R v David Lindsay JUSTIN [2013] NSWDC 163

District Court New South Wales

Medium Neutral Citation: R v David Lindsay JUSTIN [2013] NSWDC 163 Hearing dates: 22 February 2013 Decision date: 22 February 2013 Before: Murrell SC DCJ Decision: Catchwords: CRIME- Sentence- cultivation of cannabis (two) - commercial quantity and large commercial quantity - personal medicinal use and supply to friends - special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: The Crown David Lindsay Justin Representation: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Defence) File Number(s): 2011/268468; 2012/156731

Sentence 1The offender adheres to pleas of guilty entered at the earliest reasonable opportunity in relation to two groups of offences. 2The first group includes an offence committed on 19 August 2011 of cultivating the large commercial quantity of cannabis plants by enhanced indoor means. That offence carries a maximum available penalty of 20 years imprisonment and a standard non-parole period of 10 years. The second offence in this group is an offence that between 1 March and 19 August 2011 the offender used electricity without authority. That offence carries a maximum available penalty of 5 years imprisonment. There is no standard non-parole period. 3The second group of offences was committed on or about 16 May 2012, while the offender was on bail for the first group of offences. It comprises three matters. There is an offence that on 16 May 2012 he cultivated by enhanced indoor means a commercial quantity of cannabis plants. That offence carries a maximum available penalty of 15 years imprisonment. The second offence in this group is that, between 20 January and 16 May 2012, the offender used electricity without the authority of the provider. That offence carries a maximum available penalty of five years imprisonment. The third offence is that, on 16 May 2012, the offender possessed a prohibited firearm without a licence, being a replica pistol. That offence carries a maximum available penalty of 14 years imprisonment and a standard non-parole period of 3 years. In relation to the cultivation matter on 16 May 2012, I am asked to take into account on a Form 1 an offence of altering an electricity meter. 4The offender has been in custody since 16 May 2012, when he was arrested for the second group of matters. The sentences will commence on that date. 5In relation to the first group of offences, the facts are set out in Exhibit A. On 19 August 2011 police executed a search warrant at the offender's premises in Lees Avenue, Casino. The offender cooperated with the search. Police noticed that the mains power for the electricity had been tampered with. The electricity had been rewired to bypass the meter. In a room in the premises, police located 63 cannabis plants with an average height of just under a metre. In a padlocked room, they found 154 cannabis plants with an average height of 1 metre. In the bathroom/toilet area, they found 63 cannabis plants with an average height of 20 centimetres, bringing the total number of plants to 280. Police also located a substantial amount of equipment associated with the growth of the plants, including heat lamps and shades, watering equipment, a large carbon dioxide canister and fertiliser. They observed cannabis stalks in a drying room. In the kitchen, they found exercise books containing instructions for the growing of plants. They did not locate any indicia of supply. 6The offender told police that he was primarily growing the plants for personal use and that he used approximately 5 grams of cannabis a day for pain relief. He also stated that he gave some cannabis to friends. In evidence, he confirmed that position. He said that he had not sold any cannabis and that he had had no intention of selling it. He gave evidence that he had purchased the seeds online, that it was a medicinal variety of cannabis, and that he had purchased cultivation equipment from a friend for about $300. He had found from experience that it was best to grow the cannabis indoors. He had expected to harvest 5 to 14 grams of cannabis from the plants that survived to maturity. 7The objective seriousness of this matter is relatively low. First, the quantity is low for a large commercial quantity. The commercial quantity is 200 plants. In this case, the quantity was 280 plants. Second, there is no evidence that the offender intended to obtain a commercial advantage from growing the plants. Third, there is evidence that the actual supply of the drug to others was to be limited. The bulk of the plants was for personal consumption. Nevertheless, general deterrence and other sentencing purposes are important. It is not only a question of protection of the public. 8The facts in relation to the second group of matters are set out in Exhibit B. While the offender was on bail for the first group of matters, on 16 May 2012 police attended a different Casino address of the offender, where they executed a search warrant. At those premises, police observed a security surveillance system consisting of four cameras that were focussed on the entrances and key areas within the premises. The electricity meter box had been tampered with so that electricity was bypassing the meter. A very large quantity of electricity had been consumed without payment. In a kitchen cupboard, police located a black replica handgun resembling a Glock pistol. The offender said that he had found the gun near his premises and he had assumed that children had left it there. In one room, police located 33 mature cannabis plants about one metre in height. In a second room, they located 60 cannabis plants about 30 to 40 centimetres in height and some cuttings in water. In the bathroom they located 53 cannabis plants about 20 to 30 centimetres in height and 6 cannabis plants 10 centimetres in height. The total number of plants was 152. Police located equipment for growing the plants: heat lamps, a fan, growth products, timing devices and the like. They located small quantities of cannabis leaf, resealable plastic bags and digital scales, but no other indicia of supply. 9The offender said that the bags were not for use in relation to supply or selling. He said that he had acquired the digital scales in connection with personal consumption. At one stage, he had thought that he was being short-changed. That explanation is not convincing. However, in the context of the limited evidence suggesting actual supply and a clear background of personal consumption for medical reasons, I am not satisfied beyond reasonable doubt that he had intended to sell the cannabis in his possession. He may well have been intending to supply some to friends. The Crown has not urged that I should make any other finding in that regard. 10During the first search, police had failed to locate the growing equipment. The offender used the growing equipment for the second crop. He ordered more seeds through the Internet and found some seeds left over from the earlier operation. The offender said that his medical condition had caused him to exercise poor judgment in relation to committing the second group of offences. 11In relation to the second group of offences, 50 plants is the commercial quantity for cultivation. The objective seriousness of this matter is significant. The quantity is substantial, given the range for a commercial quantity of between 50 and 200 plants. In this case, the quantity was 150 plants. Further, at the time of the offences, the offender was on bail for the first group of matters. 