Citation: [2021] NSWDC 154
Court: District Court of New South Wales
Date: 2 March 2021
Judge: Bourke SC DCJ
Background
The offender pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985: cultivating 123 cannabis plants at a commercial quantity (sequence 4), and supplying approximately 81.6 grams of cannabis leaf (sequence 5). The offences arose from a police search of a North Kellyville residential property in May 2020, where officers discovered a sophisticated hydroponic grow operation occupying a partitioned and converted garage.
The garage contained two separate grow rooms housing the cannabis plants, fitted with heat lamps and exhaust fans. Police also found cannabis leaf in three separate locations on the property, including inside a sealed package addressed to a person interstate bearing the offender's return address. The offender's fingerprints were found on 11 locations on the hydroponic equipment.
At the time of the offending, the offender was unemployed and, according to the Sentencing Assessment Report, had acknowledged growing cannabis to make money after suffering financial difficulties following a motorcycle accident in 2019.
Legal Issues
- What was the appropriate characterisation of the offender's role, particularly whether the cultivation was principally for personal use or was a commercial enterprise?
- What weight should be given to the early guilty plea in reducing the sentence?
- Whether special circumstances existed to justify varying the standard ratio of non-parole period to head sentence.
- What aggregate sentence was appropriate across both offences, and to what extent should the sentences be served concurrently?
Decision
The offender claimed at sentence that he cultivated the cannabis primarily to produce concentrated oil for personal medicinal use, and that any sales to friends had been minor. The court rejected this characterisation. The quantity of 123 plants was inconsistent with personal use, no cannabis oil or oil-production equipment was found at the property, and the Sentencing Assessment Report recorded the offender's own admission that he grew cannabis to make money. Text messages recovered from his phone, including one discussing pricing and supply of cannabis, further undermined the personal use claim.
The court found that, while some of the crop may have been for the offender's personal use, the operation was in large part a commercial enterprise and the offender was its principal. The court was clear, however, that the offender was being sentenced only for the offences to which he pleaded guilty, not for the broader drug dealings referenced in the text messages.
The sequence 5 supply offence was treated as largely part of a single transaction with the cultivation offence, given the cannabis leaf found at the property was a product of the same grow operation. Accordingly, the sentences were ordered to be substantially, though not completely, concurrent. The court imposed an aggregate sentence rather than individual consecutive terms.
Special circumstances were found to justify a longer-than-standard parole period, based on three factors: this was the offender's first period of custody; he had psychological conditions that would make imprisonment more difficult; and a lengthy period of post-release supervision on parole was considered necessary.
Orders Made
- Aggregate sentence of three years and two months' imprisonment, with a non-parole period of one year and seven months, commencing 2 March 2021.
- Head sentence to expire 1 May 2024; non-parole period to expire 1 October 2022.
- A 25% discount applied to both offences on account of the early guilty plea.
- Indicative sentence for sequence 4 (cultivation): three years' imprisonment after discount.
- Indicative sentence for sequence 5 (supply): 13 months' imprisonment after discount.
- Copy of the psychological report directed to be sent to Corrective Services and Justice Health.
Key Takeaways
- A personal use defence to commercial-scale cannabis cultivation will not succeed where the quantity of plants, text message evidence, product found in multiple locations, and the offender's own admissions collectively indicate a profit-driven enterprise.
- Under the Drug Misuse and Trafficking Act 1985, cultivating a prohibited plant in a quantity not less than the commercial quantity carries a maximum penalty of 15 years' imprisonment, and supply carries a maximum of 10 years; these maxima serve as important guideposts in the sentencing exercise.
- Where harvested cannabis leaf found on the premises is a product of the same cultivation operation, a sentencing court may treat the supply offence as part of a single transaction and order largely concurrent sentences.
- Special circumstances justifying a departure from the standard non-parole ratio can arise from a combination of first-time custody, diagnosed psychological conditions, and the anticipated need for extended post-release supervision.
- The District Court confirmed that drug quantity is one relevant factor in assessing objective seriousness, but courts must avoid attaching disproportionate weight to it in isolation.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1)
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases: No specific cases were cited in the judgment text provided.