STATE OF TASMANIA v ANDREW LESLIE IRVING 24 MARCH 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Irving has pleaded guilty to one count of trafficking in cannabis, contrary to s 12(1) of the Misuse of Drugs Act. Cannabis is a controlled drug for the purposes of the Act. The particulars of the charge are that at Oatlands, between 21 May 2020 and 7 July 2022, Mr Irving operated a business, trafficking in cannabis. Mr Irving has also pleaded guilty to some summary offences which are before the Court, under s 385A of the Criminal Code. They are as follows:
- Possession of an unregistered firearm;
- Failure to comply with prescribed storage of ammunition requirements;
- Failure to comply with storage of firearm requirements; and
- Possession of cannabis on 8 July 2022.
The first three matters arose under the Firearms Act 1996, and the possession of drug charge arose under the Misuse of Drugs Act.
Between May 2020 and July 2022, Mr Irving conducted a business dealing in cannabis products, exclusive for medicinal purposes. Although described as a business, there is no evidence that it was a profitable one. In the period 31 March to 6 July 2022, he sent 32 items by Express Post to people who had ordered cannabis or cannabis products from him. He received payment by direct debit into a bank account operated by him. In the period May 2020 to July 2022, Mr Irving received just over $42,000 in respect of cannabis and cannabis products sold by him.
When police conducted a search on Mr Irving’s premises on 8 July 2022, they found just in excess of three kilograms of cannabis, a trafficable quantity of cannabis is one kilogram. However, the low level of sales, being approximately $42,000 over two years, indicates that Mr Irving’s operation was very small scale. There is no evidence of trafficking for the purpose of supplying cannabis for recreational purposes and, as previously indicated, there is no evidence that the operation was profitable.
At the time of the offending, it was exceedingly difficult for people in dire pain to seek relief by the use of medicinal cannabis. So much was especially so in Tasmania, more than anywhere else in the country.
Police found $4,000 cash located in a safe, in a hallway cupboard, at Mr Irving’s premises. They also found an unregistered .22 rifle, stored incorrectly in a hallway cupboard, and a box of ammunition on the kitchen table. They also located cannabis plants growing in a green house, some cannabis in a hot house and 32 cannabis seeds. Mr Irving told police that he found the .22 rifle when he moved into the Oatlands premises in late March 2022, behind an old gun safe, which he had removed. He could not explain why he did not store it in his then recently installed gun safe.
When interviewed by police, Mr Irving was co-operative and made appropriate admissions. His interest in medicinal cannabis arose from his wife’s illness, with a degenerative neurological condition, in which relief of her pain was aided by medicinal cannabis. Mr Irving went public with what happened to his wife and the benefit of that assistance. His wife also wanted him to assist others, however Mr Irving had no medical qualifications to enable to discern which of his customers were appropriate ones, from a medical point of view, to receive medical cannabis. However, on the other hand, there was no evidence that anyone was harmed as a result of medical cannabis supplied by him.
Mr Irving’s interest in assisting others resulted in him undertaking a business in supplying medical cannabis. Although his actions had some very commendable noble aspects to them, it can not be denied that he did sell cannabis products over a period of just on two years, in breach of the law. The Misuse of Drugs Act makes no distinction in the nature of the drugs trafficked. However, the insidious nature of methylamphetamine has seen much higher penalties in recent years for trafficking in that drug, than the penalties imposed for trafficking in cannabis. Even so, there is little evidence of large scale medicinal cannabis trafficking when compared to trafficking in cannabis for recreational reasons.
Mr Irving’s plea of guilty came after lengthy negotiations between the State and his lawyers. The offences occurred over three years ago. The State and Mr Irving’s counsel can see that no particular blame can be cast on any particular party in respect of that matter. The guilty plea is indicative, in my view, of Mr Irving’s remorse in relation to the charges.
Specific deterrence does not loom large in the current circumstances, compared with general deterrence. Mr Irving has not been involved in trafficking cannabis since the police visited his property and is unlikely to ever do so again. He has also suffered as a result of being charged in that it led to an attempted suicide as a consequence, and his other health issues were exacerbated. The Court also has regard to Mr Irving’s advanced age, being 74 years old, and recent medical evidence of his poor physical health, and also evidence, going back a couple of years ago, of his mental health. It is well known that mental health issues are not things that necessarily disappear easily. He is also a person of generally good character, as can be seen from references provided by persons who he assisted to overcome pain.
Nonetheless, general deterrence requires that a significant sentence be imposed in the circumstances. The effect of any sentence to be imposed must take into account also the utilitarian benefit of the plea of guilty, co-operation with the police, and the making of appropriate admissions. Further, Mr Irving has no prior convictions and there is no suggesting that the offending under the Firearms Act was related in any way to his selling cannabis.
Given the poor health of Mr Irving and his primary motivation of helping people who, like his deceased wife, were able to benefit from medicinal cannabis, this is a matter where it is appropriate for the Court to take into account mercy as a criterion in this sentence. The Court will impose a global sentence, taking into account the indictable offence and the summary matters. The Court convicts Mr Irving of the offences to which he has pleaded guilty and sentences him to a period of 12 months’ imprisonment, which is wholly suspended on the condition that he commit no offence punishable by imprisonment for a period of two years from today.
Pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993, and s 16 thereof, the $4,000 in cash that was seized by Tasmania Police at [address redacted] on 8 July 2022, be forfeited to the State of Tasmania.
The second ancillary order is that Mr Irving pay to the State of Tasmania a pecuniary penalty, pursuant to s 11(1)(b) of the Crime (Confiscation of Profits) Act, in the amount of $42,454.39.
Pursuant to s 38 of the Misuse of Drugs Act, the Court orders that the following items on the Property Seizure Record 190062, be forfeited to the State of Tasmania:
- Item 4 – blue iPhone;
- Item 7a – medium snap lock bag;
- Item 7c – medium snap lock bag;
- Item 10 – Woolworths shopping bag;
- Item 11 – 2 litre juice bottle containing cannabis water;
- Item 13 – iPad in blue/black case;
- Item 14 – purple/black plastic bag;
- Item 14a – large snap lock bag with “Andrew Irving” label’;
- Item 14aa – medium snap lock bag;
- Item 14ab – medium snap lock bag;
- Item 14ac – medium snap lock bag;
- Item 14b – large snap lock bag;
- Item 17 – medium snap lock bag;
- Item 22 – 2 x droplet containers;
- Item 23 – yellow tub;
- Item 24 – 70 x 100ml amber glass jars in bubble wrap;
- Item 25 – 6 x 10 packs of 50ml amber glass jars;
- Item 26 – 39 x 60ml glass jars;
- Item 36 – containers/vials;
- Item 37 – AustPost receipts; and
- Item 40 – Silver HP laptop.
Finally, the Court also orders, pursuant to s 149 of the Firearms Act 1996, that the unregistered .22 rifle and the 8 x 22 ammunition, located by police at Mr Irving’s property, be forfeited to the State.