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District Court 18 December 2020

R v Hyland

[2020] NSWDC 933

Drugs
CRIME SENTENCE SENTENCE OF IMPRISONMENT

Citation: R v Hyland [2020] NSWDC 933
Court: District Court of New South Wales
Date: 18 December 2020
Judge(s): Neilson DCJ

Background

A 71-year-old woman and her adult son appeared together for sentencing on charges arising from the indoor hydroponic cultivation of cannabis at a residential property in Bexley North, Sydney. The woman was the lessee and occupier of the premises. Her son had moved in with her after she was the victim of a home invasion, and she ultimately permitted him to establish a cannabis growing operation inside the property.

Police executed a search warrant on 29 January 2020 and discovered 117 cannabis sativa plants, a converted growing room with heat lamps, self-watering systems, and charcoal ventilation filters. A small number of plants were located in the woman's own bedroom. The total quantity was not less than the commercial quantity applicable under the relevant legislation.

The woman pleaded guilty on the basis that she had permitted the cultivation to occur, thereby "taking part" in the cultivation within the meaning of section 6(c) of the Drug Misuse and Trafficking Act 1985 (NSW). Her son acknowledged she took no active role in the growing operation and that he had used her position as lessee to maintain the plantation.

  • What head sentence was appropriate for the offence of cultivating, or knowingly taking part in the cultivation of, a commercial quantity of cannabis?
  • Whether the statutory 25% discount for an early guilty plea applied.
  • Whether the circumstances of the offending and the offender's personal background justified a departure from full-time custody in favour of an Intensive Correction Order (ICO).

Decision

Neilson DCJ accepted that some form of custodial sentence was required. His Honour noted that, in his experience, those who permit their homes to be used for the cultivation of prohibited plants must receive a custodial sentence. The starting head sentence was two years' imprisonment, reduced by 25% to 18 months following the statutory discount for the early guilty plea entered at the first available opportunity.

Despite the custodial threshold being met, his Honour found that the particular circumstances of this case did not require full-time imprisonment. The court weighed the offender's age, prior good character across 71 years, health conditions, genuine contrition, and the onerous bail conditions she had already endured since her arrest. Her current living arrangements, in which she was providing meaningful support to her granddaughter and the granddaughter's other grandmother, also bore on the assessment.

The court further noted the background circumstances that contributed to her vulnerability: a history of serious domestic abuse across two marriages, the traumatic home invasion in 2018 that caused her to fear living alone, and the resulting manipulation by her son that led to her permitting the cultivation. These factors, taken together, distinguished her case from the ordinary run of commercial cultivation offending.

An Intensive Correction Order was imposed, requiring supervision by community corrections, abstention from drugs, and reporting to the Wollongong Community Corrections Office within four business days.

Orders Made

  • The offender was convicted of cultivating, and knowingly taking part in the cultivation of, a commercial quantity of cannabis (between 15 January 2020 and 29 January 2020 at Bexley North).
  • Sentenced to 18 months' imprisonment, to be served by way of an Intensive Correction Order in the community under section 8 of the Crimes (Sentencing Procedure Act) 1999 (NSW).
  • Conditions of the order: must not commit any offence; must submit to supervision by a community corrections officer; must abstain from drugs; must report to Wollongong Community Corrections Office within four business days.

Key Takeaways

  • The District Court confirmed that permitting residential premises to be used for the cultivation of a commercial quantity of prohibited plants ordinarily warrants a custodial sentence, even where the occupier played no active role in the physical growing operation.
  • A 25% statutory discount on sentence applies where a guilty plea is entered at the earliest available opportunity under the Crimes (Sentencing Procedure Act) 1999 (NSW).
  • Exceptional personal circumstances, including advanced age, prior good character, a history of victimisation, genuine remorse, and demonstrated community contribution, can justify departing from full-time custody in favour of an Intensive Correction Order even in commercial-quantity drug cultivation matters.
  • "Taking part in" cultivation under section 6(c) of the Drug Misuse and Trafficking Act 1985 (NSW) extends to an occupier who passively permits cultivation on their premises, without any requirement for active participation in the growing process.
  • Extra-curial hardship, including the burden of onerous bail conditions endured between arrest and sentence, is a relevant mitigating consideration in determining the appropriate custodial outcome.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 6(c)
- Crimes (Sentencing Procedure Act) 1999 (NSW), s 8

Cases cited: None cited in the judgment.