Citation: R v Eyles [2021] NSWDC 300
Court: District Court of New South Wales
Date: 12 March 2021
Judge(s): M L Williams SC DCJ
Background
The offender, a 55-year-old man with limited formal education and a background in manual labour, was involved in a sophisticated cannabis cultivation operation conducted across two industrial premises in Artarmon. Police surveillance observed him moving between the two sites in December 2019, and he was arrested on 17 December 2019 when officers executed a search warrant. A total of 693 cannabis plants were found across the two premises, approximately three and a half times the large commercial quantity under the relevant legislation.
The offender's agreed role was that of storeman and occasional lookout. He did not participate in the physical cultivation of cannabis and held no managerial or decision-making function. He was recruited at a pub by a co-offender and accepted the work in exchange for cash and cannabis to support his unemployment and longstanding substance habit.
Two co-offenders, Ma and Zheng, had already been sentenced by the same judge in December 2020, each receiving three years imprisonment with non-parole periods of 18 months. A further five co-offenders had their matters listed for sentencing in July 2021.
Legal Issues
- What sentence was appropriate for an offender playing a peripheral role (storeman and lookout) in a large-scale commercial cannabis cultivation operation?
- How should the offender's subjective circumstances, including his background, age, drug dependency, and rehabilitation efforts, be weighed in the sentencing exercise?
- What discount applied by reason of an early guilty plea?
- Whether special circumstances existed justifying a non-parole period shorter than the statutory proportion?
- How should parity be maintained with the sentences already imposed on co-offenders Ma and Zheng?
Decision
His Honour accepted that the objective seriousness of the offending was well below the mid-range and towards the lower end for this type of offence. Although the overall operation was sophisticated and plainly commercial in nature, the offender's individual role was analogous to that of a "babysitter" as described in Andreata v R [2015] NSWCCA 239. There was no evidence of any involvement in physical cultivation, decision-making, or management of the operation.
On the subjective side, His Honour took into account the offender's difficult upbringing, his parents' heavy drinking, his long history of cannabis use, his age, and his limited prospects in the labour market. A psychiatrist's report was before the court, though it drew no direct causal connection between any diagnosis and the offending. His Honour accepted that the offender's expressions of remorse to family members and professionals were genuine, and that his prospects of rehabilitation were favourable, supported by his successful completion of a 20-session remand addictions program and a medium-to-low risk assessment for re-offending.
His Honour gave lesser weight to general deterrence given the offender's age and background circumstances. A 25% discount on the head sentence was applied for the early guilty plea. The court found special circumstances existed, warranting a non-parole period shorter than the standard statutory proportion, on the basis that an extended period of parole supervision would best support the offender's continued rehabilitation and treatment needs.
Having regard to parity with the sentences imposed on Ma and Zheng, His Honour accepted that the overall case justified a slightly lesser sentence than those two co-offenders received, reflecting the offender's more peripheral role and stronger subjective case.
Orders Made
- The offender was convicted of one count under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985.
- A sentence of two years and ten months imprisonment was imposed (after a 25% guilty plea discount), commencing 17 December 2019.
- A non-parole period of 16 months was set, expiring 16 April 2021.
- Sequences 4 and 5 were withdrawn by consent.
Key Takeaways
- The District Court confirmed that the two most significant objective factors in sentencing for large-scale indoor cannabis cultivation are the scale and sophistication of the operation, and the individual offender's role within it, whether as a principal, a "babysitter," or something in between.
- A peripheral role limited to acting as a storeman and occasional lookout, with no involvement in cultivation or management, placed the offender's objective seriousness well below the mid-range for an offence carrying a 20-year maximum.
- Parity with co-offenders is a relevant sentencing consideration. Where an offender's role and subjective circumstances are meaningfully different from those of co-offenders already sentenced, a departure from the co-offenders' sentences may be justified.
- Special circumstances warranting a reduced non-parole period were established where the sentencing court was satisfied that an extended period of supervised parole would advance rehabilitation following successful engagement with custodial programs.
- General deterrence may receive lesser weight where the offender's age, background disadvantage, and limited financial motivation distinguish the case from those of more culpable participants in the same operation.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- Pham v R [2009] NSWCCA 266
- Truong v R [2009] NSWCCA 41
- R v Ma; R v Zheng [2020] NSWDC 862
- Andreata v R [2015] NSWCCA 239 (cited within the judgment)