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. Antecedents 1. When one considers Ms Hyland's background, one can understand why she may have succumbed to manipulation by her son. She was born in Sydney. Her father was a bricklayer and her mother a dental nurse. She has three sisters and one brother. Two of her sisters suffer from major illnesses. Her sister, Sandra, suffers from rheumatoid arthritis. She lives in south-east Queensland. She is one year younger than Ms Hyland. Another sister, Jill, resides on the Central Coast. She is suffering from progressive Parkinson's disease and is supported by the NDIS. She is 66 years old. Quite acceptably and naturally, the offender, Ms Hyland, is concerned that, should she be incarcerated, she may miss the funeral of one of her sisters who is gravely ill. Her other sister is an evangelical pastor and has travelled from Adelaide to support the offender in recent times. 2. Her brother is an electrician by trade and has provided the offender with support by way of surety for her bail, and he permitted her to reside in his premises at Stanwell Park until the offender moved to live with her granddaughter and the granddaughter's other grandmother in Coniston, a suburb of Wollongong. 3. The offender tells me that she had a normal childhood. She attended Padstow Public School, then Lugarno Public School, and then Illawong Public School. She tells me in her affidavit that the reason that she moved primary schools so much was because her family moved premises "a lot." However, all those places are relatively close, the Lugarno ferry having been replaced by the Alfords Point Bridge which now provides access between Lugarno and Illawong. 4. The offender then attended Penshurst Girls' High School, which she left at the end of year 9. She then did a secretarial course for 12 months, thereafter working as a secretary for some four years. She did some modelling work for a short time. She then went into real estate. Her father, a bricklayer, as I said, had turned to real estate himself. Both her mother and father and the offender worked in real estate. 5. The offender first married at the age of 25 in 1974. She had her first son shortly after her marriage. However, her first husband was abusive and the abuse was substantial. In 1980, that marriage ended when the offender's first son was six years old. In 1984, at the age of 35, she married her second husband. Shortly after that marriage, her second son, Zoran Kuzmic, the other offender, was born in May 1984. Prior to their marriage, the offender and her second husband had lived together for 18 months. 6. The offender's second husband was a property developer with a Serbian background. He was also an abusive husband. They were living at Stanwell Tops in a property, which was somewhat isolated from other properties and which facilitated the second husband's abusing the offender. Paragraph [25] of the offender's affidavit is this: "On one occasion, my second husband was giving me a severe beating. I believed at that time that he was going to kill me. Zoran walked out and I looked up and saw my second husband stare at Zoran - our child - as he watched his father beat me. I always got the impression at that moment that what ran through my husband's mind was that if he killed me, our son would be a witness and he would have to kill him too if he saw it. Because he stopped beating me and walked away. It was my first impression at the time of the incident which always stayed with me." 1. Shortly after that episode, the offender became suicidal. The offender sought the assistance of the local police, but they were unable to assist her by providing any alternative accommodation, such as a refuge or a hostel. They advised the offender not to return to live with her husband at Stanwell Tops. However, she had nowhere else to go. 2. Her second husband was forced into bankruptcy. His creditors came after assets that were owned by the offender. She was also forced into bankruptcy. However, her bank supported her and permitted her to sell her own properties without the bank exercising its rights as the mortgagee. The offender's second marriage ended when Zoran was about six years old in 1990. She never re-partnered and essentially raised her two sons by herself. 3. Zoran was to get into trouble in high school and was sent to live with extended family at Uralla. He managed to complete the higher school certificate whilst in the country. He returned to live with the offender for a short while, then went and sought to live elsewhere, but returned from time-to-time to live with his mother. 4. On 10 May 2018, two offenders broke into Ms Hyland's home. One of them held a knife to her throat and demanded money. She had nothing to give them and they decamped. They were subsequently detained by the police and imprisoned. However, that left Ms Hyland with fears that if she was sentenced to a custodial sentence, she may be subject to retribution on behalf of those offenders when she is in the prison system. Furthermore, Ms Hyland feared living alone after the event of 10 May 2018. She felt safe if her son was living with her. Zoran moved to live with her, and initially things were going well. However, eventually she suffered him to establish the hydroponic cultivation of the marijuana crop, which led to her arrest. 5. As might be expected of any person who is in their late 60s or early 70s, the offender has a number of medical conditions which are set out in her affidavit and to which I need not refer. She is currently subject to a mental health care plan and that is understandable. Any person who stands for sentence, who may be sentenced to full-time custody, would be unusual if he or she did not suffer from anxiety and depression. That is completely normal for anybody in the position in which this lady finds herself. Arrest and bail 1. As I said, the offender was arrested on 29 January 2020 and granted bail on 31 January 2020. Her conditions of bail were onerous. She was required to live with her brother at Stanwell Park. She was required to report to the Wollongong police station daily between 8am and 8pm. She was required to observe a curfew between 9pm and 6am. She was required to make no contact with her son, Zoran. She was not permitted to enter the suburbs of Bexley North or Hurstville. She was not permitted to take alcohol or any drug unless such substances were prescribed by a doctor. The only person that I know of who had alcohol prescribed for him was Sir Winston Churchill, who managed to have alcohol prescribed for him when visiting the United States of America during prohibition. 