R v Quzag [2015] ACTSC 52

Supreme Court of the ACT|2015-02-12|Before: Murrell CJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - Sentence - cultivate trafficable quantity of cannabis plants - late guilty plea after plea reversals - co-offenders - comparable cases - sentencing purposes - general deterrence - rehabilitation

R v Li; R v Jin [2014] ACTSC 304

R v Luoc Quang Pham (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 31 January 2014)

R v Mayberry (unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 September 2013)

R v Moustafa Negro; R v Nabel Quzag (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 27 March 2014

R v Quan; R v Zhang [2014] ACTSC 385

1. The offender pleaded guilty to the offence that, contrary to s 616(5) of the Criminal Code 2002 (ACT), between 10 September and 10 November 2012, he cultivated a trafficable quantity of cannabis plants with the intention of selling any of them, or believing that someone else intended to sell any of them. The offence carries a maximum available penalty of 10 years' imprisonment. A trafficable quantity is between 10 and 100 plants.

3. The matter has a tortuous history. The offender was committed for trial on 22 August 2013 and the matter was listed for trial. The offender pleaded guilty. Later, he sought leave to withdraw the plea of guilty, which was granted, and the first trial date was vacated. The matter was listed for trial a second time. That trial was also vacated. A third trial was listed to commence on 27 November 2014, but the third trial date was vacated when the offender pleaded guilty on the day before the trial.

4. In these circumstances, the offender is entitled to very little discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). There was little utilitarian value to his plea and, generally, the other s 35 considerations do not tell in his favour.

5. Over the two-month period the subject of the charge, the offender attended unoccupied residential premises in Macgregor that were owned by his girlfriend's parents. He went for the purpose of tending a cannabis crop that was being grown at the premises by a sophisticated hydroponic arrangement.

6. Police surveillance revealed that the offender attended the premises on an almost daily basis from 27 July to 22 October 2012. That period partly overlaps with the period the subject of the offence. During the period of the offence, audio surveillance revealed that the offender participated in several conversations at the premises that were consistent with cultivation of the crop.

7. On 9 November 2012, police received a report of water flooding from the premises. On 10 November, police executed a search warrant and found that a cannabis growing operation was being conducted in the garage and the four bedrooms of the house. The operation included an irrigation system, lamps, shades and air filter systems that provided ducting to each room. Police seized 98 mature cannabis plants. They also seized equipment and products used for the cultivation of cannabis, including fertilizer.

8. The offender's fingerprints were found on two pots that contained cannabis plants. His DNA was located on several latex gloves found at various locations within the premises. The key to the front door of the premises was taken from the offender's car. Documents addressed to the premises, including outstanding electricity accounts, were taken from the offender's house.

9. In sentencing the offender, considerations of parity with co-offenders must be taken into account.

10. Yazin Al Naqib pleaded guilty to the offence of cultivating a trafficable quantity of cannabis plants and was sentenced in the Magistrates Court to 208 hours of community service and an 18-month good behaviour order. He attended the premises on three occasions over a period of three months.

11. Nabel Quzag, the offender's brother, pleaded guilty to the offence of aiding and abetting the offender to cultivate a trafficable quantity of cannabis plants. He was 20 years old at the date of the offence and had a relatively minor criminal history. He was sentenced by me to 220 hours of community service and a two-year good behaviour order. He attended the premises on six occasions in September and October 2012 in the company of one or more co-offenders.

12. Moustafa Negro pleaded guilty to aiding and abetting the offender to cultivate a trafficable quantity of cannabis plants. He was 21 years old at the date of the offence and had a relatively minor criminal record. He was sentenced by me to 10 months' imprisonment, fully suspended upon him complying with an 18month good behaviour order that required him to undertake 100 hours of community service work. He attended the premises on approximately 21 occasions in September/October 2012, often with the offender.

13. Nabel Quzag and Moustafa Negro pleaded guilty in the Supreme Court and I considered that they were entitled to a 15% discount, or the equivalent consideration to acknowledge the utilitarian value of their pleas and the other s 35 considerations: R v Moustafa Negro; R v Nabel Quzag (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 27 March 2014).

14. The quantity of plants the subject of the offence - 98 plants - is relevant to the objective seriousness as it is at the top end of the trafficable range. The offence occurred over a two month period which, in itself, was not an isolated period, in that the offender began to attend the premises prior to the date from which the charge commenced.

15. The role of the offender is very relevant to the objective seriousness of the offence. The offender attended the premises on an almost daily basis in his role as caretaker of the crop. There was no evidence that the offender was an organiser of the sophisticated operation or that he would himself sell the crop. Nor was there any evidence of the extent of any financial benefit that would flow to the offender. Nevertheless, the role of a caretaker is crucial to such an operation. The offender said that he committed the crime in part because he had drug debts. I infer that the offender was to gain a benefit that was at least significant to him, either a financial benefit or a benefit by way of receiving cannabis, or some other benefit in kind.

16. The offender's role was different from that of the co-offenders. The attendance of Mr Al Naqib and Mr Nabel Quzag was only occasional, and Mr Negro often attended in the company of the offender. When sentencing Mr Negro and Mr Nabel Quzag, I characterised the degree of participation or role of each of those offenders as "towards the lower end, particularly in the case of Mr Nabel Quzag". The same cannot be said of this offender.

17. The offender was 20 years old at the date of the offence. He is now 23.

18. The offender's parents are separated. The offender has a stable and supportive relationship with his mother, with whom he resides. He also has a strong supportive relationship with his partner of five years and his siblings (one of whom is a co-offender).

