District Court New South Wales Medium Neutral Citation: R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607 Hearing dates: 9 July 2021 Date of orders: 9 July 2021 Decision date: 09 July 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: McCudden: A term of imprisonment of 2 years, 10 months, with a non-parole period of 16 months; Doolan: A term of imprisonment of 3 years, 6 months, with a non-parole 21 months; Trejbal: A term of imprisonment 2 years, 10 months with a non-parole period of 16 months; S Worth: A term of imprisonment of 22 months to be served by way of an intensive corrections order; R Worth: A term of imprisonment of 22 months to be served by way of an intensive corrections order: at [71]. Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty —Financial gain — Planned or organised criminal activity SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders — Joint sentence proceedings s — Parity — Deterrence — Establishing relevant matters — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Mental illness— Special circumstances Legislation Cited: Drugs (Misuse and Trafficking) Act 1985 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Andreata v R [2015] NSWCCA 239 R v Ma; R v Zheng [2021] NSWDC 862 R v Eyles [2021] NSWDC 300 Bugmy v The Queen (2013) 249 CLR 571 Clark-Jeffries v The Queen [2019] NSWCCA 56 Texts Cited: Nil Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) Kenneth McCudden (Offender) Seamus Doolan (Offender) Jordan Trejbal (Offender) Steven Worth (Offender) Robert Worth (Offender) Representation: Mr M Harper (Solicitor, Office of the Director of Public Prosecutions Mr D Carroll (Counsel for Kenneth McCudden) Mr M Buxton (Counsel for Seamus Doolan) Mr B Barrack (Counsel for Jordan Trejbal) Mr C Parkin (Counsel for Steven Worth) Mr M Coroneos (Counsel for Robert Worth) File Number(s): 2019/ 397041; 2019/397035; 2019/404112; 2019/403333; 2020/199315 Judgment 1. In December 2019, the Northern Beaches Police Area Command established Strike Force to investigate the cultivation of cannabis at three premises in Artarmon. Eight individuals were arrested in relation the cultivation operation. Yongjun Zheng, Guo Qing Ma were sentenced by me on 16 December 2020 (R v Ma; R v Zheng [2021] NSWDC 862) and Fredrick Eyles was sentence by me on 12 March 2021 (R v Eyles [2021] NSWDC 300).The remaining offenders Seamus Doolan, Kenneth McCudden, Jordan Trejbal, Robert Worth, and Steven Worth are to be sentenced today. 2. Youngjun Zheng and Guo Qing Ma were each charged with knowingly take part in the cultivation of not less than a large commercial quantity of cannabis, in relation to 498 and 733 plants respectively, and sentenced to three years imprisonment with a non-parole period of 18 months. Mr Eyles was charged in relation to 693 plants and sentenced to two years and two months with a non-parole period of 16 months. Mr Eyles was 55 years of age, Mr Ma was 61, and Mr Zhang was 26 years old. 3. The offenders today have each been charged as follows: 1. Seamus Doolan, aged 63, who was charged in relation to 1191 plants across all three properties; 2. Kenneth McCudden aged 47 years, also charged in relation to 1191 across all three properties; 3. Jordan Trejbal aged 27, who was charged in relation to 951 plants across two of the three properties; and 4. The brothers Steven Worth, aged 45, and Robert Worth, aged 37, who were charged in relation to 453 plants at the Hotham Place premises. 1. The offenders with charge with offences contrary to s 23(2)(A) of the Drugs (Misuse and Trafficking) Act 1985, which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. The maximum penalty and standard non-parole period indicate the seriousness of the offending and serve as yardsticks in the sentencing process. 2. I take into account the sentencing purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, and I note that general deterrence and denunciation loom large in sentencing for this type of offence. 3. Each offender entered a plea of guilty in the Local Court and is entitled to a 25% for the plea pursuant s 25D(2)(a) of the Crimes (Sentencing Procedure) Act. 4. These reasons covering the significant amount of material contained in the Crown bundles, and subjective material and authorities on behalf of each offender, involve the Court in an extensive process of attempting to assimilate a common set of facts distinguishing the extent of involvement of each of the offenders. 5. I have taken the somewhat unusual course of indicating to counsel for the Crown and for each offender at the conclusion of submissions the orders that I propose to make and, there being no opposition expressed to those orders, I am able to deliver reasons in a somewhat more economical fashion than might otherwise have occurred if I was required to spell out all the detail of the subjective case in the submissions on behalf of each offender. 