R v Momoka

Citation: R v Momoka [2022] NSWDC 40
Court: District Court of New South Wales
Date: 8 February 2022
Judge: Bright DCJ

Background

The offender, a 25-year-old man, appeared for sentence on one count of cultivating cannabis in a large commercial quantity by enhanced indoor means, contrary to section 23(2)(a) of the Drug Misuse and Trafficking Act. The offence concerned 632 cannabis plants located across three greenhouses on a semi-rural property at Mangrove Mountain on the Central Coast of New South Wales.

Police surveillance from March 2021 observed the offender at the property on multiple occasions tending to the plants. He was arrested on 27 May 2021 when police executed a search of the property and found him walking among the rows of cannabis. The offender was motivated by financial desperation, having lost regular employment during the COVID-19 pandemic. He had been promised $50,000 upon harvest.

Two further matters were dealt with on a Form 1 (a procedural mechanism allowing additional offences to be taken into account without separate convictions): a break-and-enter vehicle offence and one other related offence. At the time of the principal offending, the offender was subject to a 12-month conditional release order for driving while suspended.

Legal Issues

• What was the appropriate assessment of objective seriousness for cultivating a large commercial quantity of cannabis by enhanced indoor means?
• What weight should be given to the offender's personal circumstances, including remorse, rehabilitation prospects, youth, and financial motivation?
• Whether the sentence should be served by way of fulltime imprisonment or an intensive correction order (ICO).
• Whether special circumstances existed to vary the standard ratio between the non-parole period and the parole period.
• Whether any action should be taken on the breach of the existing conditional release order.

Decision

Objective seriousness

The court assessed the principal offence as well below the middle of the range (at [28]). The offender's role was limited to tending and watering the plants. He was not proved to have been involved in harvesting or preparing any product for distribution, and there was no evidence he was the organiser of the broader operation (at [20]). The cultivation was nonetheless substantial, involving sophisticated infrastructure including reservoirs, electric pumps, drip irrigation, lighting and timers across three greenhouses (at [16]).

Subjective circumstances and discount

The offender pleaded guilty at the Local Court and received a 25 per cent discount for the timing of that plea (at [3]). Bright DCJ was satisfied the offender was genuinely remorseful, had accepted full responsibility, and had excellent prospects of rehabilitation given his limited criminal history (driving offences only, no prior drug matters), good employment prospects, and strong personal support (at [51]-[52]). The fact that the offender was on conditional liberty at the time of offending was treated as an aggravating factor (at [29]). The court also found that COVID-19 had made custodial conditions particularly onerous and moderated the sentence accordingly (at [53]).

Fulltime imprisonment versus ICO

Although Bright DCJ accepted that an ICO was more likely to address the offender's risk of re-offending, only a fulltime custodial sentence was considered appropriate having regard to the objective seriousness of the offence and the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act (at [61]).

Special circumstances and sentence structure

The court found special circumstances warranting a variation in the standard non-parole to parole ratio, citing the offender's youth and the fact that this was his first time in fulltime custody (at [62]). The appropriate starting term was two years, discounted by 25 per cent to 18 months (at [59]). No action was taken on the breach of the conditional release order (at [65]).

Orders Made

• The offender was convicted of cultivating cannabis in a large commercial quantity by enhanced indoor means.
• Sentenced to imprisonment with a non-parole period of nine months, commencing 27 May 2021 and expiring 26 February 2022.
• Balance of parole of nine months, expiring 26 November 2022.
• Release to parole directed on 26 February 2022.
• No action taken on the breach of the conditional release order.

Key Takeaways

• The District Court confirmed that even where an offender's role in a large commercial cannabis cultivation is limited to tending plants, with no involvement in harvesting or distribution, fulltime imprisonment remains appropriate given the objective gravity of the offence (at [61]).

• A 25 per cent guilty plea discount was applied where the plea was entered at the Local Court stage, reflecting the timing as a significant (though not the earliest possible) concession (at [3]).

• Genuine remorse, excellent rehabilitation prospects, absence of prior drug offending, and strong community support all operated as significant mitigating factors, but were insufficient to displace the need for fulltime custody in the face of serious drug cultivation (at [51]-[52], [61]).

• Under section 66 of the Crimes (Sentencing Procedure) Act, community safety is the paramount consideration when evaluating an ICO. A court may find an ICO more likely to reduce re-offending yet still decline to impose one where the purposes of sentencing, particularly general deterrence, demand fulltime imprisonment (at [60]-[61]).

• Youth and first-time experience of fulltime custody can together constitute special circumstances justifying a departure from the standard non-parole to parole ratio, resulting here in an equal split between the non-parole period and the parole period (at [62]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act
- Crimes Act
- Drug Misuse and Trafficking Act

Cases
- Not stated