R v Featherstone [2023] NSWDC 240

District Court New South Wales

Medium Neutral Citation: R v Featherstone [2023] NSWDC 240 Hearing dates: 28 June 2023 Date of orders: 6 July 2023 Decision date: 06 July 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [59] Catchwords: CRIME — Drug offences — Enhanced indoor cultivate cannabis for commercial purposes CRIME — Drug offences — Possess prohibited drug CRIME — Drug offences — Supply prohibited drug — Commercial quantity Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Mesterovic v The Queen [2016] NSWCCA 140 Texts Cited: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ Category: Sentence Parties: Rex (The Crown) John Featherstone (Offender) Representation: Counsel: Anderson for Featherstone

Solicitors: Bertuzzi for The Director of the Office of Public Prosecutions File Number(s): 2022/00082390 Publication restriction: NA

JUDGMENT 1. John Featherstone, the offender, appears for sentence in respect of the following two offences: 1. In breach of section 23(1A) of the Drug Misuse and Trafficking Act ("DMTA") he cultivated a prohibited plant namely cannabis of not less than the small quantity but less than the commercial quantity and being 13 plants by enhanced indoor means. The maximum sentence is 15 years imprisonment and/or 3500 penalty units. There is no standard non-parole period. This offence will be referred to as "the cultivate offence". 2. In breach of section 25(2) DMTA he supplied a prohibited drug (not cannabis) in an amount no less than the commercial quantity. That drug was psilocybin. The maximum penalty for that offence is 20 years imprisonment and or 3500 penalty units. The offence has a standard non-parole period of 10 years. This offence will be referred to as the "supply offence". 1. I take the maximum sentences and the standard non-parole period in respect of the cultivate offence into account as legislative guideposts indicating the legislature's view of the seriousness of the offences to assist in arriving at the appropriate sentence. 2. In respect of the cultivate offence there are a further three offences to take into account by way of the Form 1 procedure. Those three further offences are as follows: 1. In breach of section 10(1) DMTA being in possession of 6 g of cannabis leaf; the maximum sentence for that offence is 2 years imprisonment and/or a fine of 20 penalty units; 2. A second count in breach of section 10(1) DMTA of being in possession of 3 g of cannabis seeds; the maximum sentence for this offence is 2 years imprisonment and/or a fine of 20 penalty units; 3. In breach of section 25(1) of the DMTA, supplying a prohibited drug namely cannabis in the amount of 1.5 kg. I note that is an indictable quantity but less than a commercial quantity so that the maximum sentence for that offence when dealt with on indictment is a term of imprisonment of 10 years and/or a fine of 2000 penalty units. 1. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. The point of indicating the maximum penalties for the other offending is to indicate their seriousness to assist in determining just how much greater weight should be given to the sentence for the principal offence, but at the same time it must be remembered that the sentence arrived at needs to be in proportion to the objective seriousness and criminality of the principal offence. In other words there is a range along which the sentence for the principal offence will ultimately come to rest, and the more serious the Form 1 offenses the greater basis there is for the sentence ultimately being further along the available range of sentence.