12The offender is 45 years of age. He has a criminal history in Victoria in the 1990s, including a couple of trafficking cannabis matters. The resulting sentences were of no great moment. There are a number of NSW driving matters. There are matters in 2007 and 2008, of drive while disqualified, but nothing in connection with drugs. He has not previously served a sentence of imprisonment. In 2007 and 2008 he received a number of lengthy section 9 bonds and he was supervised. His performance under supervision was reasonable and he did not breach the bonds. There is nothing in relation to trafficking or use of drugs in recent times. 13The offender has experienced developmental and behavioural problems. He has coped with his problems to the extent that he has been able hold down a full time job. Until 2006, he was a full time motor mechanic and he had a good work history. 14At one stage, the offender had a heroin addiction. However, he has not used heroin for several decades. He has been on a methadone maintenance program. Currently, his methadone intake is at a very low level. He will come off methadone if those treating him consider that to be appropriate. 15On 1 September 2006, there was a very significant event in the offender's life. He was the victim of an assault, which left him with a traumatic brain injury. He complains of memory deficits, emotional lability, black outs, migraine headaches, anxiety and depression, poor attention and concentration, and a number of symptoms that are often associated with brain injury. He has received treatment through the North Coast Brain Injury Rehabilitation Service. The precise nature of the offender's difficulties and the full extent of possible treatment have not yet been fully explored. The assault left the offender with behavioural problems and led to the breakdown of his relationship. His then partner was unable to cope. He commenced a new relationship with a person who has been described as a carer and a friend. She continues to support him and she has come to Court today. She is prepared to assist him with accommodation and other matters when he is released from custody. 16After the assault, the offender was unable to return to his former employment as a motor mechanic. He recovered to the extent that he was able to do part time work. He may able to build up his work capacity to the extent that he can work full time. A friend has offered him work as a mechanic. 17Twelve months prior to the commission of the first cultivation matter, the offender ceased being supervised on a section 9 bond. He began to feel that he was not functioning properly on the medication that he was taking. He became anxious and depressed. He was suffering from bad migraines. On the advice of a "friend", he decided to self-medicate by using cannabis that he was told had medicinal properties. He did some research on the internet, which confirmed the advice of his friend. He ordered seeds on line and began to commit the offences. He found the cannabis very helpful in relation to his migraine headaches, anxiety and depression. 18The offender accepts that cannabis is illegal, and that he must resort to legal means of dealing with his medical issues. He still suffers from sleeping problems and anxiety, for which he has been medicated while in custody. He is genuinely remorseful in relation to the offences. He understands that there is a real issue of relapse and he will have to address relapse prevention. He is prone to anxiety. He presented in the witness box as a very nervy person. He has been housed with people whom he understands to be violent offenders, which makes him particularly anxious. For a person who suffers from brain injury problems and anxiety, depression and migraines, incarceration would be particularly difficult. To a limited extent, I accept that his psychological problems and medical condition mean that he is a less suitable person to serve as a vehicle for a message of general deterrence. However, I do not accept that he is unsuitable. General deterrence remains a relevant sentencing purpose. 19In sentencing the offender, the Court has regard to the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 including general deterrence, specific deterrence and the other matters referred to. 20Special circumstances apply in this case. They are the accumulation of sentences, the traumatic brain injury and the psychological problems from which the offender suffers that make imprisonment worse for him, and the fact that this is his first significant period in custody. 21I am required to consider the aggravating and mitigating factors under s 21A. The only aggravating factor relates to the second group of matters. At the time of the offences, the offender was on conditional liberty. In relation to mitigating factors, I have referred to the plea of guilty at the earliest reasonable opportunity, which entitles the offender to a 25% per cent discount for utilitarian value. I accept that he has good prospects of rehabilitation, provided he is supported over a significant period of time in relation to addressing his psychological and brain injury problems. There will be little risk of re-offending if the offender is given adequate support. 22The offender is convicted of each matter. I impose the following sentences. (1)For the offence of cultivating the large commercial quantity of cannabis committed on 19 August 2011, the starting point was four years imprisonment, less one year for the early plea of guilty, resulting in a sentence of three years imprisonment. You are sentenced to a non-parole period from 16 May 2012 to 15 May 2014 and a balance of term of one year. The sentence expires on 15 May 2015. (2)For the offence of using electricity without authority, I impose a concurrent sentence of three months imprisonment from 16 May 2012 to 15 August 2012. (3)In relation to the offence on 16 May 2012 of cultivating the commercial quantity of cannabis and taking into account the matter on the Form 1, you are sentenced to three years imprisonment from 16 May 2013. I set a non-parole period to expire on 15 May 2014 and a balance of term of two years. The sentence expires on 15 May 2016. (4)In relation to the offence of using electricity without the authority of the provider, the offender is sentenced to a concurrent period of six months imprisonment from 16 May 2013 to 15 November 2013. (5)For the possess prohibited firearm offence, he is sentenced to a fixed term of imprisonment of one month from 16 May 2013 to 15 June 2013. He is eligible for release to parole on 15 May 2014. I recommend that parole be subject to the conditions that the offender report to the Probation and Parole Service within two working days of release and submit to their supervision in relation to drug rehabilitation (particularly relapse prevention issues), treatment for the traumatic brain injury and other psychological problems. 23I have specified the special circumstances. I have imposed an effective sentence of four years imprisonment with a two-year non-parole period. The offender will be eligible for release to parole in two years. It will be up to the Parole Board as to whether he is in fact released at that stage. 24In relation to the matter on the s 166 certificate, pursuant to s 10A of the Crimes Sentencing Procedure Act 1999, the offender is convicted and no other penalty imposed.