6. To a large extent this is an exercise in sentencing parity given that I have already sentenced three of the offenders and there has been no appeal notified on behalf of either those sentenced or the Crown. 7. The offenders apart from Mr McCudden will be sentenced today. At the conclusion of submissions Mr Carroll, counsel for Mr McCudden, without strenuous opposition from the Crown, asked for an adjournment of two weeks before sentence was pronounced so that he could attend to his personal affairs which have not been able to be accomplished due to the COVID-19 lockdown in Sydney. As such I will l adjourn the matter of R v McCudden until 26 July 2021 for the passing of sentence. 8. I take account of general principles relating to sentencing for cultivation matters. As Beech-Jones J in Andreata v R [2015] NSWCCA 239 following a consideration of previous authorities said at [46]: "What can be discerned by way of "unifying principles" from the above cases is that 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." Agreed Facts 1. The following table summarises the involvement of each offender cultivation operation in terms of the number of plants each offender has been involved in cultivating and with which "grow houses" they were each associated with: 29 Hotham Place 2 McLachlan Avenue 4 George Place Total plants Seamus Doolan 453 plants 240 plants 498 plants 1,191 plants Kenneth McCudden 453 plants 240 plants 498 plants 1,191 plants Jordan Trejbal 453 plants NA 498 plants 951 plants Steven Worth 453 plants NA NA 453 plants Robert Worth 453 plants NA NA 453 plants Previously sentenced offenders Fredrick Eyles 453 plants 240 plants NA 693 plants Guo Qing Ma NA 240 plants 493 plants 733 plants Yongjun Zheng NA NA 498 plants 498 plants 1. The collective agreed facts can be summarised as briefly as I can at this stage as follows. Police Surveillance operation 4 December 2019 1. Police attend the vicinity of 29 Hotham Parade to evaluate and assess their suspicions about the premises. Police smelt a strong and consistent odour omitting from the premises, consistent with cannabis. This premise was leased to Seamus Doolan. 2. Police commenced surveillance at 29 Hotham Parade. Police observed a gold Toyota Prado (BY93LS), registered to Steven Worth, exiting the roller door with two males in the front seat wearing high visibilty vests. The vehicle was being driven by Steven Worth. Seamus Doolan was in the passenger seat. 9 December 20219 1. Police surveillance at Hotham Parade showed a Holden Commodore, registered to Seamus Doolan, drive into the driveway and shortly after the same car left with Doolan driving the vehicle. 2. Extraction fans could be heard withdrawing air from the premises at a time that would not be consistent with the factory being in operation. 10 December 2019 1. A car driven by Robert Worth was seen entering a Bunnings car park at Artarmon. Robert Worth was captured on CCTV inside Bunnings purchasing a P2 mask before leaving shortly after and driving to 29 Hotham Parade 11 December 2019 1. A car registered to Doolan was observed entering the George Place premises. A Prado registered to Steven Worth entering Hotham Parade. Kenneth McCudden was then observed driving into Hotham Parade and later photographed at Bunnings with the hanging hooks which he purchased before returning to Hotham Parade. 2. There was also a white van observed coming out of the roller door at Hotham Parade with three males, including Robert Worth in the front. 12 December 2021 1. Doolan was observed hiring a truck from Budget Rental, which he then drove to a customs and freight forwarding centre. Doolan loaded ten pallets onto the truck and drove it to McLachlan Avenue. 13 December 2021 1. Doolan was observed arriving at McLachlan Avenue in his car, using his buzzer to open the back gate. A car driven by McCudden entered the gates at McLachlan Avenue and he assisted Doolan in reversing the truck into the gate. Doolan was seen driving the Budget Truck out of McLachlan Avenue and into George Street, and then later leaving George Street and going to McLachlan Avenue. 2. Police made enquiries about the warehouse where the Budget Rental Truck had collected the pallets. Inside the black shrink wrap on the pallets had been a soil like substance. The consignment note identified the goods as a product called Coco Lite, a type of hydroponic soil imported from Europe. It was ordered by a Sydney based company which was the seller of hydroponic equipment. 3. This surveillance led Police to believe that the premises was being used for enhanced indoor hydroponic cultivation of cannabis. They applied for search warrants and, on executing the search warrants at each of the three premises on 16 December, they discovered a hydroponic set up with multiple grow tents, extraction fan systems, multiple cannabis plants with mercury vapour lamps and a sophisticated water irrigation system. 