Written by Josh Taaffe. Solicitor, Doogue & O’Brien Criminal Defence Lawyers
A client came into the office recently, clutching his charge sheets. The main charges were cultivating and trafficking a commercial quantity of marijuana. The first question to cross my mind was “Why is he here?” Not as in, “why is he coming to see me?”, but as in, “how is he physically in my office?” To be granted bail whilst facing charges for possessing a commercial quantity one has to establish “exceptional circumstances”.
And, “exceptional circumstances” are extremely difficult to establish. The test is the same as is used to decide whether a person is bailed on a murder charge. My client did not seem to have anything close to exceptional circumstances. He was a nice young man with no prior convictions and a job but those things in and of themselves are not exceptional.
It emerged after some probing that the officer who charged him was fairly junior and inexperienced. In Court, the Magistrate noticed the obvious issue and raised the question to the Prosecutor, “why is he on bail?” I had never encountered this Prosecutor before, she seemed fairly inexperienced too, thus did not take the opportunity to apply to revoke my clients bail. Fortunately she instead steadfastly defended the decision to grant him bail.
In these circumstances, it can occur that there has been some deal struck between the Police and the client (although, I don’t believe there was in this case) and that can explain police granting bail. At other times, one can just put it down to the vagaries of the system. As an active criminal lawyer in Melbourne, I have come to know that there are a few when it comes to dealing with charges of this nature.
How to make a good start when facing charges of cultivating or trafficking a commercial quantity of cannabis:
- Prove the addiction
If a user of cannabis, the client should immediately go and see a GP to get a referral to a pathology lab and get a blood test. This is important later on to show that the client was a user at the time. There may have been an absence of material at the scene (like bongs or papers) that would otherwise have shown that the client actually engaged in drug use at the time.
- Start rehabilitation
The client should commence a program and work their hardest to stop using. This may not stop a gaol term ultimately but it will certainly help if it is a lineball call. It will also impact on the decision maker as to how long an accused is put away for if sentenced to a prison term.
- Get counselling
The client should discuss with their lawyers the issues around the offending and drug use and seek psychological counselling. Their lawyer should point them in the right direction in terms of who is the best person to see and how the counselling should be directed.
- Get back on track
The Court process is very slow and it can take quite an amount of time between the offending and the matter appearing before the Courts. The accused should embark on as many meaningful pursuits as they can in effort to get on their life on the right track while the court process takes its course. The big-ticket items are typically:
- Get a job.
- Participate in some voluntary work.
- Address some of the surrounding issues that may be connected with the offending, including relationships and associations.
A Judge may take the cynical approach and deem that these actions are being followed with an eye to look better in Court but often people start doing very worthwhile things with their lives after the wake-up call of being charged. Any steps towards rehabilitation count in your favour during sentencing.
The weight debate:
- The plants will be assessed by a scientist from the Forensic Services Department (defence can have them assessed independently if needed).
- Forensic Services will separately assess the weight of the whole plant excluding roots
- The weight will be separated into components as a percentage – leaves, flowering heads,
- The weight for purposes of Court includes the stalks.
- Studies carried out by Vic Police indicate that the weight loss from Cannabis female flowering heads and leaves upon air-drying amounts to ¾ of the fresh weight. Although it is accepted that the rate can be variable
- If the plants were not fully mature then they will indicate that the weight would have increased if they were not seized at the point they were.
- If the weight can be determined at under commercial quantity, it is possible to avoid the matter being heard in the County Court and also the increased likelihood of a prison term.
The question of intent:
An issue that arises frequently is what the accused intended to traffick. Did the accused intend to traffick in a commercial quantity?
The Prosecution must show that the client intended to traffick in not less than the specified quantity of the relevant drug. It is not sufficient for the prosecution to prove that the accused intended to traffick in a drug of dependence, which in fact weighed the specified amount or to traffick in an amount which “might approximate” the specified quantity.
The intention must be to traffick at least the specified quantity. This does not mean that the accused must have known what the legal threshold was, or what the actual weight or number of the plants cultivated was.
The key question is, did the accused intend to cultivate a weight or number of plants that was at least the weight or number specified in Schedule Eleven of the Drugs Act?
This intention can be proved directly or by inferences. An inference can be drawn from a state of mind that is less than knowledge, such as proof that the accused was aware that there was a significant or real chance that the amount of drug trafficked was not less than the specified quantity. Whether an inference of intention to traffick in not less than the specified quantity can be drawn is a question of fact for the jury to determine based on all of the facts and circumstances. Such an inference should not be drawn if any other inference is reasonably open.
The same intention is required for cultivation of a commercial quantity. The accused must have intended to cultivate the commercial amount.
And, it is our job to make that particular blurry line clear.
As an active criminal lawyer in Melbourne, I have come to know that.
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