R v Searles

remarks on sentence

1. Mr Searles is for sentence today subsequent to my hearing submissions from the parties yesterday.

2. I record the fact that at that time I had not had the opportunity to read or consider the sentencing material as I would, in ordinary circumstances, have done prior to the hearing. However, due to the sudden unavailability of another judge, all criminal matters of this court complex had to be allocated to myself as the only judge available shortly before 10am yesterday. I further record the fact that this situation of my being the only judge sitting in crime here at Newcastle continues today and possibly for other days this week.

3. This load of cases, both yesterday’s and today’s, has severely impacted on the time I have had to prepare these remarks on sentence. Nonetheless, I considered it important that I proceed to finalise Mr Searle’s matter at the first opportunity, which is this morning, especially given the arguments presented on his behalf to the effect that the time served to date should be regarded as an appropriate non-parole period.

4. The offences for which Mr Searles stands to be sentenced are as follows. Firstly the sequence 1 offence which is one of cultivating by enhanced indoor means a number of prohibited plants, namely 50, being not less than the commercial quantity. In dealing with him for that offence, he asks that I take into account on a Form 1 document an offence under the Electricity Supply Act 1995 of diverting electricity without authority. The maximum penalty for the cultivate offence is 15 years imprisonment.

5. The second offence is sequence 2 which is an offence of supply a prohibited drug, namely cannabis leaf, which carries a maximum penalty of 10 years imprisonment. In sentencing him for that offence he asks that I take into account four admitted offences on a Form 1 document, those being firstly possession of cannabis seeds, secondly, possession of a prohibited drug namely methandienone, thirdly possessing a restricted substance which is anastrozole, and fourthly an offence of possess prohibited drug namely testosterone.

6. The third substantive offence is sequence 7 which is an offence of dealing with property, namely $1,800 cash, in circumstances where there are reasonable grounds to suspect that it is the proceeds of crime. In sentencing him for that offence he asks that I take into account on a Form 1 two other offences, firstly one of possessing ammunition and secondly an offence of dealing with a protected animal which relates to four green tree snakes.

7. The fourth substantive offence is sequence 17 which is an offence of handling an explosive without authorisation, that being an offence under s 6 subs 1 of the Explosives Act 2003 which carries a maximum penalty of 12 months imprisonment. That matter, however, is being dealt with pursuant to s 166 of the Criminal Procedure Act 1986 and therefore is subject to the jurisdictional limits that apply in relation to s 166 matters.

8. The maximum penalties for the offences, of course, are important guideposts in the sentencing exercise to which I have had regard.

9. The offender pleaded guilty at the earliest opportunity and will be given a 25% discount by reason of the utilitarian value of that plea of guilty.

FACTS

10. The facts of the offences are agreed and are set out in a Statement of Agreed Facts. I take into account all of those facts but I do not intend to recite them word for word. In essence, they are as follows.

11. On 12 December 2023 police executed a search warrant at the offender’s premises at 14 Stonehaven Drive, Metford. Inside a shed at the premises police located 50 cannabis plants. They found also inside the shed the following items: 25 hydroponic lights, 15 light bulbs, 17 light shades suspended above the plants, climate controlled air conditioning, 20 electric fans to regulate temperature, and 257 black planter pots.

12. The “enhanced indoor means” used to cultivate the cannabis is set out in a photograph which is embedded in the Statement of Agreed Facts and to which I have had regard. The facts note that the offender grew this cannabis for both commercial and personal use.

13. The facts note a number of text messages that were taken from the offender’s mobile phone and which included references by him to “growing weed”. They included also the offender making a comment that the “weed” is expensive; a comment to the effect that, “I earn a yearly salary in 12 weeks”; that, “All the rich people having good time at our expense”; and, “That why I grow weed.”

14. Police found also in various places in a kitchen at the premises 246.3 grams of cannabis leaf. This was contained in various plastic bags, some of which was labelled “kimbo”. Also found near these drugs in the kitchen were scales, heat-sealing devices and cash.

