R v Grubb [2001] ACTSC 51 (4 May 2001)

Last Updated: 11 June 2002

The Queen v Desmond Roy Grubb [2001]

ACTSC 51(4 May 2001)

CATCHWORDS

Ex Tempore Judgment

No. SCC 11 of 2001

Judge: Justice J.E.J. Spender

Supreme Court of the ACT

Date: 4 May 2001

IN THE SUPREME COURT OF THE )

) No. SCC 11 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: DESMOND ROY GRUBB

Defendant

ORDER

Judge: Justice J.E.J. Spender

Date: 4 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The Defendant be discharged, upon giving security self in the sum of $2,000 by recognizance that he be of good behaviour for a period of 2 years from today.

REASONS FOR SENTENCE

1. On 10 March, police executed a search warrant at the premises of Desmond Roy Grubb at Mitchell. They had attended on the earlier day in response to a complaint of a burglary that had occurred, and had on that occasion noticed a strong smell which they believed to be cannabis.

2. When they returned on 10 March armed with a search warrant, a search revealed a quantity of dried cannabis plant near a bathroom in the workshop, 17 large re-sealable bags and 4 smaller re-sealable bags containing cannabis located in a roof space above the office, 2 large re-sealable bags containing cannabis adjacent to the bathroom, and 3 smaller re-sealable bags and a quantity of dried cannabis plant in a room behind the office. In addition, they found a quantity of lights, irrigation pipe, transformers, fertiliser, and porous beads.

3. In a large room about two and a half metres by 8 metres, the floor and walls were lined with white plastic. There were large aluminium ventilation pipes running through the roof, electric power cords running from the roof of the room, and the floor was strewn with dried and rotting cannabis leaves.

4. Mr Grubb told the police when they were searching the premises that about 4 weeks prior to the search warrant being executed, the premises were being rented by a company by the name of Bonanza Motors; That he had taken possession of the premises at the time by breaking in through a door and changing the locks; that the premises had been broken into a couple of nights before the search warrant was executed and some cannabis had been stolen. He had placed the cannabis in the roof to stop it being stolen. He packaged the cannabis in the re-sealable type bags a few days before the search warrant. He had wanted to save the cannabis for his daughter, who was a heroin addict and on methadone, and who also used cannabis. He had dried the cannabis in the shed and was going to supply the cannabis to his daughter to help her out. In respect of the lights, electrical equipment and beads, he agreed that these were for a hydroponics system that he was going to set up for the purpose of growing cannabis.

5. The cannabis that was found in his possession was not grown or cultivated by him, but were in the premises when he regained possession of those premises. He had not, as yet, supplied any of the cannabis to his daughter, but he thought that it would be good for his daughter with her addiction.

6. That account has not been challenged. The purpose for which, and the origin of the cannabis, in particular, have not been the subject of any challenge by the prosecution. Against that, the amount of cannabis seized was 1.903 kilograms, which is a very large quantity of cannabis.

7. Mr Grubb was polite and co-operative to the police, and pleaded guilty to the charge before the magistrate, and was then summoned to the Supreme Court for sentence, where he has maintained his plea to the charge of possession of cannabis for the purpose of supply, an offence under section 165(1) of the Drugs of Dependence Act 1989 (1989). It is accepted that he is thus exposed, under s 165(1)(d) to a $5,000 fine or imprisonment for 2 years, or both.

8. The personal circumstances of Mr Grubb are highly favourable to him. I proceed on the basis that he is to be sentenced on the basis of no criminal history, although there are some minor matters a long time ago. He is now in his 50s, a self-employed signwriter with an adult family, the youngest daughter of which it is accepted has a serious problem with illicit drugs, including heroin.

9. This is not a case where there has been a commercial dealing or a commercial purpose behind the possession, and it is that factor which distinguishes it from the cases to which I have been directed during the sentencing process.

10. Notwithstanding the absence of a commercial purpose, the version on which Mr Grubb falls to be sentenced indicates the commission of a serious offence. And let there be no doubt about it, the possession of cannabis for the purpose of supply to another person is a serious offence. It is not the case, as Mr Grubb stated he believed to be the case, that a person is entitled to cultivate or possess five plants. That view is simply wrong, and affords no basis for a defence.

11. In the ordinary way, it would seem to me to be appropriate to record a conviction and to release the offender, who has pleaded to this offence in the circumstances that apply in this case, to a suspended sentence.

12. There is no point in imposing any conditions on any such suspension, or in respect of any security that might be ordered if Mr Grubb were to be dealt with under 556A. There is no likelihood of repetition of this offence. He has been a good citizen for a long period. He has a family of which he is obviously very proud and whom he loves. So the circumstances of this particular offence are unusual.

13. There are, however, features which apply in this particular case which persuade me that it would not be appropriate in the circumstances to record a conviction, but instead deal with Mr Grubb pursuant to the provisions of s 556A of the Crimes Act 1900 (ACT).

14. Those two circumstances are the fact that if a conviction were to be recorded then, in his particular case, there is the real possibility that his punishment would be disproportionate, compared with that of a person against whom a conviction would ordinarily be recorded. The disproportionate punishment has two aspects. A conviction for a drug offence would mean that he would be unable to visit his son in the United States of America, should his son resume playing professional baseball or coaching professional baseball in the United States. And also it may have a serious effect on his employment, concerning contracts with the government for signs in his signwriting business.

15. These two features are such as to persuade me that it is appropriate in the circumstances here, notwithstanding the objective seriousness of the offence, to deal with Mr Grubb pursuant to section 556A.

16. Mr Grubb, would you stand up?

17. I am satisfied that the charge to which you have pleaded guilty in the Magistrates Court and which you have affirmed today is proven. Having regard however to your character, antecedents and age, and the extent to which the offence was committed under extenuating circumstances - that is to say, I am satisfied that the cannabis was not grown by you and your purpose was not to engage in any commercial dealing with it - it is in my opinion inexpedient to inflict any punishment, so without proceeding to conviction, I order and direct that you be discharged, upon your giving security self in the sum of $2,000 by recognizance that you be of good behaviour for a period of 2 years from today.

18. I tell you that if during that period you fail to be of good behaviour, a summons may be issued directing you to appear before the Supreme Court to be dealt with by the court under the provisions of section 556A, which means that you can be punished by being sent to prison for the offence with which I am dealing with you now. Do you understand?

19. THE PRISONER: Yes, sir.

20. HIS HONOUR: I indicate that I have taken into account the provisions of ss 429 and 429A of the Crimes Act 1900 (ACT). And let there be no mistake, I am not, by dealing with you as I have, giving any signal or indication that the possession of cannabis for supply to others is not a very serious offence.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice J.E.J. Spender

Associate:

Date: 2001

Counsel for the Plaintiff: Mr Todd

Solicitor for the Plaintiff: Director of Public Prosecutions

Counsel for the Defendant: Mr Doig

Solicitor for the Defendant: Legal Aid ACT

Date of hearing: 4 May 2001

Date of judgment: 4 May 2001