Mr G Goold (Solicitor for the offender)
File Number(s): 2019/00397045
[2]
Judgment
Frederick Eyles is 55 years of age and is described by his partner as a typical old‑school, working class, Balmain boy, who values independence and has aneed to be useful. Lacking the skills to succeed intellectually, he has always relied on his manual ability. As Mr Goold put today, getting into his fifties his manual skills are not as valuable as that of a younger man and he turned to involvement in cannabis cultivation in Artarmon. This leads him to being sentenced today for one count under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.
He pleaded guilty at an early opportunity justifying a 25% discount on the term of imprisonment. He has been in custody since his arrest on 17 December 2019 in maximum security at the MRRC and it is agreed that the term of imprisonment which should be imposed will commence on that date.
I have already sentenced two co-offenders in relation to this cannabis cultivation operation being conducted at Artarmon. They were sentenced on 16 December 2020, Mr Ma and Mr Zheng, who were both sentenced to three years imprisonment with non-parole periods of 18 months. Their role and their subjective case are set out in my remarks on sentence, which have been published (R v Ma; R v Zheng [2020] NSWDC 862). Today a further five co-offenders have had their matters listed for sentence before me on 9 July 2021.
The sentencing process of course must take account of the maximum penalty and the standard non‑parole period as important yardsticks in the sentencing process as well as the the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
I have been greatly assisted by comprehensive written submissions from Mr Goold and the Crown Prosecutor, which address the objective and the subjective case. Mr Eyles' subjective case is set out in a report of psychiatrist, Dr Olav Neilssen, an affidavit of his partner, Joanne Manning, who has known him for 20 years, an affidavit of his daughter, Chloe Eyles, and an affidavit of his elder sister Leslie Eyles, as well as a document described as a life history which I accept was provided to Dr Neilssen as the basis of the history.
In short, there were two premises located in an industrial area of Artarmon, 29 Hotham Parade and 2 McLachlan Avenue In December 2019, in particular on 10 December, the police observed the offender exiting 29 Hotham Parade. Then on the following day, 11 December 2019, while police were conducting surveillance on 29 Hotham Parade, they saw Mr Eyles leave those premises and walk to the other premises, 2 McLachlan Avenue.
A search warrant was executed on 17 December 2019 at 2 McLachlan Avenue where the offender was arrested along with his co-accused, Ma. There was a sophisticated and complex hydroponic set up with multiple grow tents to grow cannabis plants under irrigation. On 19 December the premises at 29 Hotham Parade were searched, again a sophisticated cultivation system was in place The number of plants located at each premises were as follows:
2 McLachlan Avenue 29 Hotham Parade
240 plants 453 plants
[3]
A total of 693 plants were located across bother premises.
Following his arrest, Mr Eyles taken to the police station. He declined to comment when he was asked questions in an interview.
The agreed facts show that the Crown agrees that the role of the offender was that of a storeman, and lookout from time to time in relation to the two premises. There is, however, no evidence of what, if anything, he did as a storeman, and the highest that the Crown could point to in the agreed facts was the fact that he walked from one property to the other carrying a bag on 11 December 2019, according to Police surveillance.
His record, as Mr Goold concedes, does not entitle him to leniency. He has had minor drug possession matters dealt with by fines in the 1980's and 1990's, and then there was a fight in a hotel which lead to him being sentenced to two years imprisonment with a non-parole period of 15 months in December 2013. There was a concurrent six month sentence of imprisonment for stalk and intimidate while he served that 15 month non-parole period. That was his first period of full-time custody from March 2015 to June 2016.
It is correct, as the Crown points out, that Dr Neilssen does not make any causal connection between any diagnosis that he makes and the offender's involvement in offending. A short history, as he describes it, is that he was a poor learner at school, his mother and father were never at home, except on weekends. He got into fights at school, His parents both drank heavily and he remembered waiting for his parents outside hotels. His secondary school experience was not favourable, he was not an academic and his home life was dictated by his parents drinking and he had a genuine fear of his father who was violent when he drank. He discovered cannabis in his late teens and used it regularly thereafter.
He said after his dad passed away he had no motivation to get a job and for ten years he had no direction and spent his life on the dole and smoking pot. Then he went to Leeton to pick fruit and he was caught with a minor cannabis cultivation at the farm that he was staying at.