15. The offender denied to police that he had been selling cannabis. However, an analysis of the offender’s phone revealed communications on 4 July 2023, 14 October 2023, 7 December 2023 and 12 December 2023 which clearly related to drug supply. I do not intend to recite these various texts. Suffice to say that they demonstrate instances where the offender was apparently negotiating with some unknown person or persons about his supplying them with cannabis and also where the offender himself was attempting to buy cannabis of a particular strain referred to as “kimbo”.

16. Police also at the premises found the following; $1,800 cash which was found in various denominations in the kitchen. The facts note that this cash was in close proximity to other drugs, scales and resealable bags and that, as the agreed facts record, the cash was reasonably suspected of being the proceeds of crime.

17. Police also found 12 “bunga” style fireworks in the kitchen. The facts note that the offender did not have any authority to have possession of those fireworks. Those fireworks are, of course, the subject of the sequence 17 offence and the $1,800 cash is the subject of the sequence 7 offence to which I earlier made reference.

18. There were a number of other items that were found by police and these are the subject of the matters on the various Form 1 documents to which I have earlier made reference. Firstly, police found 129 cannabis seeds in the kitchen and living room and the facts records that the offender possessed these seeds for the purposes of growing additional cannabis plants by enhanced means.

19. Also found was 46.27 grams of methandienone which was found in the kitchen, as well as 6.99 grams of anastrozole in the form of Arimidex branded medication which was found in the kitchen.

20. Police also found two containers of air rifle pellets in the kitchen, one live .223 cartridge of ammunition in a storeroom, five rounds of air rifle ammunition in the main living area and one box of air rifle ammunition as well as two items of .22 calibre ammunition and one box of .177 ammunition.

21. In the main living room, police located 19.5 grams of testosterone in two branded bottles with the name Sustanon on them.

22. Furthermore, in the living room in a glass viewing case, police found four green tree pythons. When questioned about these tree pythons, which we all know go by the more formal name of morelia viridis, the offender said he did not have any licence for having the snakes. The facts go on to record that these are native Australian snakes and are listed as protected animals.

23. Finally the facts note that the offender had organised some unknown individual to instal a bypass or “tap off” to divert electricity for the purposes of cultivating the cannabis plants at the property. This diversion of electricity was done without authority.

OBJECTIVE SERIOUSNESS

24. It is necessary, of course, that I make some assessment of the objective seriousness of the substantive offences that are before the Court. The maximum penalties are, of course, one indication of the potential seriousness of those substantive offences. Drug offences have been regarded as serious offences by the courts for a very long time, especially given the maximum penalties that are specified for such offences. This is especially the case involving offences of supply and cultivation and, of course, general deterrence is a very important factor that must be given significant weight in most cases.

25. Turning then to the individual counts, firstly sequence 1 which is the offence of cultivation, I note that this offence involved 50 plants which places it at the bottom of the scale when the commercial quantity is considered. As the Crown has submitted, the cultivation was obviously quite successful in that the plants had reached a level of some maturity. There was some level of sophistication involved in the cultivation in that there were a large number of lights and various other equipment found as well as the diversion of electricity which were all part of the set-up. The Crown submitted that this increases the objective seriousness of the offence.

26. While I accept this to some extent, it needs to be considered against the reality that most offences involving the cultivation of a commercial quantity of cannabis plants will necessarily involve a degree of organisation because that is the nature of most “commercial” operations.

27. The Crown has also submitted that the purpose of the cultivation was both for commercial benefit and for personal use, whereas the offender has argued that I would conclude that personal use was the primary motivator and purpose. My conclusion is that the cultivation was for mixed purposes.

28. I have also considered the offender’s role, in other words, what he did. In this regard, it is plain that the offender was “the principal” in the operation. He was not a mere labourer or minder but had an economic stake in the “business”. On the other hand, I accept that this was a fairly limited “business” and that the offender was not part of some ongoing and sophisticated syndicate. I am also satisfied that this offence was part of an ongoing operation carried out by the offender. While the offender is not to be punished for offending outside the matters before the Court, this aspect to which I have just made reference is relevant because it demonstrates that the offence detected by police on 12 December 2023 was not a temporary aberration.

