of trimmed female cannabis head. Some dry cannabis stalk and head was found in a metal shed in the back yard.

 

The total weight of cannabis located was 3,431 grams. If sold by the pound that cannabis would have been worth at least $16,141, and considerably more if it had been sold in smaller quantities.

 

In the back shed there was a small room which was sealed with a plastic lining and contained hydroponic lights, transformers and black plastic pots. There was a small amount of dried cannabis leaves on its floor, but no cannabis was growing in the room. (Regrettably this room was not photographed by the police.) In a draw in the bedroom were several electric timers.

 

In the back yard of the house a high metal fence had been built several metres out from the rear boundary fence. Between these two fences was a large greenhouse constructed by draping plastic over a wooden frame. There was nothing growing in this greenhouse and there was no evidence that cannabis ever had been grown in it. However, it was implicit in the submissions of the defendant’s counsel that the cannabis found in the ceiling of the house had been grown in that greenhouse.

 

A search of the defendant and the house only located $180 in cash. There were no items such as scales, small plastic bags, lists of names or the like, indicating that any retail sales of cannabis had occurred in the house.

 

Three days later on 30 March 2003 the defendant was searched by the police while in the street near his home. That search revealed he was wearing a wrap around his abdomen in which there was $22,680 in cash. There is no direct evidence about where that cash might have come from. (I ignore the statement of Detective Lengyel in his declaration as to the basis of his suspicion which led to him searching the defendant on that day as the basis of that suspicion could only have been relevant on count 2.) There is no evidence about where that $22,680 might have been on 27 March except that it was not likely to have been in the house or on the defendant’s person at the time of the police raid. There is no evidence about how the defendant as a pensioner, who was apparently paying off a mortgage and sending money to a disabled relative in Serbia, might have legitimately accumulated the sum of $22,680. There is a reasonable inference that at least a significant part of this money emanated from cannabis trading.

 

 

 

 

 

The declaration of Mr Bonnici of AGL showed that in 2002 an average domestic house consumed about 17 units of electricity per day, but in the several months prior to each of October 2002 and October 2001 the defendant as the occupant of the house was using in excess of twice that amount of electricity. While I accept that the electricity usage in winter months is likely to be higher than other months there is nothing in the evidence to suggest a reason for this much higher than average consumption by the defendant as apparently the sole occupant of the house other than it being used for the hydroponic lights and transformers which were found in the back shed. I do not accept the submission of the defendant’s counsel that this evidence of electricity usage is irrelevant because no power was required to grow cannabis in the greenhouse secreted between the two back fences. There is no evidence to support the contention that the cannabis in the roof cavity came from the greenhouse. It is at least equally likely that some of it could have come from a hydroponic crop grown in the shed. The likely inference is that the defendant used the greenhouse to grow cannabis in the summer months and the hydroponic equipment in the shed to grow it in the winter months when it would not grow outdoors.

 

The accused exercised his right of silence both to the police and on the disputed facts hearing. That was his right and no inference is drawn against him from him having exercised that right. I draw my conclusions from the evidence which I do have.

 

I reject the submission of the defendant’s counsel that it was necessary for the prosecution to prove beyond reasonable doubt that some part of the $22,680 came from drug production before it could be used as proof of a circumstance of aggravation on count 1. The prosecution seeks to prove that count 1 was an offence against a background of other prior cannabis cultivation and/or dealing by circumstantial evidence. It is not necessary that each piece of circumstantial evidence relied upon in itself is proved beyond reasonable doubt, but only that the ultimate inference does constitute proof beyond reasonable doubt of the circumstance of aggravation. Insofar as this circumstance of aggravation involved the commission of other offences, such as producing cannabis or taking part in the sale of cannabis, it is not necessary for the prosecution to prove such offences beyond reasonable doubt. It is similar to the situation in the recent decision of R v Clifford, CCA 20/4/04, Jud No [2004] SASC 104, unreported, where in dealing with the degree of proof required for uncharged acts in a course of sexual abuse over a period of time it was said it was only necessary to prove beyond reasonable doubt the purpose for which the evidence was led, ie either the nature of the relationship between the parties or establishing the course of conduct, but not the offences themselves. Thus all I need to find proved here is that the defendant had previously been involved in some other cannabis production and/or illicit dealings with cannabis, but not extending to proof of the actual details of what occurred.

