R v Spiers [2013] NSWDC 263

District Court New South Wales

Medium Neutral Citation: R v Spiers [2013] NSWDC 263 Hearing dates: 29 August 2013; 13 December 2013 Decision date: 13 December 2013 Before: Berman SC DCJ Decision: Referred for assessment as to the offender's suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Form 1 - Drug Supply - Cannabis cultivation - Enhanced indoor means - Immediate admissions Category: Sentence Parties: The Crown Trevor John Spiers Representation: Director of Public Prosecutions - Crown O'Brien Solicitors - Offender File Number(s): 2013/92965

SENTENCE 1HIS HONOUR: The involvement of Trevor John Spiers with drugs began many years ago. He had been a recreational user of cannabis for 20 years and was smoking three or four joints a week. A remark by a person who supplied him with cannabis led to him to consider growing his own and so he set up a hydroponics cannabis growing operation. He became quite keen on what he was doing, enjoying not only the cheap cannabis but also the horticultural side of the activity. 2But of course things started to escalate. He began by selling cannabis to about seven people who were recreational users of cannabis making $500 or $600 each week. After that he decided to expand his operation doubling the number of plants he had and began selling to a further eight customers making 15 in all. He was using the approximately $1,000 a week that he made from his illegal activities to pay his mortgage and various bills. He was also in the process of setting up a small business. He is a carpenter who works in scenery construction and events management. He has designed a decorative piece and he wanted to set up a business supplying those items. He could have applied for a loan of course but he saw supplying cannabis for money as a shortcut. 3The result is that he became something of a significant drug supplier and cannabis cultivator. When he was arrested on 26 March 2013 police found a substantial hydroponics growing operation in his back shed, some harvested cannabis ready for supply and some cannabis resin which the offender had purchased and some of which he was going to on-supply. He now faces sentence for growing cannabis by enhanced indoor means and supplying cannabis. When I sentenced him for that second matter he asked me to take into account an offence of supplying cannabis resin. 4The Crown was able to prove the supply cannabis offence not only because a harvest of cannabis was found in the shed but because of immediate admissions that Mr Spiers made to police. Were it not for those admissions the Crown would have had no evidence capable of establishing earlier supplies by Mr Spiers. The supply charge related to 4 kg of cannabis made up of 1.3 kg seized by the police, plus 2.7 kg which Mr Spiers admitted to supplying in the 12 months before his arrest. 5Consistent with his immediate admissions to police he pleaded guilty to these offences at an early stage and so I will discount the sentence as I would otherwise have imposed upon him by 25% to reflect that circumstance. 6Mr Spiers is now 41 years of age and somewhat remarkably, given the fact that he is facing the distinct possibility of full-time gaol, he has no previous criminal convictions. He was born in the UK, came to Australia on a working holiday some years ago, and remained here as a permanent resident after forming a relationship with a woman with whom he had two children. Their marriage ended amicably and they share the custody and care of the two children. The work that Mr Spiers does is somewhat intermittent but from what I can see he appears to have been industrious in his legal as well as his illegal activities. 7References were tendered from those who knew him well. They express their surprise at what Mr Spiers has been up to, his otherwise good character and good works that he has done for others. Mr Spiers himself gave evidence that whilst he was sitting in the police cell having been arrested a strange relief came over him. He was happy that the stress of conducting an illegal cannabis growing operation was over. 8When he first appeared before me he told me that he had not used drugs since the day of his arrest, that he had some work lined up on the new Mad Max movie and he was hoping to go into a partnership with another man regarding supply and hire of his decorative pieces. Given that it was only a relatively short time between his arrest and appearing for sentence before me, I did not consider that he had been able to demonstrate, rather than merely promise, rehabilitation. Accordingly, with no opposition from the Crown, I adjourned the matter to today. 9Evidence tendered today reveals that Mr Spiers has demonstrated rehabilitation. He has regularly gone for urinalysis which has revealed that he has used no illegal drugs. Any cynicism that one might feel about the possibility that Mr Spiers was using drugs but just not when he knew that it was time for urinalysis to occur can be put to one side, because Mr Spiers was a heavy cannabis user and cannabis is a drug which remains in one's system for a very long time after it has been used. I therefore have no hesitation in accepting beyond question that Mr Spiers has used no drugs in the period of the remand. He has continued to work and a pre-sentence report obtained for the purposes of today's proceedings speaks highly of him. Mr Spiers has achieved an A grade pass over the past few months. 10However, rehabilitation of an offender is but one aspect that a judge looks at as part of the sentencing process. In a drug supply case the starting point is always that where someone is trafficking to a substantial degree full-time custody is required unless there are exceptional circumstances. That starting point is subject to one qualification which I will mention later. 11Clearly Mr Spiers was trafficking to a substantial degree but I am satisfied that there are a number of circumstances which in combination can be described as exceptional justifying a sentence of other than full-time imprisonment. Those circumstances are that Mr Spiers has demonstrated rehabilitation, that he had no prior convictions, that this was a one man operation. I should explain that criterion. Part of the criminality involved in drug supply activities includes the idea that it is worse for a combination of offenders to breach the law than simply an isolated individual. 12I also take into account as one of the circumstances demonstrating exceptional circumstances that this was a relatively small scale growing and dealing operation. The commercial quantity of the cannabis supplied is 25 kg whilst in this case Mr Spiers had 1.3 kg for the purposes of supply when police arrested him. Indeed he had earlier supplied 2.7 kg, making a total of 4 kg, about one sixth of the commercial quantity and the 2.7 kg was supplied over the course of a year. 13Another factor is that the drug in question was cannabis which has a particular place in the hierarchy of drugs with offences relating to that drug carrying lower maximum penalties than offences involving other drugs. 14Also Mr Spiers is entitled to what I will call a partial Ellis discount regarding his admissions of previous sales. And he was deeply remorseful and demonstrated reform through volunteer work with people such as the Salvation Army. And I repeat, he has given up cannabis completely. 15Now returning to a matter I hinted at earlier, it must be remembered that the principle of law which I have been discussing was laid down at a time when intensive corrections orders were not available as a sentencing option. No case that I am aware of handed down by the Court of Criminal Appeal has looked at whether this new sentencing option affects the principle laid down before ICOs were introduced. 16In all those circumstances I am satisfied that whilst a custodial sentence is required, a sentence of two years or less is likely to be imposed. Mr O'Connell submitted that a suspended sentence was an appropriate outcome. If I were to focus only on Mr Spiers' rehabilitation of course that would be a sentencing outcome which would be highly likely to be imposed. But as I said earlier in these remarks, I need to do more than simply focus on the question of Mr Spiers' rehabilitation. 17What he did was commit for a considerable period of time a serious criminal offence. The criminal law needs to punish him for what he has done. The criminal law needs to deter others who might be tempted to make money as Mr Spiers did through growing and supplying cannabis. And in the circumstances of this case I am not satisfied that those aims of sentencing are appropriately achieved through the imposition of a suspended sentence. Nevertheless I consider it appropriate to refer Mr Spiers for assessment as to his suitability to serve a custodial sentence that I will be imposing upon him by means of an intensive corrections order. 18I will refer Mr Spiers for assessment as to his suitability. His bail is continued until then. I will delete the requirement that Mr Spiers continue to undergo fortnightly testing. So the only conditions of his bail is to appear before me on 7 February at 2 o'clock and he is to use no drugs at all.