29. In my view, the offence falls well below the mid range and towards the lower range for offences of this type.

30. The Form 1 matter to be taken into account in sentencing for sequence 1 involves an offence of diverting electricity without authority. That is an offence under the Electricity Supply Act 1995 which carries a maximum penalty of five years imprisonment. Form 1 matters do not increase the objective seriousness of a substantive offence. However, the Court is entitled to take them into account and potentially increase the sentence for a substantive offence by giving greater weight to the need for personal deterrence and the community’s entitlement to extract retribution for serious offences. This is, however, of course, not an automatic process and ultimately it is a matter for the individual judge to determine whether Form 1 matters should operate in that way, which will of course depend upon the facts and circumstances of the case.

31. The Form 1 admitted offence of “diverting electricity without authority” should, in my view, operate to increase to some extent the appropriate penalty for sequence 1 but to a minimal degree only, given the need to avoid double counting, given that I have already taken this aspect into account in assessing the sophistication of the sequence 1 offence.

32. Turning then to the objective seriousness of the sequence 2 supply offence, this offence relates to the 246.3 grams of cannabis found at the premises. This represents about eight times the small quantity but less than a quarter of the commercial quantity. There is no evidence as to the strength or potency of the cannabis but there is no suggestion that it had been contaminated by any other substance.

33. Again, it must be concluded that the offender was the principal in this deemed supply offence and there is no suggestion that others were involved. His role as the principal is supported by the items found at his house which included scales, heat-sealing devices and cash, as well as the various text messages to which I have made reference in reciting in the summary of facts. However, it is not suggested that the offender was part of some larger drug enterprise.

34. Although the supply offence in sequence 2 is a “deemed” supply, there can be no doubt that the offender was involved in actual supply to others. This is apparent again from the text messages set out in the Statement of Facts. The fact that he had participated in actual supplies, however, does not increase the objective seriousness of the sequence 2 offence, but it does mean that the deemed supply offence for which he is to be sentenced cannot be treated as an isolated aberration.

35. In my view, the sequence 2 offence sits within the lower range of objective seriousness, although not at the bottom of that range.

36. There are four matters on a Form 1 to be taken into account in sentencing for sequence 2 and I have earlier set out what those offences are.

37. Each of these offences involved separate criminal acts, albeit ones that were committed at the same time as the substantive offence. Each of them carry potential prison terms if dealt with as a substantive offence. Each of them, looked at individually, are offences that are in the low range of objective seriousness. They do, however, represent separate criminal offences to the substantive offence and ought, therefore, in my view, increase to a limited extent the penalty for the substantive sequence 2 supply offence.

38. Turning then to the sequence 7 offence which is dealing with the $1,800 cash which was reasonably suspected of being the proceeds of crime. As I have just noted, the amount of money was $1,800 which is towards the very bottom of the scale for offences against s 193C(2) of the Crimes Act 1900.

39. While the Crown originally made submissions to the effect that the offender was fully aware that the money was in fact proceeds of crime, the Crown appropriately withdrew that suggestion, given that this would have involved a more serious offence.

40. In my view, the sequence 7 offence is one that falls within the low range of objective seriousness.

41. There are two matters on a Form 1 to be taken into account in sentencing for this offence and I have earlier set those out. The first is an offence of possessing ammunition and the second is an offence of “dealing with” a protected animal, namely the four green tree snakes. These two offences are fine-only offences. However, they represent separate and distinct criminality and, in my view, they ought to operate so as to increase to some limited degree the penalty for the substantive sequence 7 offence.

42. The sequence 17 offence is one of handling an explosive without authorisation. This has been dealt with, as I have said, on a s 166 certificate. The offence relates to the offender’s possession of a number of what have been described as “bungas” or firecrackers. The offender’s handling of these items consisted only of his being in possession of them. It is an offence, in my view, that is at the bottom of the range of objective seriousness for this type of offence.

43. Although not relevant to the objective seriousness of any of the offences before the Court, I take into account as a generally aggravating matter on sentence the fact that the offender was on conditional liberty at the time of these offences. This relates to the fact that he was subject to a Community Correction Order imposed in the Local Court on 18 July 2022 for offences of possess and cultivate prohibited plants.

SUBJECTIVE MATTERS

44. Turning then to subjective matters relating to the offender himself. He is now 44 years of age. His criminal history is not lengthy but it does reduce his entitlement to leniency.

