Citation: R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607
Court: District Court of New South Wales
Date: 9 July 2021
Judge: M L Williams SC DCJ
Background
In December 2019, the Northern Beaches Police Area Command established a strike force to investigate cannabis cultivation at three industrial premises in Artarmon. Surveillance and the execution of search warrants revealed sophisticated hydroponic set-ups across the sites, involving multiple grow tents, extraction fan systems, mercury vapour lamps, and automated irrigation. Eight individuals were ultimately arrested in connection with the operation.
Three co-offenders had already been sentenced by the same judge before this proceeding: two received three years imprisonment each, and one received two years and two months. The five offenders sentenced in this judgment each faced a charge under s 23(2)(A) of the Drugs (Misuse and Trafficking) Act 1985 for knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis. That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years.
The offenders' individual involvement varied significantly. Two were connected to all three grow houses and a combined total of 1,191 plants each; one was linked to two premises and 951 plants; and two brothers were connected to a single premises and 453 plants each. Each offender had entered a guilty plea in the Local Court, attracting a 25% discount on sentence.
Legal Issues
- What sentences were appropriate for each offender, having regard to the scale and sophistication of the cultivation operation and each offender's individual role?
- How should the parity principle apply across five co-offenders being sentenced together, alongside three who had already been sentenced?
- What weight should be given to mitigating factors including guilty pleas, good character, remorse, rehabilitation prospects, age, and mental health considerations?
- Were special circumstances established, justifying a variation to the standard ratio between the non-parole period and the balance of the sentence?
- Were any offenders appropriate candidates for an Intensive Correction Order rather than full-time custody?
Decision
The court identified parity as the central organising principle of the exercise, given that three co-offenders had already been sentenced without any appeal. The judge drew on the principle from Andreata v R [2015] NSWCCA 239, that the two most important factors in cultivation sentencing are the scale and sophistication of the operation and the role of the individual offender, whether as a principal or in a lesser capacity. General deterrence and denunciation were identified as particularly significant sentencing purposes for offending of this kind.
The offenders most deeply involved in the operation, with links to all three premises and the highest plant counts, received the heaviest sentences. Their roles included leasing premises, hiring transport for hydroponic materials, coordinating access to sites, and attending properties on multiple occasions. Those with more limited involvement, linked to only one premises and fewer plants, received lighter sentences. The court's reasons were delivered more economically than usual because counsel had been informed of the proposed orders at the conclusion of submissions and no opposition had been raised.
Special circumstances were found for two of the individual offenders, permitting an extended parole period beyond the statutory norm. This reflected individual subjective factors, including rehabilitation progress and ongoing treatment. The two brothers connected to the single premises received non-custodial sentences in the form of Intensive Correction Orders, reflecting the comparatively lower scale of their direct involvement and their individual circumstances.
One offender's formal sentencing was adjourned to 26 July 2021 at the Newcastle District Court, at the request of his counsel and without strenuous Crown objection, to allow him to attend to personal affairs that had been delayed by the COVID-19 lockdown in Sydney. The sentence to be imposed on that date was nonetheless foreshadowed by the court.
Orders Made
Seamus Doolan
- Convicted of the offence
- Sentenced to 3 years and 6 months imprisonment, commencing 17 December 2019
- Non-parole period of 21 months, expiring 16 September 2021
- Special circumstances found
- Sequences 7 to 11 withdrawn and dismissed
Kenneth McCudden
- Sentencing adjourned to 26 July 2021, Newcastle District Court (appearances by AVL permitted; bail to continue)
- Sentence foreshadowed: 2 years and 10 months commencing 5 May 2021, with a non-parole period of 16 months expiring 4 September 2022
Jordan Trejbal
- Convicted of the offence
- Sentenced to 2 years and 7 months imprisonment, commencing 4 March 2021
- Non-parole period of 14 months, expiring 3 May 2022
- Special circumstances found
Robert Worth and Steven Worth
- Each convicted of the offence
- Each sentenced to 22 months imprisonment, to be served by way of Intensive Correction Order
- Standard ICO conditions apply, plus 200 hours of community service work
- Sequences 4 and 5 withdrawn in each case
- Each to report to Liverpool Community Corrections Office by telephone by 16 July 2021
Key Takeaways
- The District Court applied the parity principle rigorously across eight co-offenders sentenced in three separate proceedings before the same judge, treating the earlier sentences as fixed reference points once no appeal was lodged.
- Scale of involvement and individual role remain the two principal variables in sentencing for large commercial cannabis cultivation, following Andreata v R [2015] NSWCCA 239.
- Under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, a 25% guilty plea discount applied uniformly where pleas were entered in the Local Court, but the discount did not operate to equalise sentences where individual culpability differed substantially.
- An Intensive Correction Order remained available even for a serious drug cultivation offence carrying a 20-year maximum, where the offender's plant involvement was at the lower end and subjective circumstances warranted it.
- A finding of special circumstances, which extends the parole period relative to the non-parole period, turned on individual factors such as rehabilitation progress and ongoing clinical treatment, rather than applying automatically across co-offenders.
Legislation and Cases Referenced
Legislation
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 23(2)(A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(a)
Cases
- Andreata v R [2015] NSWCCA 239
- R v Ma; R v Zheng [2021] NSWDC 862
- R v Eyles [2021] NSWDC 300
- Bugmy v The Queen (2013) 249 CLR 571
- Clark-Jeffries v The Queen [2019] NSWCCA 56