 

I find that on the whole of the evidence, and on the findings I have made above, and taking into account that the $22,680 was not in the defendant’s personal possession on 27 March and that there were no indicia of retail sales, the prosecution has proved beyond reasonable doubt that the offence in count 1 took place against a background of other prior commercial cannabis production and/or dealings by the defendant. In other words I find that there is no reasonable hypothesis available on the evidence which I accept which is inconsistent with this conclusion. Accordingly, I reject the submission of the defendant’s counsel that this was a "one off" offence and was out of character.

 

The maximum penalty for the offence is imprisonment for 10 years and/or a fine not exceeding $50,000. The defendant is to be given some credit for his belated plea of guilty just prior to the trial, but not nearly as much as would have been allowed if he had pleaded guilty before a trial date had been set. I only sentence the defendant for the offence charged in count 1 and not for any prior drug offences which are suggested by the evidence.

 

The defendant has one prior conviction for common assault in 1993, but no other criminal record.

 

I accept some of the cannabis found was intended for the defendant’s own use. However, by his plea of guilty he had admitted that he had a commercial purpose for the rest of it. Through his counsel he asserted that other persons had assisted him. However, as he did not name such persons that cannot be a circumstance of mitigation.

 

It was not disputed that a term of imprisonment had to be imposed. That will be a sentence of imprisonment for 22 months. But for the plea of guilty that would have been a sentence of 24 months imprisonment. In view of the defendant’s poor health and lack of English I am prepared to grant him some leniency by fixing a shorter than usual non-parole period of 11 months. Both the sentence and the non-parole period are to run from today.

 

There is not sufficient good reason to suspend the sentence under s38 of the Criminal Law (Sentencing) Act 1988 As the offence was committed against a background of substantial involvement in cannabis production and/or trading the sentence could only be suspended if there were exceptional circumstances: R v Mangelsdorf (1995) 66 SASR 60; R v Cristol, CCA 20/8/02, Jud No [2002] SASC 228, unreported; R v Kane, CCA 17/6/03, Jud No [2003] SASC 237, unreported. No such exceptional circumstances exist here.

 

I have already made orders for the forfeiture of the cannabis and the $22,800.

[boomstix]

linkage near

 

THE SUPREME COURT OF

 

THE NORTHERN TERRITORY

 

SCC 20307212

 

 

THE QUEEN

 

and

 

PETER JAMES CARLE

 

(Sentence)

 

 

 

BAILEY J

 

 

 

 

 

TRANSCRIPT OF PROCEEDINGS

 

AT DARWIN ON WEDNESDAY 28 APRIL 2004

 

 

 

 

 

 

 

 

Transcribed by:

Court Recording Services (NT) Pty Ltd

 

 

HIS HONOUR: Peter Carle has today pleaded guilty to two counts of an indictment charging him with offences under the Misuse of Drugs Act. The first count is one of possession of a commercial quantity of cannabis, namely some 1507.5 grams. The second count is one of unlawfully cultivating cannabis plants.

 

The circumstances of the two offences have been summarised by the Crown as follows, and I will quote the summary of the Crown facts which reads as follows:

 

Peter James Carle and Bradley Tonkin have been the occupiers of 5 Jansz Street, Wagaman for a number of years. Sometime prior to 3 April 2003, Mr Carle, the offender, planted two cannabis seedlings in pots in a spare room at the rear of their residence. He then nurtured the plants by supplying them with nutrients and artificial light sources in an hydroponic environment.

 

At approximately 11 am on Thursday 3 April 2003 police executed a search warrant at the offender's premises and located the cannabis plants growing in the rear room. The offender was not present when police initially attended but he arrived approximately an hour later. When asked if he had any knowledge of the cannabis plants the offender replied, 'They're mine'. When asked what he intended to do with the plants the offender replied, 'Because of the strictness of the laws now you are allowed to have two plants just for yourself and that's all I was doing'.

 

Various other quantities of cannabis plant material were also located by police throughout the premises. The total weight of cannabis seized was 1507.5 grams, that included 850 grams of loose cannabis plant and stalk material in garbage bags. In relation to that 850 grams the defendant stated, 'It's probably ready to be thrown out'. Other quantities of cannabis were located in jars on top of the offender's refrigerator and in cardboard boxes in the offender's bedroom.

 

In the course of the search the property listed on the attached table was seized as it was being used in the cultivation of cannabis. The Crown seeks forfeiture of those items and the matter proceeded by way of summons and the offender has not spent any time in custody.

 

That completes my quote of the summary of Crown facts, other than to note that there is as indicated attached to the summary a list of items which were seized allegedly being used for the cultivation of cannabis.

 

Ms Franz, on behalf of Mr Peter Carle, has admitted the truth and accuracy of the Crown's summary. I find the facts to which I have referred proved and I convict Peter Carle of the two offences as particularised in the indictment.

