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Supreme Court 18 November 2016

R v Zanker

[2016] NSWSC 1653

Drugs
CRIMINAL LAW SENTENCE CANNABIS GUILTY PLEA SPECIAL CIRCUMSTANCES

Citation: R v Zanker [2016] NSWSC 1653
Court: Supreme Court of New South Wales
Date: 18 November 2016
Judge: Fagan J

Background

The offender pleaded guilty to knowingly taking part in the cultivation of 664 cannabis plants, a quantity not less than the large commercial quantity, at a property in Schofields on 27 July 2014. The charge was brought under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 20 years imprisonment or 5,000 penalty units ($550,000), or both.

Police from the State Crime Command Drug Squad executed a search warrant on an industrial shed at Schofields and discovered a sophisticated two-level, multi-room hydroponic cannabis plantation. The shed was fitted with artificial lighting, an irrigation system, insulated walls, and trimming rooms. An agronomist identified 664 plants at various stages of growth, with a potential street value estimated by police at just under $3 million.

The offender, who was approximately 24 years old when the operation began in 2013, was recruited as a labourer by the enterprise's principals. He lived on site, worked approximately six eight-hour days per week, and performed tasks including watering, fertilising, cloning, and trimming. He was paid $500 per week once revenue from the first harvest began, and was permitted to keep trimmed cannabis resin for his own use. Three co-workers, including the principal Donald Cameron, had been sentenced separately in September 2016.

  • What sentence was appropriate for an offender who was a labourer (not a principal) in a large commercial cannabis cultivation operation?
  • How should the offender's role and culpability be assessed relative to co-offenders already sentenced?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify adjusting the ratio of the non-parole period to the total sentence.
  • What weight should be given to the guilty plea, the offender's background, his personal circumstances, and his rehabilitation prospects?

Decision

Fagan J assessed the objective seriousness of the offending as very substantial. The operation was planned, conducted in concert, sustained over many months, and generated significant revenue for the principals. Although the offender was a labourer rather than a principal, his role was central: he lived on site throughout the operation, worked longer hours than some co-offenders, and was involved in multiple aspects of the enterprise from its establishment.

His Honour compared the offender's conduct to that of co-workers Wilkinson and Forward, who had been sentenced in R v Cameron [2016] NSWSC 1342. The offender's objective culpability was found to be greater than either of those two men, as he had been on site for longer and worked more hours than Forward.

Turning to subjective factors, Fagan J noted the offender's disadvantaged upbringing, limited education, long history of cannabis use (described as commencing at age 12), and receipt of a disability benefit. These factors, combined with the need for an extended supervision period on parole to assist rehabilitation, constituted special circumstances warranting a departure from the standard non-parole to total sentence ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The guilty plea, entered at the earliest opportunity, attracted a 25 per cent reduction in sentence. Fagan J accepted that the plea also demonstrated remorse and recognition of guilt, and noted cautious optimism about rehabilitation, though the offender's entrenched involvement in cannabis from a young age and limited employment history were acknowledged as significant obstacles.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 2 years 6 months, commencing 2 March 2015 and expiring 1 September 2017.
  • A balance of term of 1 year 3 months was imposed, commencing 2 September 2017 and expiring 1 December 2018.
  • The offender was to be released on parole at the expiry of the non-parole period, subject to any remand in custody or unexpired non-parole period in respect of any other sentence then being served.

Key Takeaways

  • A labourer in a large commercial cannabis operation may still attract significant objective criminality where their role was sustained, central, and conducted in planned concert with others, even if they contributed no capital and worked under direction.
  • Relative culpability among co-offenders matters: the sentencing court compared the offender's time on site and hours worked against already-sentenced co-workers to calibrate a fair and consistent penalty.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), special circumstances can be established by a combination of personal disadvantage, an extensive history of substance dependence, and the need for extended post-release supervision to support rehabilitation.
  • A 25 per cent sentencing discount applied to the guilty plea entered at the earliest opportunity, consistent with established principle.
  • Entrenched cannabis use from a young age and limited employment history were treated as contextual factors relevant to rehabilitation prospects, rather than as matters that increased or reduced the objective gravity of the offending itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 33(1), 33(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- R v Cameron [2016] NSWSC 1342