4. The offenders Ma and Eyles were arrested at the McLachlan Avenue premises, which was a two storey industrial warehouse, about 150 metres from Hotham Parade. Hotham Parade was also an industrial three level warehouse. A number of fingerprints from Trejbal were lifted from items at Hotham Parade, namely on two electronic timers, on power boards and transformers associated with the various grow tents. 5. A third industrial property at George Place, about a kilometre from the other two properties was also searched.The property was sub-let to Ma for a period of three years commencing 1 November 2019. Police located a lease agreement in the name of Zhang and $25,000 worth of cash. 6. The quantities of cannabis plants, found at the various premises are as set at in the table at [12]. 7. Fingerprints from Trejbal have also been lifted from items within the George Place property including on a food saver, various power boards, pedestal fans and transformers. A number of personal items belonging to McCudden were also located at the George Place property. 8. CCTV footage at George Place showed Trejbal speaking with Zhang on 13 December and walking around the car park on 17 December. It also shows him driving a Ford registered to him. 9. Doolan was arrested on the morning of 17 December. He was searched and found to have multiple sets of keys and electronic remotes on his person. He was cautioned and he admitted that the keys were used to access each of the three properties. 10. When Zhang was arrested there were a number of messages between Zhang and Doolan identified on WeChat in which Zhang had sought and received direction from Doolan, who was the de facto partner of Zhang's sister. 11. When McCudden was arrested at Bunnings Artarmon on 17 December, Police searched his van and found a key which he said it was for his garage. They found $7,370 cash, which he said was cash from his business. The cash was seized as proceeds of crime and is the subject of an application for confiscation. 12. He was taken to Chatswood Police Station and declined to comment in an interview. It was agreed that his role was to provide assistance to those involved in the cultivation, and the cash seized was for the purchase of cannabis. 13. In July 2020 police commenced a surveillance operation at Roseberry in order to locate Trejbal who was identified as one of the males who ran from George Place on the day the search warrant was executed. Police saw him getting into his car and arrested him. They found two pieces of paper with hand-drawn diagrams, with boxes and lines, and the word "water" written on it, a document which had the details of an electrical set-up and measurements, and an invoice from TLE Electrical dated 1 June in the name of the offender. The Crown agrees that his role was that of a worker or labourer. 14. On 24 December 2019 Steven Worth attended Manly Police Station. He declined to participate in an interview, but he consented to forensic procedures. 15. Robert Worth attended Liverpool Police Station upon his arrest on 23 December. He also declined to answer questions in an interview but consented to forensic procedures. Objective Seriousness of the Offending 1. I will turn to consider the objective seriousness of the offending in each case and later to the subjective material. I have been greatly assisted by written submissions from the Crown and counsel for the offender in each case, and for the reasons that I have outlined at the commencement of these remarks, I will summarise the submissions and my conclusions in a fairly abbreviated fashion. Seamus Doolan 1. The Crown points to the quantity of plants, the scale and sophistication of the enterprise, his role, which was central and important as the leasee of Hotham Parade. It was committed for financial gain and there was a degree of planning. It is not challenged that his objective criminality is more serious than that of Zhang and Ma, and is slightly below mid-range. 2. The Crown points to the fact that the offending was committed in company and that there was a degree of planning and financial gain as aggravating factors. 3. I accept as mitigating factors he has reasonable prospects of rehabilitation, and is unlikely to re-offend, he pleaded guilty and expressed remorse. Kenneth McCudden 1. The Crown also points to the number of plants, the scale and sophistication of the enterprise. The Crown submits his role can be characterised as falling somewhere between crop sitting and principal, highlighting his involvement in purchasing equipment for the operation, collecting the consignment of soil, and tending to the vent of a grow tent as shown by his fingerprints. I find that the objective seriousness of his offending is below mid-range, and of a similar order to that of Zhang and Ma. Jordan Trejbal 1. It is agreed that his role was described as either a worker or a labourer, there was a degree of planning. His role is slightly inferior to that of Ma and Eyles and Zhang. His subjective case, to which I will turn briefly, justifies a sentence to that of Ma, Zhang and Eyles. Steven Worth 1. I assess the objective seriousness