19. He has had some involvement with the justice system, but he has had no prior involvement with adult criminal courts. Nor has the offender reoffended in the two-year period since the subject offence.

20. In 2010, the offender was diagnosed with bone cancer. In 2011, he underwent related surgery to his leg. He has not recovered the full use of his leg. As part of his cancer treatment, the offender underwent chemotherapy.

21. The offender began to use cannabis because it relieved his pain and ameliorated the side effects of chemotherapy. He was a heavy user of cannabis at the time of the offence.

22. In the period leading up to the offence, the offender was depressed and anxious. His mental condition was related to cannabis use.

23. He has rehabilitated himself in relation to drug use and last used cannabis in January 2013. He takes pain relief medication in lieu of cannabis. The CADAS report indicates that the offender has demonstrated a high level of commitment to treatment and recovery, attending regular counselling appointments.

24. The offender completed Year 11 at school and then worked until he was diagnosed with cancer. In 2014, he completed two courses, a diploma in management and a certificate IV in building and construction. Recently, he commenced working part-time for a building company.

25. He says that one reason that he committed the offence was because he was indebted as a result of heavy cannabis use. The March 2014 CADAS report says that the offender has good insight and awareness into his current situation. This appears to be a reference to his insight into substance abuse.

26. Unfortunately, the offender's social network consists almost entirely of illicit substance users and other criminal associates, including the co-offenders.

27. The pre-sentence report indicates that the offender displays limited insight in to his actions and has sought to blame his predicament on others. This assessment accords with my own impression that he is emotionally immature for his years.

28. In sentencing the offender, the Court must consider the sentencing purposes mentioned in s 7 of the Sentencing Act. Of great importance is the sentencing purpose of general deterrence. As Burns J said in R v Mayberry (unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 September 2013) (Mayberry), general deterrence is the dominant sentencing consideration for offences such as this offence.

29. Rehabilitation is particularly important in this case given the offender's youth and the progress that he has made towards rehabilitation over the past two years. Despite this progress, the pre-sentence report indicates that the offender remains at moderate risk of further offending and there are significant areas that require intervention. The offender requires further treatment in relation to substance abuse and counselling to address his anti-social peer involvement and to promote pro-social activities.

30. In sentencing the offender, I am required to consider relevant sentencing features particularised in s 35 of the Sentencing Act and other relevant considerations. I believe that I have addressed the relevant s 33 matters above.

31. It is important for the Court to consider not only the maximum available penalty (which is a critical sentencing parameter), and the relevant objective and subjective features, but also comparable decisions in this jurisdiction.

32. In Mayberry the offender had been charged with cultivating a commercial quantity of cannabis plants. 105 plants were cultivated in a sophisticated enterprise. He was characterised as a "worker, not as an organiser". The starting point for the sentence was 18 months' imprisonment (the maximum available penalty was 25 years' imprisonment). After a deduction for the plea of guilty, Mayberry received a sentence of 15 months' imprisonment, of which he was to serve six months with the balance suspended.

33. In R v Luoc Quang Pham (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 31 January 2014), the offender was charged with cultivating the commercial quantity of cannabis. 254 plants were cultivated in a sophisticated enterprise. He was characterised as a "low-level crop sitter". He resided at the premises. The starting point for the sentence was 30 months' imprisonment. After a deduction of 10% for the plea of guilty, he received a sentence of 27 months' imprisonment, of which six months was to be served by way of full time imprisonment and the balance suspended.

34. In R v Quan; R v Zhang [2014] ACTSC 385 (R v Quan; R v Zhang), Quan and Zhang were charged with cultivating the commercial quantity of cannabis. 214 plants were cultivated in a sophisticated enterprise. The offenders were resident caretakers; they were not the organisers of the operation. They were poorly educated and may have been desperate. Their visas had expired and they were in Australia unlawfully. They had no prior convictions. Mr Quan, who was the primary caretaker of the crop, was sentenced from a starting point of three years' imprisonment and was ordered to serve 14 months, at which stage, he would be deported.

35. In R v Li; R v Jin [2014] ACTSC 304, Li and Jin were charged with cultivating the commercial quantity of cannabis. 371 plants were cultivated. The facts were very similar to those in R v Quan; R v Zhang. The offenders acted as resident caretakers. There were strong compassionate circumstances in relation to Mr Li, who was the principal caretaker of the cannabis. The sentence was structured to reflect those circumstances. The starting point for the sentence was three and a half years' imprisonment.

36. I am mindful that each of those matters involved an offence of cultivating the commercial quantity of cannabis, invoking a maximum available penalty of 25 years' imprisonment, as compared to the maximum available penalty of 10 years' imprisonment for cultivating the trafficable quantity of cannabis in this case.

37. In this case, as in almost all such cases, considerations of general deterrence dictate that no sentence is appropriate other than one of imprisonment. In this case, the manner in which the sentence of imprisonment is served must include a component of full time imprisonment. In relation to the important sentencing consideration of rehabilitation, I have taken that into account in the way in which I have structured the sentence.

38. The offender is convicted. The starting point for the sentence is 30 months' imprisonment. I have discounted the sentence of 30 months to 28 months' imprisonment for the very late plea following a series of plea reversals. The first six months of the sentence is to be served by full time imprisonment. The next eight months is to be served by way of a periodic detention order. The remaining 14 months is to be suspended upon the offender entering into a good behaviour order for a period of 14 months. It will be a condition of the good behaviour order that the offender reports to ACT Corrective Services within seven days of completing the periodic detention order and submits to their supervision for as long as they consider necessary.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

11 March 2015 Replace s 35 with s 33 in paragraph [30]

(Sentencing) Act 2005

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