Citation: [2019] NSWDC 551
Court: District Court of New South Wales
Date: 13 March 2019
Judge: Judge W Hunt
Background
The offender pleaded guilty to cultivating a prohibited plant (cannabis) under s 23(1)(a) of the Drug Misuse and Trafficking Act. The prosecution also asked the court to take into account, on a Form 1, the offender's participation in a criminal group for the purpose of committing that cultivation offence, contrary to s 93T(1) of the Crimes Act.
The matter proceeded to a disputed facts hearing. The court found itself not satisfied beyond reasonable doubt that the offender was involved in three additional cultivation plots linked to the same operation. On the facts as found, the offender's involvement was limited to two sites containing a total of 77 cannabis plants.
The offender's role was accepted as being toward the lower end of the criminal hierarchy. He watered the plants and had no part in planning or constructing the sites. His motive was to receive cannabis in lieu of payment, reducing out-of-pocket costs to fund his own substantial cannabis addiction.
Legal Issues
- Whether the offender's involvement extended to three additional cultivation plots (disputed facts hearing)
- How to characterise the offender's role and the objective seriousness of his offending
- Whether the s 5 threshold for a full-time custodial sentence had been crossed, given the Form 1 matter
- Whether the offender was entitled to a full utilitarian discount for his early guilty plea, notwithstanding that he contested the facts
Decision
The court accepted the offender's account of his limited role, supported by extrinsic material and his early admissions. Objective seriousness was placed at around the boundary between the low and mid-range, not in the low range. The two cultivation sites were described as relatively sophisticated, featuring water collection mechanisms and protections against intruders and native fauna, though the offender's personal contribution to that sophistication was minimal.
On the question of the s 5 threshold (which requires a court to impose a sentence other than full-time custody only if it is satisfied that no such sentence is appropriate), the court concluded the threshold had been crossed when the Form 1 matter was brought into account alongside the number of plants and the sophistication of the operation. Without the Form 1 matter, the outcome may have been different.
The court held that the offender was entitled to a full utilitarian discount for his early plea. The court noted that where an offender challenges the facts and succeeds, that success does not dilute the utilitarian benefit otherwise available from an early guilty plea.
The court took into account a number of mitigating factors, including the offender's ongoing psychological assessment and drug treatment, his efforts toward rehabilitation and a pro-social lifestyle, his role in supporting his father in caring for his mother (who has advanced dementia), and improving prospects of part-time employment.
Orders Made
- Convicted of cultivating a prohibited plant under s 23(1)(a) of the Drug Misuse and Trafficking Act, with the Form 1 matter (participation in a criminal group) taken into account
- Sentenced to nine months imprisonment, commencing 13 March 2019 and expiring 12 December 2019, to be served by way of an Intensive Corrections Order (ICO)
- Standard ICO conditions imposed, plus two additional conditions:
- Continue drug and alcohol treatment with Dr Farina of the Illawarra Local Health Service
- Complete 100 hours of Community Service Work, reporting to the Nowra Community Corrections Office within seven days
Key Takeaways
- A disputed facts hearing that results in findings favourable to the offender does not diminish the utilitarian discount available for an early guilty plea; the District Court treated the full discount as intact because the offender's challenge to the facts succeeded.
- The Form 1 matter (participation in a criminal group) was decisive in crossing the s 5 threshold. The court indicated that without it, a Community Corrections Order might have been available.
- Objective seriousness is assessed by reference to the individual offender's actual role, not merely the overall sophistication of the operation. An offender at the lower end of the criminal hierarchy may receive a materially different assessment even where the broader scheme was complex.
- Rehabilitation evidence, including ongoing clinical treatment, family support obligations, and reduced drug use, carried meaningful weight in mitigation alongside the early plea discount.
- Under s 93T(1) of the Crimes Act, participation in a criminal group taken on a Form 1 can influence the sentence on the principal offence, including by affecting whether the full-time custody threshold is crossed.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), s 23(1)(a) (cultivation of a prohibited plant; maximum penalty ten years imprisonment and/or 2,000 penalty units)
- Crimes Act 1900 (NSW), s 93T(1) (participation in a criminal group)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for full-time custodial sentences)
Cases cited: None stated in the judgment.