R v Prior

R v Prior - [2019] NSWDC 870 - NSWDC 2019 case summary — Zoe

[3]

Undisputed facts

At about 9am on 29 June 2017, two detectives attended the address of 67 Bridge Street, Coniston, after receiving information that the premises were being used to cultivate the prohibited drug; cannabis.
The detectives knocked on the door and were greeted by Prior. Detectives explained their reasons for attending. As they did so they noticed behind the offender two closed doors, a humming sound and the faint smell of cannabis coming from within the premises. After the short conversation with police the offender admitted that he was growing cannabis plants inside his home. The offender ushered the police inside and indicated that the doors behind him contained two large growing rooms.
Police applied for, and were granted, a crime scene warrant by Wollongong Local Court. Endeavour Energy was called to the location and deemed the property safe. The offender told police that he pays for his electricity.
An inspection revealed two automated hydroponic set ups with eight cannabis plants in one room and four in the other (12 in total). The offender stated that they were due to be harvested in one week's time. Photographs of the rooms are part of the tender bundle.
The first room contained the eight plants and a fully automated watering system, air conditioner, fans and growing lights. The plants were about 2.5 metres tall and 1 metre wide. The plants were in full bloom and were tied to the ceiling.
The second room was slightly smaller. It contained four large plants, over 2 metres tall, in full bloom. The same growing system as the first room was operating.
An inspection below the house located an electronic control room. The room contained transformers, digital ballast boxes, watering system and pumps with a reservoir, electronics, which were all wired and plumbed through the premises and back to the growing room. Photographs of this room are part of the tender bundle.
The 12 cannabis plants were removed. A search of the premises was conducted in accordance with the crime scene warrant. During the search police located a number of exhibits; including, in total, 1719.6 grams of cannabis leaf. Also of relevance was the following:

One clear plastic bag found in the living room containing items later found to be 438.2 grams of cannabis leaf.
Five white plastic bags of plant material, in plastic containers next to the fridge, another container with loose plant material, in the freezer, later analysed to be 1.281(as said) grams of cannabis leaf, that adds up to the supply count, $4,000 in Australian currency.
A device, still in its box, which had money counting and note authentication capabilities.
A device described as a "weed" trimming machine.
A "bong," chopped up marijuana and other paraphernalia consistent with the smoking of marijuana (including scissors and hollowed out cigarettes).
A CCTV surveillance system outside the house.

The offender was questioned at the scene. What occurred was recorded. The offender admitted that he was fully responsible for the cultivation of the cannabis plants. He told police that some of the cannabis leaf was for personal use.
He was conveyed to Wollongong Police Station where he was placed under arrest. He did not participate in a recorded interview.
Investigators made enquiries with the Australian Tax office. The offender had filed tax returns for the income years 2014, 2015, 2016 and 2017 showing his reported business income and expenses. His taxable income for each of these years was between $24,000 and $39,000.
Detective Sergeant Jones subsequently reviewed portions of the search warrant video, photographs taken at the location, the analyst's certificates and the property seizure exhibit form. It was accepted that Sergeant Jones had experience and training in assessing drug supply and cultivation offences and dealing with offenders. Sergeant Jones gave evidence on 27 June 2019. He gave a number of un contested opinions about the premises and the cannabis:

In his estimation the total potential yield for the cannabis plants was between 0.51 kilograms and 6.12 kilograms.
He estimated the value of the cannabis leaf located to be in the vicinity of $14,000 to $55,000.
The value of a pound of cannabis leaf wholesale is approximately 3,000 to $3,400, a view that accords with my own experience as a sentencing judge in this Court.
He was of the view the cannabis plants were close to harvest.
It was his view these plants were much larger than those normally found by police.

[4]

Disputed facts

The statements by the offender about the purpose of the cultivation and the purpose of his possession of the cannabis leaf were not accepted by the prosecution. The prosecution case is that the bulk of the cultivated cannabis was for a commercial purpose and that the bulk of the cannabis leaf located was for supply.
The prosecution also sought a confiscation order for the $4,000 located in the search as being proceeds of crime. That application is no longer pursued as that sum is the subject of Crime Commission litigation in the Supreme Court.
The prosecution relied on the following contested opinions of Sergeant Jones: 1. The common price range for a cannabis plant cultivated by enhanced indoor means that is greater than 1 metre, is approximately $5,000. 2. The estimated cost of a single 1000 watt globe is $115. The cost of a single shade and lamp holder is $68 and the cost of a $600 watt Digital Ballast Box was $410. 3. The conservative estimate of the total setup was between $22,000 and $27,000. 4. Taking into account the cannabis leaf seized at the address by police and the potential yield for the cannabis plants the total amount of cannabis was well in excess of the amount nominated by the offender as to what he intended to use for his personal use. 5. When taking into account the potential cost to establish the location for the cultivation of the cannabis, it would not be financially viable to purchase the equipment and materials required to cultivate cannabis on this scale solely for personal use. 6. The money located by police was "consistent with the illicit supply of prohibited drugs." 7. The cameras operating at the address were consistent with the offender wanting to ensure the security of the cannabis plants. 8. Sergeant Jones' conclusion that the plants, equipment, cannabis leaf, money and money counter are "consistent with those cannabis plants being cultivated for a commercial purpose".
The prosecution also submitted I would not accept the following assertions made by the offender at the scene:

"It's all mine. Yeah, it's all mine. I am responsible for the cultivation. 12 plants in total. I smoke 'em". Transcript p 3.
"I was hoping to get a year's supply. The cannabis in the freezer and in plastic containers are all mine". Transcript p 4.
"There'd be a couple of pound there. I do not sell cannabis. No, no, not at all. I just chuck it in the freezer". Transcript p 5.
"I smoke a pound every two or three months". And where he does not agree that the set-up is for more than personal use, but he later did say he gives cannabis leaf to friends. Transcript p 6.
In relation to the location of digital scale: "Oh I cook". Transcript p 7.
Offender agrees that he moved the pound of cannabis that was sitting on the table and he flicked it under the table when police arrive. He states, "That's not even mine". Transcript pp 8 and 9.
Offender states in relation to the location of a large scale cannabis cutter, "Oh, that's the machine that trims the weed…with a big fan and a blade on it". Transcript p 9.
Offender states in relation to the bag of 438.2 grams, "I'm gunna have to talk to a lawyer probably. But it, that, it was dropped off by somebody and it was supposed to be picked up by somebody else. And it was, had nothing to do with me. It was just a friends". He states that "It's not even very good". Transcript p 10.
Offender explains where the $4000 comes from, "I work for cash". Transcript p 11.

The offender did not give evidence. The defence case is that I can accept what fell from the offender when he spoke to police at the scene as a sound basis on which to sentence him; he being a person of otherwise good character. They submitted that the prosecution cannot exclude as a real possibility that the bulk of the cannabis was grown for personal use and there was only a small commercial element to the cultivation.
I was asked to reject the contested opinions offered by Sergeant Jones as being outside his expertise and experience. An application was made, and granted, for the Evidence Act 1995 (NSW) to apply to this contested portion of his evidence and the proceedings.

[5]

Disputed facts - relevant legal principles

After a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally, as in an agreed statement of facts. "It is for the sentencing judge, alone, to decide the sentence to be imposed:" The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1. There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case, GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198.
I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court confirmed in Olbrich, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court also recognised that sometimes a sentencing court must sentence according to what is known or agreed.
The High Court both in Olbrich, at [24], and later in Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629, made this point specifically; a judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt. This last point was drawn to Mr Boland's attention a number of times during the hearing on 27 June 2019. It is of particular importance here.
To return to Olbrich; at [25]. A sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If judge proposes to take matters into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities:" See also R v Storey [1998] 1 VR 359, at [369].
Where assertions by an offender are put forward as evidence going to an assessment of the objective circumstances of the offence, and that evidence is not on oath and unable to be tested by cross-examination, a judge does not have to place any reliance on it. A judge is entitled to be sceptical of unsworn statements particularly if unsupported by any factual detail. If an offender appearing for sentence wishes to place evidence before the court, which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested; Munro v R [2006] NSWCCA 350, at [17]-[19].

[8]