of Steven Worth's offender as the lower end of the range. His car was observed entering and exiting the premises on two occasions, once as a driver. Robert Worth 1. Robert Worth was observed purchasing a mask at Bunnings before attending Hotham Parade. He was also observed leaving the premises in a van with two unidentified males. From the history given to the author of the sentencing assessment report by both Robert and Steven Worth, suggested that they had been initially engaged to assist in the cleaning of the factory and were not immediately aware of the cultivation operation. Those concessions do not elevate the objective seriousness beyond what has already been described. Subjective Cases Seamus Doolan 1. Mr Doolan's subject case, as is the case of the other offenders, is set out in the reports, the references and letters tendered on his behalf, none of which were challenged by the Crown, although they are treated with appropriate caution as pointed out in cases such R v Qutami (2001) 127 A Crim R 369. 2. Mr Doolan had an upbringing with little support and was separated from his family, his father abused alcohol, and he was a victim of child sexual abuse at the hand of a parish priest. I accept that a finding of special circumstances should be made given the diagnosis of post-traumatic stress disorder, his age, and his history of ill treatment at the hands of those in a position of authority. 3. I take account of the uncontroversial evidence about the impact of the COVID-19 pandemic on prisoners at this time, in terms of increased risk of exposure in a detention setting and the hardship faced by prisoners by virtue of states of uncertainty and suspense. 4. Mr Doolan reported that he became involved in the offending after being offered the benefit of payment of two thirds of his $900 weekly rent over an extended period. 5. He has previously served term of imprisonment of 18 months with a non parole period of 12 months for fraud offences in 2013. There is an earlier sentence for fraud in 2002 of one year and nine months with a non-parole period of nine months. Kenneth McCudden 1. Mr McCudden gave a history to Dr Nielssen that he entered a plea of guilty on the basis that he went to the house to purchase cannabis and was aware of the operation. However as the Crown points out the evidence shows that he was something more than a customer, and his affidavit does not assert what he said to Dr Nielssen. He was diagnosed by Dr Nielssen as having a substance use disorder and a gambling disorder. He experienced early trauma in his life, including his father leaving home when he was three years old to do a prison sentence, and not returning. He had an abusive and cruel step-father, and a disrupted education, and an early onset of cannabis and alcohol use. He was introduced to crime by older siblings who were also the subject of abuse at home. I accept there is, limited, Bugmy (Bugmy v The Queen (2013) 249 CLR 571) considerations to be taken into account in the light of the exposure to parental alcohol abuse and domestic violence, and general childhood depravation. As such his moral culpability is slightly lessened. 2. I accept that a finding of special circumstances be made so that he can have an extended period of supervision, light of his prospects of rehabilitation. Jordan Trejbal 1. At the time of the offending he was almost through an 18 months s 9 bond for affray, which was said to be an aggravating factor. 2. There is no specific evidence of financial gain or unexplained wealth. 3. He has the benefit of youth, and I take account of what was said in Clark-Jeffries v The Queen [2019] NSWCCA 56 as to sentencing youthful offenders. 4. He is in currently in custody as a result of having been refused bail on domestic violence matters, but it is agreed that his sentence should commence on 4 March 2021 and that any sentences imposed for the domestic violence matters will presumably take into account that fact. 5. I note I have an affidavit from his mother Carolyn White who notes the death of his father at the age of ten, and that he was an active sportsman and hard working until he became estranged from his family, and that he has suffered depression for some time. That would be a basis for a finding of special circumstances in his case in the light of his youth and the fact that it is his first time in custody. Steven Worth 1. Mr Steven Worth has a hearing disability and speech impairment, he suffers from depression and cognitive impairment, much of which arises from a traumatic brain injury he experienced as an 18 year old. 2. He is a person of good character with no prior convictions. 3. He is receiving treatment from a psychiatrist Dr Anthony Henderson. He acknowledged to Dr Henderson being asked by his father to assist a friend to remove rubbish from the workplace at Artarmon. 4. He was regularly bullied at school on account of his hearing loss. He is totally deaf in one ear and has limited hearing in the other ear, and he would turn to his father for emotional support. 