 

Mr Franz did not oppose forfeiture of the items listed in the table attached to the Crown's summary of facts. I am satisfied that those listed items were used in the cultivation of cannabis and I order forfeiture of each of the items to the Crown pursuant to section 34 of the Misuse of Drugs Act.

 

In addition to the summary of facts, Ms Ozolins, on behalf of the Crown, tendered a booklet of photographs, exhibit P3, depicting the two cannabis plants grown by the offender, cannabis seized by the police and the general scene where the plants were grown at the offender's home.

 

Ms Ozolins also tendered the Western Australian criminal record which aside from traffic matters shows that the offender has previously been convicted of a number of drug offences. In 1983 he was convicted for possession of heroin; '86 use of heroin; '86 again cultivation of cannabis; 1990 possession of cannabis and a smoking implement and 1991 possession of cannabis. All of these offences were dealt with by way of fines between $150 to $500 and I do note that the offender's most recent drug conviction was in 1991, that is more than 13 years ago.

 

The offender is a 46-year old man originally from Fremantle in Western Australia. He has worked for most of adult life in a variety of occupations, including real estate, advertising, off-shore oil drilling, sales representative, mining, stevedoring and scaffolding. I am told and I accept, that the prisoner, the offender, started experimenting with hard drugs, principally heroin at a young age and despite some extended periods of abstinence he has battled addiction to heroin and morphine up to recent times.

 

In December 2002 the offender entered a methadone program. In the three years prior to December 2002 the offender had been receiving prescribed morphine to cope with a back and a leg injury, but he also supplemented his drug use by resorting to the black market.

 

Ms Franz tendered four reports marked exhibit D1 prepared for Credit NT, that is the drug court. These reports covering the period 17 December 2003 to 18 March 2004 are very positive in relation to the offender's efforts to tackle his drug addiction. Similarly, a letter, exhibit D2 from Rose Mutch, a nurse counselor with Alcohol and Other Drug Services of the Department of Health and Community Services, is very positive in the offender's favour.

 

The reports note that the offender has commenced to reduce his methadone use; has ceased resorting to the black market for drugs; has stopped using cannabis. He voluntarily attends counselling sessions despite having completed the requirements of Credit NT. He is enjoying university computer studies and he is eager to rejoin the workforce. He feels much more positive about himself and the future.

 

The most recent report to the drug court concludes, and I quote:

 

Mr Carle has made significant gains during the time he has been on the Credit NT program, he has complied fully with every aspect of the program and indeed, has exceeded the program requirements. He identified the interest shown him by the pharmacotherapy staff, program staff and attendance at counselling as the major factors leading to improvements he has made. This is an extremely positive outcome and Mr Carle has reason to be proud of his progress including his successful completion of the Credit NT program.

 

Having regard to the commercial quantity of cannabis in the offender's possession, section 37(6) of the Misuse of Drugs Act raises a statutory presumption that the offender intended to supply the cannabis for commercial gain unless the contrary is proved.

 

It was not the Crown's position that the offender in fact intended to supply the cannabis in his possession for commercial gain. Indeed, Ms Ozolins on behalf of the Crown conceded that a substantial quantity of the seized cannabis was not suitable for commercial purposes or indeed any practicable purposes.

 

Much of the cannabis plant material seized was unusable: stalks, stems, dead leaves and unproductive parts of the cannabis plants. Notwithstanding the Crown's concession the offender gave evidence in rebuttal of the presumption. His evidence was that the two plants were grown for his exclusive personal use to save money and to avoid contact with drug dealers.

 

Having seen and heard the offender give evidence I accept that he told the truth, that is, he grew the cannabis for his own use not for commercial purposes or supply to others. In this regard I take into account the somewhat amateurish setup of the hydroponic equipment as shown in the photographs and the absence of any of the usual paraphernalia for drug dealing such as sets of scales, deal bags, quantities of cash in small denominations.

 

I also accept that much of the cannabis seized by the police at the prisoner's home was in effect worthless rubbish, which the offender intended to use as garden mulch. The offender's evidence in this regard receives considerable support in the photographs in the booklet exhibit P3, in particular photographs 12, 15, 17, 20 and 21 appear to show cannabis stalks, stems and dead leaves of minimal if any value as a drug.

 

The offender's convictions for drug offences in the 1980s and early 1990s combined with his conviction on count 1 raise the application of section 37(2), (3) of the Misuse of Drugs Act. These provisions require the offender to be sentenced to an actual custodial sentence of not less than 28 days, unless:

 

Having regard to the circumstances of the offence or the offender it is of the opinion, that is, the court is of the opinion that such a penalty should not be imposed.