45. His background is set out in the report of the psychologist Dr Gumbert. He was raised in Maitland and reported a somewhat distant relationship as a child with his parents. This became more difficult when he was aged 10 and his mother sustained a brain injury in a motor vehicle accident. This led to his being required to help out a lot at home and his mother becoming irritable and aggressive, such that she would shout and break things in the home.

46. The offender says that he was kicked out of home at age 18 when his parents discovered him using cannabis, and that after this he spent some time living in his car and couch surfing. However, he appears to have had a period of relative stability when he lived with a girlfriend from about age 21 to 27 and he bought a home when he was aged 29.

47. He also has a 13 year old daughter but has no contact with her, a matter about which he expressed some distress.

48. He reported to the psychologist that at age 15 he was sexually abused by a teacher at his school, but that he did not disclose this to anyone at the time but turned to drugs and alcohol.

49. He completed a number of TAFE courses and qualified as a carpenter but was unable to obtain his trade licence due to some literacy problems. He has worked as a carpenter and in various other jobs but suffered a serious injury to his shoulder when he was aged 32, such that he has not worked since. The report notes, however, that he has been unsuccessful in obtaining a Disability Support Pension and he is currently on Jobseeker allowance.

50. He reports to having been a daily user of cannabis since high school and also has used MDMA regularly. He told the psychologist that he has been prescribed medicinal cannabis but finds this expensive. He claims, however, that on release from prison he intends to return to medicinal cannabis and not use illicit drugs. He says that he now accepts that he cannot continue to grow cannabis and told the psychologist that he intends to reside with his parents on his release and that his house has been leased out which covers the mortgage payments.

51. The psychologist concluded that the offender at the time of offending met the criteria for Substance Use Disorder in relation to cannabis and probably MDMA but that this is now in remission in a controlled environment.

52. Although the offender reported to the psychologist that he had previously been diagnosed with Post-Traumatic Stress Disorder, it was noted by the psychologist that the offender was unable to clearly identify the antecedent event which led to this trauma. While he did say that he had experienced significant trauma in relation to his sexual abuse in his teens, he told the psychologist that he had largely overcome this and that his current problems are more to do with current stressors.

53. I note, however, that the psychologist concluded that the offender fell within the severe range for depression and anxiety, and in the moderate range for stress.

54. The offender’s upbringing is not one that can be said to involve “profound” abuse or neglect or exposure to significant violence, drug or alcohol abuse. It is not a classic “Bugmy” type case. In that respect, of course, I refer to the decision of the High Court of Australia in Bugmy v R [2013] 249 CLR 571. However, I accept that there is no bright line which separates “Bugmy cases” from “non-Bugmy cases”.

55. In my assessment, the offender’s upbringing was marred by emotionally absent parents and the effects of this, which I do not underestimate, were exacerbated by his effectively being kicked out of home at age 18 and the instability that this involved for some years. This was against a background of the offender having been sexually abused as a younger teenager. Taking these matters together, I accept that they contributed to a material degree to the offender not having good role models, not developing appropriate life skills, and also contributed to his excessive reliance on cannabis and other drugs to provide comfort. In my view, his background is one that reduces his moral culpability to some degree.

56. The psychologist suggests that there is a “clear nexus between the offender’s disability, mental health and offending conduct”. She says that while the offender’s cannabis dependence predated his shoulder injury, he reports that pain has been a significant maintaining factor for his use of the drug.

57. I accept that this further reduces the offender’s moral culpability to some degree in relation to his own continuing use of cannabis and to the extent that his cultivation of plants was for his own use. However, as the facts demonstrate, and as I have previously concluded, the cultivation was not entirely for the offender’s personal use and I am satisfied that a significant percentage of the cultivation was carried out for the purposes of supply to others for profit.

ONEROUS CUSTODY

58. The psychological report notes on p 6 that:

“With regard to his recent functioning, Mr Searles said he had been struggling with anxiety about further assaults in custody. He said that, as a person of smaller stature, being in gaol was ‘like high school but worse’ and that he was at ongoing risk of standovers. He also reported he was struggling with pain from his shoulder injury which was interfering with his sleep. However, he otherwise reported he was coping quite well and regarded himself as ‘mentally strong’, enough to cope with incarceration. He did not identify as depressed and denied any history of self-harming behaviour or thoughts or urges towards the same.”

