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District Court 22 February 2013

R v David Lindsay JUSTIN

[2013] NSWDC 163

Drugs
CRIME SENTENCE CULTIVATION OF CANNABIS (TWO) SPECIAL CIRCUMSTANCES

Citation: R v David Lindsay Justin [2013] NSWDC 163
Court: District Court of New South Wales
Date: 22 February 2013
Judge: Murrell SC DCJ

Background

The offender pleaded guilty at the earliest reasonable opportunity to two groups of drug cultivation offences. The first arose from a police search in August 2011, when officers found 280 cannabis plants at his Casino premises, along with equipment for indoor cultivation and evidence that the electricity meter had been bypassed. No indicia of supply were located. The offender told police he grew the cannabis primarily for personal pain relief, consuming around five grams a day, and that he gave some to friends.

The second group of offences occurred in May 2012, while the offender was on bail for the first. Police executed another search warrant at a different Casino address and found 152 cannabis plants, similar growing equipment, a bypassed electricity meter, and a replica pistol. Small quantities of resealable bags and digital scales were also found, though the court was not satisfied beyond reasonable doubt that the offender intended to sell cannabis.

The offender was 45 years old with a criminal history in Victoria from the 1990s, including cannabis trafficking matters, and some NSW driving offences. Crucially, he had suffered a serious traumatic brain injury in 2006 following an assault, leaving him with ongoing cognitive, emotional, and psychological difficulties that shaped the sentencing considerations significantly.

  • What sentences were appropriate for cultivating a large commercial quantity of cannabis (280 plants) and a commercial quantity of cannabis (152 plants) by enhanced indoor means?
  • How should the offender's personal circumstances, including traumatic brain injury, medicinal use, and absence of commercial intent, bear on objective seriousness and the exercise of sentencing discretion?
  • Were special circumstances established so as to justify a departure from the standard non-parole period, resulting in an extended parole period?
  • How should the second group of offences, committed while on bail, be treated in terms of accumulation and totality?

Decision

Murrell SC DCJ assessed the objective seriousness of the first offence (280 plants, large commercial quantity) as relatively low. The quantity sat only marginally above the 200-plant commercial quantity threshold, there was no evidence of commercial intent, and supply to others was to be limited. The court accepted that the cannabis was grown predominantly for personal medicinal consumption. Despite this, the judge emphasised that general deterrence remains an important sentencing purpose even where personal use is the primary driver.

The second offence, committed on bail, was assessed as more serious. With 152 plants in a range of 50 to 200 for a commercial quantity, the quantity was substantial, and the bail context was an aggravating feature. The court was not satisfied the offender intended to sell cannabis, notwithstanding the presence of scales and bags, given the consistent background of personal medicinal use.

The offender's traumatic brain injury was a significant mitigating consideration. The court accepted that it had impaired his judgment, reduced his moral culpability, and created rehabilitative needs requiring ongoing professional support. His lengthy methadone program, history of developmental difficulties, and the absence of recent drug-related offending also weighed in his favour. The court found rehabilitation prospects were reasonable, provided adequate support was given.

Special circumstances were found to exist, warranting an extended parole period beyond the standard ratio. The effective sentence was four years imprisonment with a two-year non-parole period, reflecting the need for supervised support on release addressing brain injury treatment, psychological rehabilitation, and drug relapse prevention.

Orders Made

  • Cultivating large commercial quantity of cannabis (19 August 2011): Three years imprisonment; non-parole period 16 May 2012 to 15 May 2014; balance of term one year; sentence expires 15 May 2015.
  • Using electricity without authority (first offence): Three months imprisonment, concurrent, from 16 May 2012 to 15 August 2012.
  • Cultivating commercial quantity of cannabis (16 May 2012, including Form 1 matter): Three years imprisonment from 16 May 2013; non-parole period to expire 15 May 2014; balance of term two years; sentence expires 15 May 2016.
  • Using electricity without authority (second offence): Six months imprisonment, concurrent, from 16 May 2013 to 15 November 2013.
  • Possessing a prohibited firearm: Fixed term of one month imprisonment from 16 May 2013 to 15 June 2013.
  • Eligible for release to parole on 15 May 2014, subject to recommended parole conditions including supervision, drug rehabilitation, and treatment for traumatic brain injury.
  • Section 166 certificate matter: Convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999; no additional penalty imposed.

Key Takeaways

  • Cultivating a large commercial quantity of cannabis does not automatically attract high objective seriousness: the District Court treated this case as relatively low on that scale where the quantity was only marginally above the threshold, there was no commercial intent, and supply was limited to friends.
  • A traumatic brain injury and related cognitive and behavioural deficits can operate both to reduce moral culpability and to support a finding of special circumstances, particularly where supervised rehabilitation on release is identified as essential.
  • Committing further drug cultivation offences while on bail for similar offences is a recognised aggravating factor that elevates the objective seriousness of the subsequent offending.
  • Special circumstances were found to justify an extended parole period in circumstances where the offender required prolonged, supervised support for brain injury rehabilitation, psychological treatment, and drug relapse prevention after release.
  • Where digital scales and resealable bags are found alongside cannabis plants, the court will not automatically infer an intention to supply commercially: the surrounding context, including consistent evidence of personal medicinal use, remained relevant to the standard of proof required for that finding.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A and s 166

Cases cited: None stated in the judgment.