5. He has expressed remorse. He now realises how all drugs are harmful and he never wants to be involved in something that harms people, and he regrets the offending behaviour. 6. He was diagnosed as having mild neuro-cognitive disorder due to the traumatic brain injury, major depressive disorder, social anxiety disorder with panic, and a cannabis use disorder, which, Dr Henderson says, had a significant role in the offending behaviour. 7. He does not have a history of violence nor conduct disturbances, significant illicit drug use, or any features of an antisocial personality disorder, and he is at a low risk of re-offending. I accept, as Dr Henderson points out, that a custodial sentence would interfere with continuing psychiatric and psychological treatment. 8. I have a lengthy letter of expressing regret, remorse and an apology from Mr Worth. He points out that his treatment from Dr Henderson has assisted him. 9. Despite his disability he is a man with some skill in the field of snooker and has represented his country overseas and won a number of championships. He has a number of favourable references from people involved with the sport.. 10. His mother, who is an individual support carer looking after the elderly, describes the loss of their father in September 2020., Both Steven and Robert Worth described the difficult period after their father's diagnosis with kidney cancer in March 2020, and the loss of their father who played a very big part in both of their lives. Both of her sons have expressed regret and remorse to their mother. 11. It s also clear that Steven and Robert Worth have significant family and community support. Mr Johnny Lewis, an international boxing hall of fame member, provides a reference for the pair and speaks highly of the work that both the brothers did in various boxing gymnasiums training young people. Robert Worth 1. Mr Robert Worth's subjective case is set out in detail in a lengthy report of Professor Stephen Woods, psychologist, who first consulted Robert Worth on 9 March 2020, and has continued treatment up until last week in their most recent consultation. Professor Wood's opines that he was suffering from melancholic grief at the time of his offending, due to the onset of his father's illness. 2. He is a man with no prior history of criminal offending or behaviour suggestive of any antisocial tendencies. He has strong family support, stable accommodation, and has maintained continuous employment. He has expressed remorse and regret and pleaded guilty, as have the other offenders. He is receiving continuing treatment from Professor Woods. He is an intelligent and emotionally mature young man. He has realistic long term socially appropriate plans and has demonstrated a strong commitment to rehabilitate himself. 3. He expresses in a letter to the Court his regret and remorse. He describes the benefit his has experience from his consultations with Professor Woods. He has become involved in the sport of dodgeball and has contributed significantly to the sport.As I have indicated, he has the support of a number of people from that sporting community, as well as from Mr Johnny Lewis. Orders 1. These remarks summarise what has been set out in extensive written submissions and need not be outlined in any further detail here. The orders that I will make are as I have indicated earlier, namely: Seamus Doolan 1. He is convicted of the offence. 2. I impose a sentence of three years and six months, commencing 17 December 2019, 3. I impose a non-parole period of 21 months expiring 16 September 2021. 4. I find special circumstances. 5. Sequences 7-11 are withdrawn and dismissed. Kenneth McCudden 1. For the reasons that I have set out, I will stand the matter over to 26 July 2021 at Newcastle District Court. 2. The parties are granted leave to appear by AVL 3. Bail is to continue. 4. As I have indicated a sentence will be imposed on that date of two years and ten months commencing 5 May 2021, with a non-parole period of 16 months expiring 4 September 2022. Jordan Trejbal 1. Mr Trejbal is convicted of the offence. 2. I impose a sentence of two years and seven months commencing 4 March 2021. 3. I impose non -parole period of 14 months expiring 3 May 2022. 4. I find special circumstances. Robert and Steven Worth 1. Mr Robert Worth and Mr Steven Worth are convicted. 2. For each offender, I impose a sentence of imprisonment of 22 months, to be served by way of Intensive Corrections Order. 3. The standard conditions apply as well as the additional condition of undertaking 200 hours of community service work. 4. The offenders are to report by telephone to Liverpool Community Corrections Office by next Friday 16 July at 5.00pm. 5. Sequences 4 and 5 are withdrawn in each case. ********** Amendments 05 December 2023 - Correct typographical error in column 2, row 2 of the table at [12]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023