59. The psychological report also sets out on p 9 that:

“Due to his disability and also his small stature, he has been particularly vulnerable in the custodial environment and has been placed in SMAP due to assaults and standovers by other inmates.”

60. I note that the reference to SMAP is, to my knowledge, a form of protection in custody.

61. The suggestion that the offender has been the subject of some assaults, some violence in custody, is supported by other material that was handed to me yesterday which is contained in a discharge referral from Maitland Hospital of December 2023.

62. Having regard to the matters that I have just set out, I accept that the offender’s custody to date and any future custody has been and will be rendered more onerous by reason of these matters and also, to some extent, his mental health issues.

REMORSE

63. The evidence of any remorse is fairly limited, given that the offender told the psychologist that because he does not want to pay for cannabis, he grew it. The psychologist also notes that he displayed limited insight into drug-related problems. On the other hand, he claims that he no longer intends to grow cannabis, which perhaps indicates some level of insight and remorse. Whether he can stick to that expressed intention, only time will tell.

RISK AND REHABILITATION

64. Turning then to questions of prospects of rehabilitation and future risk. While the offender claims that he no longer intends to grow cannabis, his lack of employment, his pain management issues, and his past history lead me to the conclusion that his prospects are, at best, guarded. I note that the psychologist also says that the prognosis is guarded as to drug-related offences. I think the offender presents a material risk of similar types of offences in the future.

DETERMINATION

65. Turning then to my ultimate determination, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to recite those various purposes, suffice to say they are all relevant, subject however to my conclusions earlier expressed that the offender’s moral culpability is reduced to some degree by reason of the matters that I have referred to.

66. For the purposes of s 5 of that same Act, I am satisfied that the threshold is crossed in the sense that no penalty other than imprisonment is appropriate for the sequence 1 and sequence 2 offences. It seems to me that arguably it is not crossed in relation to the sequence 7 proceeds of crime offence either, however given that I will be imposing an aggregate sentence for sequences 1 and 2, I intend to impose a custodial sentence also for sequence 7.

67. I am not, however, satisfied that the s 5 threshold is crossed in relation to the sequence 17 explosives matter, and with respect of that offence I deal with that pursuant to s 10A of the Crimes (Sentencing Procedure) Act. In other words, the offender is convicted but I impose no further penalty.

68. I intend to commence the sentence from 12 December 2023 which appears to have been the agreed date as set out in the written submissions.

69. Given that I am imposing an aggregate sentence, it is necessary that I set out the indictive sentences for each of the three matters for which I am imposing the present sentence. The indicative terms after taking into account the plea of guilty discount of 25% and after taking into account the matters on the Form 1 documents are as follows.

70. For sequence 1, the indicative term is two years six months imprisonment. For sequence 2, it is one year four months imprisonment. For sequence 7, it is seven months imprisonment.

71. I have made a finding of special circumstances to adjust the ratio between head sentence and non-parole period. I have done that on the basis that this is the offender’s first period in full time custody, and also by reason of my conclusion that there is a need for him to be supervised upon parole release for a reasonable period of time.

72. Given that I am imposing an aggregate sentence, I have had regard to totality principles; in other words, the question of to what extent there should be any notional accumulation among the indicative sentences. In my view, there does need to be some notional accumulation so as to reflect the fact that there are three offences. However, the degree of accumulation should not be great, given that all offences occurred in the context of a single enterprise.

73. I impose an aggregate head sentence of three years two months. I impose a non-parole period of one year ten months. They will date from 12 December 2023. The head sentence, therefore, will expire on 11 February 2027. The non-parole period will expire on 11 October 2025.

74. Mr Crown and Mr McDuff, anything to raise about any of those figures or anything else?

75. DOWLING: No, your Honour.

76. MCDUFF: No, your Honour.

77. HIS HONOUR: So Mr Searles, you will be eligible for release on parole in around three months from now. Understood?

78. OFFENDER: Yes.

79. HIS HONOUR: Your lawyer, no doubt, will have a talk to you about that.

**********