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District Court 23 July 2020

R v Govender

[2020] NSWDC 551

Drugs
CRIME DRUG OFFENCE RELATIVELY SMALL NUMBER OF PLANTS SMALL SCALE OPERATION PROFIT THE ONLY MOTIVE FIRST OFFENDER

Citation: R v Govender [2020] NSWDC 551
Court: District Court of New South Wales
Date: 23 July 2020
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to commercial cultivation of cannabis plants by enhanced indoor means. Police had obtained a lawful telephone intercept in 2019, which recorded conversations between the offender and a co-offender discussing the cultivation and sale of cannabis. Those recordings revealed that the offender's primary motivation was raising money, most likely to pay gambling debts, though the prospect of profit was also a factor.

When police executed a search warrant at the co-offender's Berkeley property, they found a detached shed fitted with a hydroponic setup, artificial lighting, and growing tents. The shed contained five large cannabis plants and thirteen smaller plants. The offender had obtained the seeds by mail order from overseas.

The sentencing hearing proceeded in the District Court after the offender had spent approximately two and a half months in pre-sentence custody and a further five months at Odyssey House, a residential rehabilitation facility, which the court characterised as "quasi custody."

  • What sentence was appropriate for a first offender who pleaded guilty early to a small-scale commercial cannabis cultivation operation?
  • How should the court weigh the commercial nature of the offence against the offender's demonstrated rehabilitation, personal circumstances, and time already served?
  • Whether a sentence of imprisonment served by Intensive Correction in the Community (ICO) was appropriate rather than full-time custody.

Decision

Haesler SC DCJ identified the commercial character of the cultivation as the central aggravating factor requiring a custodial sentence. Although the plant numbers were at the lower end of the range for matters of this type before the District Court, the judge noted the significant profit potential of even a small number of cannabis plants and the community harm associated with the illicit drug trade. General deterrence was a primary consideration.

The starting point was two and a half years' imprisonment. A 25% reduction was applied to reflect the early guilty plea entered in the Local Court, reducing the sentence to one year and ten months. The court then applied a further reduction to account for the two and a half months spent in pre-sentence custody and the five months at Odyssey House. The Odyssey House period was treated as equivalent to approximately two and a half months in custody (calculated at a 50% equivalence rate). After rounding down, the resulting sentence was one year and five months.

The court accepted that the offender had made genuine and substantial progress in rehabilitation. Reports from Odyssey House were described as "glowing," and the offender held a responsible position within the program having completed stages one and two. His family support remained intact. Against that background, Haesler SC DCJ concluded that returning the offender to full-time custody would not serve the community interest, a conclusion the Crown did not oppose.

An ICO was accordingly imposed, allowing the sentence to be served in the community subject to strict conditions, including completion of the residential alcohol program, abstinence from illicit drugs, drug testing, and compliance with Community Corrections directions. The court made clear that any serious breach could result in the offender being returned to custody to serve the balance of the sentence.

Orders Made

  • The offender sentenced to imprisonment for one year and five months, to be served by Intensive Correction in the Community.
  • Standard conditions applied, including good behaviour and no further offending.
  • Additional conditions under s 73A(2):
  • Complete the residential alcohol program to the satisfaction of program staff.
  • Abstain from illicit drugs and consent to testing.
  • Report to the Community Corrections Office at Wollongong upon release from Odyssey House.
  • Obey all directions of Community Corrections, particularly regarding drug and alcohol programs and follow-up support (such as Narcotics Anonymous attendance).
  • Any serious breach may result in referral to the State Parole Authority, with the offender potentially required to serve the balance of the one year and five month sentence in custody.

Key Takeaways

  • The District Court confirmed that the commercial nature of a cannabis cultivation operation is a principal sentencing consideration requiring a custodial disposition, even where the scale of the operation is small relative to comparable cases.
  • A 25% reduction in the otherwise appropriate sentence was applied to reflect an early guilty plea entered at the Local Court stage.
  • Time spent in a residential rehabilitation facility (Odyssey House) was treated as quasi custody and credited against the sentence, with the court adopting a 50% equivalence rate between Odyssey House attendance and full-time custody.
  • Demonstrated rehabilitation, intact family support, and the absence of community benefit in returning the offender to full-time gaol were collectively sufficient to support an ICO rather than full-time imprisonment, with the Crown raising no objection to that course.
  • Where an offender has already responded positively to rehabilitation programs, the sentencing court may treat continued engagement with those programs as a condition of an ICO rather than requiring return to custody, provided general deterrence and appropriate punishment are otherwise satisfied.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 73A(2) (conditions for Intensive Correction Orders)

Cases:
No cases were cited in the judgment.