2. The prohibition on returning to Bexley North prohibited the offender from accessing her personal belongings, prevented her from having access to her motor vehicle which was parked there, prevented her from removing her furnishings and the like from the house and prevented her from bringing her occupation of the leased premises to an end. 3. On 21 February 2020, the Local Court at Sutherland was gracious enough to make one minor amendment to the terms of the offender's bail. She was permitted to enter Bexley North or Hurstville if accompanied by a police officer or police officers. However, the police did not have the time to stand by as the offender collected and packed up and removed her belongings from the house in which she had resided prior to her arrest. 4. However, there was a further bail variation by Magistrate Stapleton on 23 March 2020. She was only required to report to the Police at Wollongong on Mondays, Wednesdays, and Fridays. She was permitted to live in Coniston, but the curfew remained and the prohibition on being in contact with her son remained. However, she was permitted to enter Bexley North or Hurstville to collect her personal belongings without the police needing to be with her. Eventually she managed to collect what remained of her personal belongings and to clean thoroughly the premises and to vacate them. That only occurred on 27 April this year. 5. Paragraph [48] of the offender's affidavit is this: "The day finally came to remove what was left in the Oliver Street house to give vacant possession to the agent on 27th of April. When I arrived at 8:00am after driving up from Wollongong, I discovered that the agent had changed the locks and was refusing me access to collect my possessions. I had the removalist booked who was waiting. It had taken me a long time to get to that point. I was beside myself. I had to get my solicitor to intervene and eventually, the agent agreed to let me in to remove the items inside. It was an incredibly stressful experience." 1. I mentioned the offender collecting what was left of her household and personal belongings. During her absence from the premises after her arrest and giving up possession on 27 April, there were three break-ins into the house and many of her personal effects were stolen, such as jewellery, cosmetics, clothing, and some of her son's clothing which she had packed into boxes. In particular, there was one item of jewellery which was very dear to her which has not been recovered by the police. Release from custody 1. The offender's affidavit sets out in detail what has happened to her between her release from custody and settling down in Coniston, and what happened to her could easily be described as a form of extra-curial punishment. The onerous conditions of bail to which she was subject, and has remained subject until today, again should be seen as some form of punishment. 2. The offender is living with Lisa Rankin in Coniston. Ms Rankin is the mother of the offender's granddaughter, Portia, who is the daughter of Zoran Kuzmic, the offender's son. Ms Rankin has provided a letter to the Court. The substance of that letter is this: "I have known Susan since the birth of my daughter (her granddaughter). However, recently Susan has been staying with both my daughter and I, in a private rental in the Wollongong area. In this time it has been extremely helpful having Susan around to assist me as I am legally blind. Since staying with us, Susan has been able to assist me with all duties within the house and been a huge saviour with transport. She has been able to assist me with shopping and attending appointments. Susan has spoken in depth about the pressure she felt while living in Bexley North. She has spoken of the relief she feels now living without the pressures of the other house and talked about the regret of being involved with the situation. It has truly been a peace of mind having her help. Susan is a quiet, gentle and loving grandmother and her assistance has been greatly appreciated. Without her assistance I may have to go back on the NDIS, which is at a great cost to both myself emotionally and financial to the government NDIS program." 1. The circumstances in which the offender is now living provides assistance to her son's former partner, to the mother of her granddaughter, and to her granddaughter herself. Such assistance is clearly valuable. Consideration 1. Some form of custodial sentence is called for. My experience is that those permitting or allowing their places of abode to be used for the manufacture of illicit drugs or the cultivation of prohibited plants must suffer a custodial sentence. Doing the best I can, I start the current sentencing exercise with a head sentence of two years. I discount that by 25% because the offender is entitled to a statutory discount of 25% of the sentence to be passed upon her. That reduces the head sentence to 18 months' imprisonment. 2. I have come to the view that a full-time custodial sentence is, in the special circumstances of this case, not required. A full-time custodial sentence is not required because of the offender's prior good character, her age, health, the difficulties in which she has found herself since being arrested for this offence, the forms of extra-curial punishment that she suffered, including onerous bail conditions, the fact that she is now performing a valuable service to other members of the community, and the fact that she is truly contrite for the role she played in this cultivation, that contrition and remorse being evident from her affidavit. 3. I intend to order that the sentence by way of intensive correction in the community. She will have to report to the Wollongong Community Corrections Office. 4. Susan Gai Hyland, on the charge that between 15 January 2020 and 29 January 2020 at Bexley North in this State you did cultivate and knowingly take part in the cultivation of a number of prohibited plants, namely cannabis, being not less than a commercial quantity applicable to that prohibited plant, you are convicted. Under s 8 of the Crimes (Sentencing Procedure Act) 1999. I sentence you to imprisonment for a term of one year and six months commencing today, to be served by way of intensive correction in the community. The terms of the order are: 1. You must not commit any offence; 2. You must submit to supervision by a community corrections officer; 3. You must abstain from drugs; and 4. You are to report to the Community Corrections Office at Wollongong within four business days. 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: 08 July 2022