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District Court 1 November 2019

R v Prior

[2019] NSWDC 870

Drugs
SENTENCING DRUG SUPPLY (CANNABIS) RELEVANT FACTORS ON SENTENCE LATE PLEA DISPUTED FACTS NEED FOR THERAPY

Citation: R v Prior [2019] NSWDC 870
Court: District Court of New South Wales
Date: 1 November 2019
Judge: Haesler SC DCJ

Background

Police attended a residential property in Coniston, NSW, in June 2017 after receiving information it was being used to cultivate cannabis. At the front door, detectives noticed a humming sound and the faint smell of cannabis. The occupant, the offender, admitted he was growing cannabis inside and allowed police entry, which led to the discovery of two large hydroponic growing rooms containing 12 cannabis plants, each between two and 2.5 metres tall and in full bloom.

A subsequent search of the premises uncovered approximately 1,719 grams of cannabis leaf, $4,000 in cash, a money-counting and note-authentication device, a commercial cannabis trimming machine, a CCTV surveillance system, and an extensive electronic control room housing transformers, pumps, digital ballast boxes, and automated watering equipment. The offender told police the setup was entirely his own and that the cannabis was for personal use.

The offender initially contested the lawfulness of the police attendance and was committed to trial. On the day fixed for trial, he pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985 (NSW): cultivating cannabis by enhanced indoor means for a commercial purpose (Count 1, maximum 15 years), and supplying a prohibited drug (Count 2, maximum 10 years). A disputed facts hearing followed, with the central contest being the true purpose of the cultivation and the reliability of expert opinion evidence about yield, value, and commercial intent.

  • Whether the court could accept the expert opinion evidence of the police detective regarding cannabis yield, value, and commercial purpose, and how conflicting expert opinions should be resolved at sentence
  • Whether the prosecution had proved, on the balance of probabilities, that the cultivation and possession of cannabis leaf were for a commercial purpose rather than personal use
  • What weight to give to the late guilty pleas and the offender's disputed assertions at the scene
  • Whether the purposes of criminal sentencing, including general deterrence, community safety, and rehabilitation, could be met by an Intensive Correction Order rather than full-time custody

Decision

Disputed expert evidence. The court conducted a careful analysis of the competing expert opinions about the likely yield of the cannabis plants and the value of the cannabis seized. It applied the principles from Makita (Australia) Pty Limited v Sprowles and Dasreef Pty Ltd v Hawchar governing the admissibility and weight of expert opinion, and the sentencing principle from The Queen v Olbrich that disputed facts adverse to an offender must be proved by the prosecution on the balance of probabilities. Where there was genuine conflict between expert views, the court was cautious about accepting figures at the higher end of the ranges offered.

Commercial purpose. The court rejected the offender's claim that the entire operation was for personal use. The scale of the setup, including the two automated growing rooms, commercial-grade equipment, trimming machine, and surveillance cameras, along with the quantity and value of cannabis leaf found, was inconsistent with the personal use explanation. The court found the prosecution had established a commercial purpose on the balance of probabilities.

Guilty plea discount. The pleas were entered late, on the day of trial, after a substantial pre-trial contest including a voir dire on the lawfulness of the police attendance. The court applied a reduced discount for the guilty pleas, consistent with the principles in GAS v The Queen and subsequent authority, reflecting the limited utilitarian value of pleas entered so late.

Sentence. After weighing the objective seriousness of planned, commercial-scale cannabis cultivation against the offender's personal circumstances, including current employment, a medium to low risk of reoffending, and a need for therapeutic intervention, the court concluded that an Intensive Correction Order could meet the purposes of sentencing. Full-time imprisonment was not imposed, though the court noted the outcome was a close one.

Orders Made

  • Offender convicted on both counts
  • Count 1 (cultivate cannabis by enhanced indoor means): indicative sentence of 2 years and 8 months
  • Count 2 (supply cannabis leaf): indicative sentence of 1 year and 9 months
  • Aggregate sentence of 2 years and 10 months, commencing 1 November 2019, to be served by way of an Intensive Correction Order
  • Conditions of the Intensive Correction Order:
  • Good behaviour
  • Supervision by Community Corrections for as long as deemed necessary
  • Report to Wollongong Community Corrections within 7 days
  • Accept direction regarding ongoing psychological and drug rehabilitation treatment
  • Complete 250 hours of community service
  • Drug destruction order made
  • Forfeiture order in relation to cultivation equipment reserved pending consent from the other side (to be made by chambers order if consented to)

Key Takeaways

  • At sentence, disputed facts adverse to an offender must be proved by the prosecution on the balance of probabilities; where conflicting expert opinions exist, a sentencing court applies caution before adopting figures at the upper range of estimates.
  • Commercial cannabis cultivation will not be characterised as personal use simply because an offender asserts it at the scene; the totality of the circumstances, including the scale, equipment, ancillary items, and quantity of product, informs the finding of purpose.
  • A late guilty plea entered on the day of trial, after contested pre-trial proceedings, attracts only a reduced discount for its utilitarian value under the principles in GAS v The Queen.
  • An Intensive Correction Order remains available for serious, planned drug offences where individual circumstances, including rehabilitation prospects and low reoffending risk, support the conclusion that all sentencing purposes can be served in the community.
  • The District Court confirmed that the consistent application of sentencing principle requires consideration of comparable decisions, while acknowledging that the combination of factors in any individual case is unique, consistent with the High Court's guidance in The Queen v Pham.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 25(1)
- Evidence Act 1995 (NSW)

Cases
- Cahyadi v Regina [2007] NSWCCA 1, (2007) 168 A Crim R 41
- Cheung v The Queen (2001) 209 CLR 1
- Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229
- Dasreef Pty Ltd v Hawchar [2011] HCA 2, (2011) 243 CLR 588
- Fangaloka v R [2019] NSWCCA 173
- Fox v Percy (2003) 214 CLR 118
- GAS v The Queen; SJK v The Queen [2004] HCA 22, (2004) 217 CLR 198
- Karout v R [2019] NSWCCA 253
- Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
- Markarian v The Queen (2005) 228 CLR 357
- Mill v R (1988) 166 CLR 59
- Munro v R [2006] NSWCCA 350
- Pullen v R [2018] NSWCCA 26
- R v Daetz [2003] NSWCCA 216
- R v Godden [2005] NSWCCA 160
- R v Stanbouli (2003) 141 A Crim R 531
- R v Storey [1998] 1 VR 359
- Robertson v R [2017] NSWCCA 205
- The Queen v Olbrich (1999) 199 CLR 270
- The Queen v Pham [2015] HCA 39, (2015) 256 CLR 550