 

In the offender's case I have come to the conclusion that a combination of the circumstances of his offences and his personal circumstances are such as to warrant a fully suspended sentence.

 

The matters that I have given particular regard to, firstly the Crown's concessions to which I accept are correctly made, that much of the seized cannabis or at least a substantial portion of it was unusable worthless rubbish and that the offender had no intent to supply the cannabis for commercial gain.

 

Secondly, pursuant to section 37(5) of the Misuse of Drugs Act the fact that the offender is a drug dependant person, albeit his addiction is not to cannabis but rather to opiates.

 

Thirdly, the offender's genuine efforts to rehabilitate himself via the Credit NT program. In this regard I am satisfied the offender has made an exceptional effort and is genuine in his desire to overcome drug dependence.

 

Fourthly, his plea of guilty to an ex officio indictment at the earliest opportunity and his full co-operation with the police, and fifthly, the long gap in his record of drug offending as I have noted, some 13 years.

 

Count 1 of the indictment is nevertheless serious. The possession of 1.5 kilograms of cannabis is likely to see some fall into the hands of others, notwithstanding the lack of any intent to supply to others. In the offender's case the seriousness of the offence is mitigated by reason that a substantial portion of the cannabis found was worthless, that the photographs of the offender's two plants however indicated that a substantial harvest could have been expected in the absence of police intervention.

 

The combination of counts 1 and 2 merit a custodial sentence, but for the reasons I have referred to I consider it may be wholly suspended in the offender's case. Neither the offender nor society generally would benefit from locking the offender up. The most likely outcome of that course would probably be the offender lapsing back into hard drug use on his release from prison. I am convinced that the better course is for the offender to continue on his path to overcoming drug addiction in the wider community and hopefully to enter the workforce before not too long.

 

In all the circumstances of the offences and the offender I will impose an aggregate sentence of imprisonment for the two offences. I sentence the offender to imprisonment for four months which I note is discounted by one-third to take account of his plea and co-operation.

 

I order that the sentence be suspended forthwith subject to conditions. I fix a period of 12 months from today as the period during which the offender is not to commit another offence punishable by imprisonment.

 

It will be a condition of the offender's suspended sentence that he place himself under the supervision of a delegate of the Director of Correctional Services for a period of 12 months from today and obey all reasonable directions as to employment, residence, associates, reporting and assessment, counselling and treatment for substance abuse.

 

I note that in this regard that I have received a favorable assessment as to the offender's suitability for supervision from Ms Lorna Robinson, the court's officer of Community Corrections.

 

Finally, Mr Carle, I want to emphasise that you do have that four months hanging over your head and that is going to be hanging over your head for the next year. So if you do commit another offence punishable by imprisonment, particularly a drug offence, or indeed if you fail to comply with supervision then you can be brought back to this court and in those circumstances the court would have the discretion to order you to serve all or part of that four months in prison.

 

The Sentencing Act is such that the court would order you to serve the whole four months, unless there were some very good reasons to making that unjust. So you can walk out of court today but just keep in mind that you do have that four months over your head.

 

I am pretty impressed by the reports about you and I genuinely hope you make it, so good luck and keep away from opiates and keep away from cannabis and let this be the end of the matter and let us see in a year's time you might be back at work, off the drugs entirely I hope.

[Quad Damage]

SO if SA is the mj capital of Australia why does it have some of worst laws? It seems if you now grow in SA your fucked...

[SoDrysBro]

well done i cant believe someone read that whole post or did u skip threw it ?

[LoveMeBucket]

I read it.. thanx Boomstix

 

I have a Q tho...

 

Say if u were caught in your house with 50 plants and 2 people are sharing that grow.. can they say its 25 each sorta thing or does each person get done for 50

[Skunkxxx]

Yea try that.

[Guest blaze_dat_dank]

oh , thanx for posting about who was molested as a child, Im sure they wwill appreciate you doing that. Edited June 4, 2004 by blaze_dat_dank

[jaikai]

oh , thanx for posting about who was molested as a child, Im sure they wwill appreciate you doing that.

:angry: didnt i tell you to fuck off...

 

@boomstix...interesting read that. im in vic myself, from all ive seen around me, the weather is harder on potheads (non-commercial) than the police...cant believe the sentences handed down in QLD mate. seems the better the climate for it, the worse the penalty.

 

JAIKAI

[LoveMeBucket]

yer some of the details were a bit personal..