His partner, Joanne, says that he has expressed remorse to her and she describes the experience of him missing out on jobs to younger men which has been hard for him. She says she could see that even though he keeps that to himself, not working was affecting his self‑esteem and self‑respect. He has spoken to her about the courses he has done while in custody, including a lengthy drug course, and his spirits have been raised by the success he has achieved in this regard and he speaks of setting goals for himself and he knows life will be tough but he wants to try and avoid drinking and smoking cannabis.
Chloe, his 20 years old daughter, has been in regular communication with him by Skype and she can tell that he is determined not to repeat his mistakes. Lesley, his elder sister, also says that he is extremely sorry for what he has done and she believes him when he says he has learned his lesson.
The sentence assessment report contains candid admissions by him that he was associating with anti-social acquaintances at the pub and he was approached by a co-offender at a pub and offered work as a lookout. He has completed the remand addictions program which involved twenty sessions and he was assessed as being a medium to low risk of re-offending.
I take account of the principles in relation to sentencing for this type of matter that are referred to by the Crown from Pham v R [2009] NSWCCA 266 and Truong v R [2009] NSWCCA 41, in particular the legislative purpose in introducing the sanctions against cultivation by enhanced indoor means.
As has been said in many of the cases, and was repeated by Beech-Jones J in Andreata v R [2015] NSWCCA 239 at [46],
"two important factors relevant to sentencing in this area are the scale and sophistication of the cultivation and the role of the offender, whether as a principal or a 'babysitter' or something in between."
Here as to objective seriousness the Crown points to him being involved as a storeman and lookout for a cultivation of 693 plants, which is about three and a half times the large commercial quantity. It was a sophisticated operation, undoubtedly undertaken for financial gain by those involved.
I accept that his role was not dissimilar to the role of a babysitter referred to by Beech-Jones J in Andreata v R [2015] NSWCCA 239. There is no evidence that he had any managerial or decision making functions and no involvement in physical cultivation of the drug, and as he told Dr Neilssen,
"I was just the lookout a couple of days a week in case there was a fire or flood or anyone came. They said do you want to do a bit of work. I smoke a bit of pot and the deal was to get a bit of pot and a bit of cash and I was up for it."
He concedes that by acting as a storeman and lookout he knowingly took part in the cultivation, but his role does not extend beyond the evidence to which I have referred. He also concedes his motivation was for financial gain but not for the purposes of maintaining any opulent lifestyle but merely to fund his unemployment and ongoing substance habit.
I take account as mitigating factors his early plea of guilty, his expressions of remorse to various family members and professionals, as I have referred to already. I think his prospects of rehabilitation at this stage are favourable in the light of the assessment by the author of the sentence assessment report. I think lesser weight may be given to general deterrence in this case given his age, his "rugged upbringing", to use a fairly imprecise term. I accept that the objective seriousness of his offending is well below the mid‑range and towards the lower end of the range for this type of offence. I take into account, of course, questions of parity in relation to the sentences already imposed on the two co-offenders, Zheng and Ma. I take account, as the Crown points out in the sentencing synthesis, the need to protect the community from the harm caused by drug cultivation and distribution operations, without of course suggesting that there was any distribution involved here.
I accept Mr Goold's submission that his case overall justifies a slightly lesser sentence than that imposed on Zheng and Ma. I accept that given his successful completion of a lengthy addiction program while in custody, he would benefit from further intervention as recommended by Community Corrections and that that would best be served by an extended period of supervision on parole justifying a finding of special circumstances.
The orders that I make are:
1. The offender is convicted.
2. I impose a sentence, after a 25% discount, of two years and ten months commencing 17 December 2019.
3. I impose a a non‑parole period of 16 months, that will expire on 16 April 2021.
16 April, Mr Eyles for parole, do you understand?
OFFENDER: Yes, thank you, your Honour.
GOOLD: Just two back up sequences to be withdrawn, your Honour, sequence 4 and 5.
HIS HONOUR: I did not know that. I note that sequences 4 and 5 are withdrawn.
[4]
Amendments
07 July 2021 - Correct quote indentation at [18].
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Decision last updated: 07 July 2021