Consideration - disputed facts

The prosecution led expert evidence from Sergeant Jones. It was intended to, and did, provide me with some scientific information and opinions, which were within the witness's expertise, but which is likely to be outside the expertise and knowledge of most Australians. However, Sergeant Jones is an expert in investigating and analysing drug supply transactions and cannabis cultivation crime scenes as a police officer. He is not a plant geneticist, nor is he a biologist or a pharmacologist. He relied for some of his opinions on internet searches about commercial cannabis cultivation from the United States of America. They do not appear to be peer reviewed articles and are no more than growing guides; akin to those available to gardeners growing legal vegetables or flowers.
To the extent he clearly strayed from his undoubted expertise I could not have regard to what he said.
Other matters, while not within his expertise, were within mine. In evaluating the proved facts or opinions I can use my life experiences, training and experience as a lawyer and a judge. As part of my factual findings I can make value judgments in respect of such matters. I cannot, however, use my personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to "common knowledge" set out in s 144 Evidence Act and the requirement in s 144(4) that necessary things be done to ensure a party is not unfairly prejudiced, are complied with: Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229, at [68]-[69] During the course of the hearing that experience was made known to the parties.
On the other hand Sergeant Jones' statement and annexures and the evidence of other officers provided a convenient vehicle to convey to the Court material, which while outside his experience, was relatively uncontroversial.
Prior chose not to give evidence. Where his evidence could be supported by objective facts it can be accepted. For example: there were no obvious signs of unearned wealth and he was living alone in his heavily mortgaged home which was worth much more than the mortgage. He was renovating that home, which was in effect a building site.
But such evidence cuts both ways. Prior was in debt. His taxable income was not high. He was able to make his mortgage payments, as bank records make clear, but there was nothing to support his assertion that the money for these payments came from a legitimate source. He said he kept cash at home because he did not trust banks and that this cash had been accumulated from earlier work as a builder and handyman. There was no evidence about when he had last earned a legitimate income apart from a tax record summary for 2017 showing a taxable income of $24,836.
There was evidence Prior was a cannabis smoker, but there was nothing to support an assertion he smoked enough to justify the undoubted expense of setting up the cultivation system found. In fact, there was no reliable evidence to suggest how much cannabis he smoked.
Contrary to Mr Boland's assertions the prosecution had no onus of rebutting every assertion made by the accused. For example, it was suggested the electrical equipment could have been second-hand. I do not have to accept that assertion, when to me, viewing the exhibited photographs and video recording, it looked new, shiny and recently installed.
It was suggested by Mr Boland that a significant proportion of the crop could have been for personal use. Even if I accept Prior was a heavy cannabis user I do not have to guess how much he smoked, nor do the prosecution have to prove he was not a heavy cannabis user or how much a person is capable of smoking per annum. All I have is evidence he had been smoking cannabis in a period before the police arrived and that, as he asserted in the video, and as the police on scene accepted, the house "reeked" of it.

[9]

Conclusion - fact finding

Prior had converted two rooms of his house over to the growing of cannabis. The rooms were sealed and had extra ventilation. He had set up a sophisticated automated lighting and hydroponics cultivation system operated from a control room under his home. The home was protected by CCTV cameras. Even accounting for his expertise as a handyman with possible access to cheaper materials, considerable expense had been undertaken, possibly $20,000 in equipment alone.
In mid-2017 he was, as his guilty plea confirms, cultivating 12 plants for commercial purposes. Those plants had grown to a size well in excess of those often found by police. They were in full bloom and ready for harvesting of the resin producing heads of the plant. The system Prior had set up was flourishing. I cannot accept the assertion the original intent for setting up the system was for his own use. The assertion can be simply answered - why two rooms with 12 large plants with 12 corresponding cultivation systems?
He had harvested some of his crop. It was ready and available for supply. Only one bag had been packaged. I cannot accept an assertion it had been left at the house by someone else. A weed trimmer had been used to separate the more valuable part of the crop. A money counter had been recently obtained to assist with the expected remuneration.
Prior was not working; apart from on his own home. He was in debt and needed funds to continue his renovation and make his mortgage payments. He had no other visible means of support other than the supply of cannabis.
Prior was a cannabis user. He may have been a heavy user but heavy cannabis use could not, in my limited experience, account for all the cannabis found or size of the expected crop. That some cannabis leaf was stored in a freezer and most of the remainder not packaged for supply indicates that either his supply operation was not sophisticated or had not yet been put into operation.
Accordingly, I am satisfied beyond reasonablle doubt that the bulk of the cultivated cannabis was for a commercial purpose and that the bulk of the cannabis leaf located was for supply. As with most such exercises, when assessing drug supply operations it is both impossible and unnecessary that I make findings as to the exact nature and extent of the operation - what was found at the house speaks for itself. Prior had gone to considerable trouble. He expected commensurate reward.

[10]

Sentencing principles - cannabis cultivation and supply

While a Court's sentencing discretion cannot be judicially constrained, as Simpson J pointed out in Robertson v R [2017] NSWCCA 205, a sentence must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions. While every case must be determined on its merits and each offender is different a number of important principles can be discerned from the authorities.
Principles requiring harsh deterrent punishment apply to anyone who engages, at any level, in drug supply or cultivation. To cultivate and supply illicit drugs involves a disregard for public safety. Accordingly, the cultivation of cannabis for profit will usually attract a term of imprisonment: R v Godden [2005] NSWCCA 160.
The offender's role is important. Here the offender acted alone for his own benefit.
The quantity of cannabis and the number of plants involved is important but need not be the sole or even principal determinant. So too is the profit sought to be made. The quantity of the drug remains material, given that the size of the profit and the harm inflicted are likely to be proportional to the weight of the drug; R v Stanbouli (2003) 141 A Crim R 531 at [102].
Whatever the merits of the opinions some hold about cannabis ingestion, and the outcome on the current debate about legalisation, judges must apply the law as it stands. While heavy maximum penalties remain for cannabis cultivation and its sale the illicit trade in drugs will remain one of the principal sources for crime in the community. It is not just the distribution of the drugs to users that are crimes; crimes also committed by those who seek to obtain funds for drug use and the crimes result from the distribution of illicit profits in the community. Further, there is the destruction of family life and personal life from drug use and the gaol penalties imposed on offenders that must be considered. The penalties fixed by Parliament reflect the community interest in appropriate and just punishment for such offences and the need for deterrent penalties that are significant and telling.

