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District Court 18 February 2020

R v Greenslade

[2020] NSWDC 805

Drugs
CRIMINAL LAW SENTENCE IN COMPANY LIMITED SOPHISTICATION NO EXCEPTIONAL CIRCUMSTANCES

Citation: R v Greenslade [2020] NSWDC 805
Court: District Court of New South Wales
Date: 18 February 2020
Judge(s): Judge W Hunt

Background

The offender, a 65-year-old Queensland resident, owned a semi-rural property of approximately 2,500 acres at Torrington in New South Wales, which he visited around six times per year. During a bushfire on the property in March 2019, NSW Rural Fire Service officers discovered a cannabis crop. Police subsequently obtained and executed a search warrant, locating 110 mature cannabis plants in a chicken-wire enclosure and additional dried cannabis material in a machinery shed, with a net usable weight of approximately 17.32 kilograms.

The offender attended a police station and gave a lengthy, cooperative record of interview. He admitted he knew his co-accused (who remained at large at the time of sentencing) intended to grow cannabis on the property and did not object. He also admitted to advising on which plants to cull, assisting with fertilising, cutting buds, and helping pack cannabis, as well as taking a small amount home to give to friends at parties.

The offender faced two charges: cultivating cannabis in an amount greater than the indictable quantity but less than the commercial quantity, and taking part in the supply of a prohibited drug in an amount greater than the commercial quantity.

  • How should objective seriousness be assessed for each offence given the limited scale and unsophisticated nature of the operation?
  • What weight should be given to the offender's full and frank admissions under the principles in R v Ellis (1986) 6 NSWLR 603?
  • What discount applied to any penalty for the offender's utilitarian guilty plea?
  • What sentencing disposition was appropriate in light of the offender's personal circumstances, low risk of reoffending, lack of financial motive, and Queensland residency?
  • Whether, given that each offence would otherwise have fallen within Local Court jurisdiction, that fact was a relevant factor in sentencing, consistent with R v Todd (1982) 2 NSWLR 517?

Decision

Judge Hunt assessed the objective seriousness of both offences as sitting toward the lower end of the range, though not at the very lowest. The cultivation involved 110 plants (against a Local Court jurisdictional maximum of 250) in a relatively unsophisticated setup close to the main residence. The supply charge was largely a deemed supply arising from the cannabis weight, and but for the stem material, both charges would have fallen within Local Court jurisdiction. Consistent with R v Todd, the court treated that fact as a relevant sentencing consideration without considering itself strictly bound by the Local Court's two-year imprisonment limit.

The Ellis principles applied differently to each charge. In relation to cultivation, the offender would likely have been identified as the property owner regardless of his admissions, though his candour about additional involvement actually increased his assessed culpability. A reduction in penalty was nonetheless warranted. For the supply charge, the Ellis principles operated more powerfully: without the offender's admissions, a supply conviction would have been very unlikely. Accordingly, a significant reduction was justified for that offence.

The court also weighed the offender's strong personal circumstances: seven character references, his sole carer role for an elderly mother, no prior criminal history, a Sentencing Assessment Report rating him at low risk of reoffending, and evidence that he had no meaningful financial motive for the offending. His Queensland residency also limited the practicality of community-based orders requiring ongoing reporting in New South Wales, though the court noted that option was available and considered it.

Having regard to all of those factors, including a 25 per cent utilitarian discount applied to each matter, the court imposed a Conditional Release Order for the cultivation offence and a fine, after discount, of $3,700 for the supply offence. The court was satisfied that the objective seriousness of the offending, even on a favourable characterisation, required convictions to be recorded on both counts.

Orders Made

  • Cultivation offence: Conviction recorded; Conditional Release Order imposed requiring good behaviour for 18 months, notification of any change of address to the court registry, and appearance for sentence if called upon.
  • Supply offence: Conviction recorded; fine of $3,700 imposed (reflecting a reduction from a starting point of $5,000 after the 25 per cent utilitarian discount, with regard also to limited financial motivation and Ellis factors); no further restriction on liberty.

Key Takeaways

  • The District Court confirmed that, consistent with R v Todd, the fact that individual charges would otherwise have fallen within Local Court jurisdiction is a relevant factor in the sentencing exercise, even though it does not bind the District Court to that court's two-year imprisonment ceiling.
  • The Ellis principles (which recognise that admissions facilitating a prosecution may warrant a sentencing discount) operate with particular force where, without those admissions, a conviction would have been very unlikely. The court applied them more substantially to the supply offence than to the cultivation offence for that reason.
  • A full and frank record of interview that raises an offender's assessed culpability beyond what discovery alone would have established can still attract an Ellis reduction, because the admissions nonetheless assisted the administration of justice.
  • Low objective seriousness, unsophisticated offending, absence of financial motive, strong community ties, a caring role for an elderly parent, and a low risk of reoffending collectively supported lenient dispositions, including a Conditional Release Order and a moderate fine rather than any custodial term.
  • Convictions were recorded in both instances, with the court finding that the seriousness of the offending, even at the lower end of the range, made it inappropriate to proceed without recording them.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 25(2)
- Criminal Proceedings Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8

Cases
- R v Edwards [1999] NSWCCA 411
- R v Ellis (1986) 6 NSWLR 603
- R v Todd (1982) 2 NSWLR 517