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District Court 7 November 2014

R v Heffernan

[2014] NSWDC 302

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES CULTIVATING A PROHIBITED PLANT SUPPLYING A PROHIBITED DRUG GREATER THAN COMMERCIAL QUANTITY

Citation: R v Heffernan [2014] NSWDC 302
Court: District Court of New South Wales
Date: 7 November 2014
Judge: Cogswell SC DCJ

Background

The offender, a 51-year-old mine plant operator with 33 years of continuous employment, pleaded guilty to cultivating a prohibited plant (cannabis) and supplying a prohibited drug in a commercial quantity. He had no meaningful criminal history, with only a drink-driving conviction from nearly three decades earlier.

The offending took place on his parents' rural property near Singleton. The offender had been financially supporting his parents for years as they struggled to sell their farm, and he conceived the idea of growing cannabis to raise approximately $40,000 to prepare the property for sale. He purchased seeds online from England, planted them on the farm, and was discovered by police who attended the property for an entirely unrelated reason. At that point, police found cannabis plants, drying branches, processed cannabis heads, vacuum-sealed bags, and $1,400 in cash.

Police seized 32.8 kilograms of cannabis leaf and head, 12 cannabis plants, and the cash. The offender co-operated immediately and fully with police, admitting responsibility and showing officers the grow site. The quantity seized exceeded the commercial threshold of 25 kilograms under the relevant legislation, though not by a large margin.

  • What was the appropriate head sentence for cultivating a prohibited plant (maximum 10 years) and supplying a prohibited drug in a commercial quantity (maximum 15 years)?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify adjusting the ratio between the head sentence and the non-parole period below the standard three-quarters proportion.
  • What weight should be given to the offender's personal circumstances, character, remorse, and the motivation behind the offending?
  • Whether the offending constituted "trafficking" for the purposes of sentencing characterisation.
  • What discount applied for a plea of guilty entered at the earliest opportunity?

Decision

Cogswell SC DCJ characterised the offences as objectively serious and described the enterprise as a "sophisticated commercial operation," noting that the offender had researched cultivation online, sourced seeds internationally, and was in the process of organising a bulk buyer at the time of his arrest. The court observed that more than 30 kilograms of cannabis entering the community posed a real danger, particularly to young people, and that financial hardship, however genuine, did not excuse the conduct.

At the same time, the court gave substantial weight to the offender's personal circumstances and character. References from long-standing associates, letters from family members, and the offender's own evidence in the witness box all supported a finding of exemplary character. The court accepted that the offender's remorse and contrition were genuine and clearly expressed. His age, the fact this was his first time in custody, and his very good prospects of rehabilitation were all treated as significant mitigating factors.

The court applied a 25% discount to reflect the plea of guilty entered at the earliest opportunity. It also found special circumstances warranting a reduction of the non-parole period to 50% of the head sentence, rather than the standard 75%. The primary reasons were the offender's excellent rehabilitation prospects, obvious contrition, age, and the fact that this was his first experience of imprisonment.

The court expressly declined to treat the offending as "trafficking" in the sense discussed in Livas v R, noting that while the enterprise was commercially motivated and sophisticated, the characterisation had to be assessed carefully in light of the particular facts.

Orders Made

  • Convicted of cultivating a prohibited plant contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW).
  • Convicted of supplying a prohibited drug in a commercial quantity contrary to s 25(2) of the same Act.
  • Head sentence of 2 years and 8 months imprisonment, commencing the Monday before sentencing.
  • Non-parole period of 1 year and 4 months (16 months), expiring 2 March 2016, at which point the offender was to be released on parole.
  • Parole period of a further 1 year and 4 months, with the sentence expiring 2 July 2017.
  • Parole conditions: notify the court registrar of residential address and any change; attend court if required by notice; no supervision required.
  • The goods-in-custody matter (possession of $1,400) taken into account on a Form under s 32 of the Crimes (Sentencing Procedure) Act 1999.
  • The $1,400 forfeited to the State.
  • Cannabis the subject of the proceedings ordered to be destroyed under s 39P of the Drug Misuse and Trafficking Act 1985.

Key Takeaways

  • Genuine financial hardship and an otherwise exemplary character can attract significant weight in mitigation at sentencing, but they do not reduce the objective seriousness of large-scale commercial cannabis cultivation and supply.
  • A plea of guilty entered at the earliest opportunity attracted a 25% discount on sentence, consistent with established sentencing practice in New South Wales.
  • Special circumstances justifying a reduction of the non-parole period below the standard three-quarters ratio were established where the offender had clear rehabilitation prospects, genuine contrition, was of advanced age relative to first-time custody, and had no prior criminal history of substance.
  • The District Court treated the quantity of cannabis (32.8 kg) as relevant to objective seriousness, while also noting that it exceeded the commercial threshold only modestly, making that margin a factor in the offender's favour.
  • Full and immediate co-operation with police, combined with a clearly expressed and credible expression of remorse, formed part of the factual foundation for the sentencing outcome, though they did not alter the fundamental characterisation of the enterprise as a sophisticated commercial operation.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 25(2), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2), 32, 50

Cases:
- Livas v R [2006] NSWCCA 54