R v Hyland [2020] NSWDC 933

District Court New South Wales

Medium Neutral Citation: R v Hyland [2020] NSWDC 933 Hearing dates: 18 December 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: Par [29]. Catchwords: CRIME – SENTENCE - Cultivation of a number of cannabis plants, not less than the commercial quantity applicable for that prohibited plant – Sentence of imprisonment – Suitable to be served by way of intensive correction. Legislation Cited: Crimes (Sentencing Procedure Act) 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: R – Crown Offender – Susan Gai Hyland Representation: R – Paterson, D. Offender – Healey, S. File Number(s): 2020/00029714 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: This morning's proceedings are somewhat unusual. A 71 year old lady and her son stand for sentence because each of them participated in a crime. That crime was the use of a residential premises at Bexley North for the cultivation of a number of cannabis plants, not less than the commercial quantity applicable for that prohibited plant. 2. The mother, Ms Susan Gai Hyland, was the lessee of the premises and the occupier. She had permitted her son, Zoran Kuzmic, to reside with her and allowed him to cultivate a cannabis plantation within her residence. In addition to participating in that crime, the son, Zoran Kuzmic, was cultivating a cannabis crop in another property at Hurstville. He also stands for sentence for two offences of driving whilst disqualified. I shall deal firstly with the case against Ms Hyland. 3. Ms Hyland, as I mentioned, is 71-years-old. She comes before this Court as a woman of prior good character. In her 71 years she has committed no other crime in this State or elsewhere in the Commonwealth of Australia. In January 2020 the police commenced an investigation into the suspected cultivation of cannabis by enhanced indoor means at premises at 76 Oliver Street, Bexley North, and at other places. The premises at Bexley North were rented by Ms Hyland and were her place of abode. On 29 January 2020, the police applied for and were granted a search warrant for the premises. Ms Hyland was present at the time of the execution of the search warrant, as it was, as I said, her place of residence. 4. Within the premises, the police located an enhanced indoor hydroponic set up, with one room converted into a growing room. That room had a self-watering system and heat lamps with charcoal ventilation filters. All told, the police found 117 cannabis sativa plants in the premises at Bexley North. Fifteen of the plants were over one metre in height and 102 of them were below one metre. A small number of plants were being grown in Ms Hyland's bedroom. They were no more than 30 centimetres in height, growing in two plastic tubs underneath a shelf. 5. Ms Hyland was arrested on 29 January 2020, but declined to be interviewed by the police. She was given bail three days later. It is accepted that Ms Hyland entered her plea of guilty at the earliest available opportunity and is entitled to a statutory discount of 25% of the sentence to be passed upon her. She entered her plea on the basis that she permitted the cultivation to take place in her premises, thereby bringing herself within the statutory meaning of the phrase "take part in" contained in s 6(c) of the Drug Misuse and Trafficking Act 1985. Her son, the other offender, Zoran Kuzmic, admits that his mother took no active part in the cultivation and that he used her for the purpose of maintaining this cannabis plantation.