[13]

Case for the offender

Today I received a report from Dr Jonathan Osborne, a clinical psychologist: exhibit 5. He has been treating Prior for the past two years. He notes that in his examination Prior showed symptomology consistent with an undiagnosed and untreated post-traumatic stress disorder and a comorbid dysthymia, cannabis abuse and borderline personality disorder involving difficulty sleeping, reduced appetite, emotional debility, poor concentration, irritability and impaired memory, some suicidal ideation.
Dr Osborne says that post-traumatic stress disorder and origins of his borderline personality features were undoubtedly developed from a trauma in his childhood when as an infant he was a passenger in a motor vehicle accident that claimed the life of his mother. Prior's father was alcohol dependent. Dr Osborne reports, uncontroversially, that Prior was subject to ongoing physical and emotional abuse by his father. Those traumas would have enduring impact on any person and lead to what is now being treated; a series of complex trauma symptoms.
There is, and has been, a plan in place. It is clear to Dr Osborne that Prior has willingly engaged in therapy and made appropriate interpersonal modifications to improve his level of functioning in the community. They include a report that he has abstained a significant period of time from cannabis use.
The Sentence Assessment Report, which was received and tendered today, confirms most of that material: exhibit G. It concludes that the offender has been assessed as a medium/low risk of reoffending. It indicates some acknowledgment of the effect his actions have had on his son, but it does not disclose any particular remorse or acceptance of responsibility. It notes Prior's history as a worker and there is evidence before me that he is currently employed and working six days a week as a rigger. He has a home. He has a son who supports him. He has regular employment.
There is also material from the Supreme Court where an order has been made freezing certain property, including the family home. I accept that such orders add a level of stress above that resulting from the commission of this offence. There is some need for recognition of the stresses involved in that litigation as extra-curial punishment. However, I cannot and do not speculate as to the likely outcome of those proceedings. It is the fact of the proceedings that is relied on by Mr Boland. It can be given in accordance with the general practice some limited weight: R v Daetz [2003] NSWCCA 216.
The plea of guilty came late. While it saved the expense of a jury trial, the various matters before the Court occupied almost as much time as a trial would have. I will reduce the otherwise appropriate sentences by 10% to reflect the utilitarian value of those pleas; in my view this is a generous assessment.
There will be some accumulation of sentences to reflect the individual objective seriousness of the two matters before the Court. As they form part of the same enterprise there will be considerable concurrence.

[15]

An Intensive Corrections Order?

Mr Boland submits that the purposes of sentencing could be met by community service and Corrective Services order. Alternatively, he submits that if the s 5 threshold has been crossed serving the sentence by intensive correction in the community can meet all the purposes of sentencing.
Before an intensive correction order can be imposed community safety must be considered; Karout v R [2019] NSWCCA 253, Fangaloka v R [2019] NSWCCA 173. That obligation does not derogate from the general purposes of sentencing outlined in s 3A or other relevant matters; s 66(3). Nor does it limit the consideration of community safety to a means more likely to address the risk of reoffending. As Basten JA noted, in Fangaloka, community safety can operate in different ways in different circumstances.
The concept of "community safety" is broad. Community safety is not achieved simply by incarcerating someone. As many studies have shown in many cases incarceration can have the opposite effect. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It can best be achieved by positive behavioural change. The amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community; Pullen v R [2018] NSWCCA 26, at [84].
While an Intensive Correction Order reflects a significant degree of leniency the order still involves a substantial punishment and is not a light sentence and can be burdensome and onerous. In Bateson v R [2011] NSWSC 643, Buddin J noted that an Intensive Correction Order:

can substantially contribute to the punishment of an offender, including where condign punishment is warranted.
is intended to be, and ordinarily will be, burdensome.
has onerous conditions. Any breach is likely to have dire consequences.
will intrude into an offender's life requiring services to the community on an unpaid basis.
will be a constant reminder of the evils of criminal conduct.
is an appropriate adjunct to rehabilitation. From the legal point of view that is a very significant aspect of the order.
is a measure is designed to provide a severe punishment just short of imprisonment but more severe than a community-based order.

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Cases Cited (24)