R v Clarke [2014] NSWDC 35

District Court New South Wales

Medium Neutral Citation: R v Clarke [2014] NSWDC 35 Hearing dates: 7 March 2014 Decision date: 07 March 2014 Before: Berman SC DCJ Decision: Taking into account the matter on the Form 1, sentenced to a period of imprisonment consisting of a non-parole period of 4 years and a head sentence of 7 years. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Cultivate a large commercial quantity of cannabis by enhanced indoor means - Employee in a very large scale commercial cannabis growing operation Cases Cited: R v Le [2010] NSWDC 229 Category: Sentence Parties: The Crown Joshua Jack Clarke Representation: Counsel: Mr G Turnbull SC - Offender Solicitors; Director of Public Prosecutions Tully and Chiper Lawyers - Offender File Number(s): 2012/348940

SENTENCE 1HIS HONOUR: The offence to which Joshua Jack Clarke has pleaded guilty carries with it a maximum penalty of 20 years imprisonment and a standard nonparole period of ten years. The parties today have reminded me of what I earlier said about sentencing for offences of this type. In R v Le [2010] NSWDC 229 I said that from information available to me, sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated. Nothing I have seen since handing that decision down in October 2010 has caused me to alter my view. 2Nevertheless, as I noted in Le, it is not for me to take an idiosyncratic view, different from those of my judicial brethren, and more importantly it is not for me to take a view inconsistent with that of the Court of Criminal Appeal when it has considered appeals regarding sentences for offences of this type. 3It is important to note, however, that I should not simply pay lip service to two significant matters which I must bear in mind in determining the appropriate sentence, the maximum penalty of 20 years, and the standard nonparole period of ten years. I have taken both of those into account in determining the appropriate sentence. My reasons for not imposing the standard nonparole period appear in these remarks on sentence. 4The offender worked as an employee in a very large scale commercial cannabis growing operation. For reasons I gave in an earlier judgment, it is impossible to be accurate about the precise number of plants that were growing when police appeared at the premises where the offender was working and seized cannabis material, however I can say that the number of growing cannabis plants was close to 2,000 and anything that was not a plant, because it did not have a root, would probably have shortly become a plant. It is to be borne in mind that the commercial quantity of cannabis plants for this offence is 200. This is enough to indicate the scale of the operation. 5During the course of an issue regarding disputed facts, a search video was played to me. It demonstrated in graphic terms just how large scale this operation was. It confirmed other evidence, particularly photographs tendered by the prosecution and the descriptions contained in the statement of facts and the statement of an officer who went to the premises, that this was not some mere backyard operation or even an operation in a suburban house, this was an operation which had as its object the cultivation and thus distribution of a large amount of cannabis. 6When comparing the sentence I impose on this offender with the sentences imposed on other offenders, the scale of this operation has to be borne in mind. That is not, of course, to suggest that the number of plants involved in this case is determinative of the sentence, but it is to say that the scale of the operation is important in assessing the offender's objective criminality, which in turn is a very important matter in selecting the appropriate sentence to impose upon him. 7Police went to rural premises on 8 November 2012. The property they went to is 100 acres with a Colorbond shed on it, as well as other sheds. Within the main shed police found a bedroom with closed-circuit television equipment, enabling someone inside the bedroom to see what was happening outside. Also within the shed they discovered a large number of cannabis plants, as I said earlier something in the order of 2,000. They were in various stages of growth, ranging from small plants of about 10 centimetres in height, up to plants of a metre in height. In another shed concealed by hay bales were a further nine cannabis plants. 8Of course it is not only the plants that were discovered. The growing equipment was also there, growing beds, electricity transformers, fans, humidifiers, lights, ducting, hoses, growing medium and fertilisers. Whoever set this up must have spent a lot of time and a lot of money, clearly intending to make a lot of money in return. 9The offender, as I have said, was at the premises and was arrested by police. Other things were found, indicating the likely nature of his role. The Crown does not suggest that he was involved in setting up the operation or financing it. The Crown accepts, and so does Mr Turnbull, that he was acting as an employee, receiving instructions as to what to do and carrying them out. 10The evidence suggests that he had been there for a significant period of time. He says four weeks to the author of a psychological report. Of course the precise time that he was involved in this operation and the precise amount of money that he expected to receive is difficult to determine. I will sentence him on the basis that he was paid to do what he did and he did it for about a month. 11The offender said that he got involved in this after he lost his job due to a downturn in work. He was a drug user and his drug supplier suggested this as a means of making some money. He accepts now that he should not have done that. 12Expressions of remorse are to be found in various documents tendered to me, although I do have to say that it would have been better for the offender had he been prepared to express his remorse in evidence before me and perhaps if he had indicated his remorse was based more on the wrongfulness of his conduct rather than the effect of his behaviour on himself and his loved ones. 13The offender has had a very difficult background. He is now 26 years of age, but, of course, the impact of his background remains with him. His parents had something of a disharmonious relationship which ended when his father died when he was about eight years of age. His mother appears not to have been able to adequately cope with that sad event. The offender's grandmother reports that the offender was brought up after his father died in somewhat squalid circumstances. In those circumstances things changed again when his mother died when he was about 14 years of age and he was informally adopted by a family friend where he lived for about five years. 14At one stage the offender was associating with an outlaw motorcycle group. He went along to a clubhouse for a drink, met some people who knew his father and it was not long before he was involved in their activities, including illegal activities. It was in these circumstances that the offender committed a most serious offence for which he was sent to gaol - an offence of discharging a firearm at a dwelling house with disregard for public safety. Upon his release from custody he was supervised by the Probation and Parole Service and apart from one driving offence did well on parole. 15There is another aspect of the offender's childhood, which no doubt affected him deeply. He was sexually assaulted by an employer when he was 13 years of age. Not surprisingly, therefore, given what has happened to him, losing his father, being raised in squalid circumstances, being sexually assaulted and then losing his mother, the psychologist reports that he displays symptoms of depression. Since going into custody he has been prescribed anti-depressants. He has had the insight to seek the advice and assistance of a psychologist while in custody, but unfortunately given that he has been bail refused on remand access to such services is limited. It is to be hoped that things will improve after I sentence him today. 16He has a great deal of support available to him. That is made clear both in writing and by the presence in court of many people who wish him well and will assist him upon his release from custody. 17There are prospects for his rehabilitation. I cannot say that they are good, but I can say that with the assistance of the Probation and Parole Service upon his release from custody and with the assistance of those who are willing to support him there are prospects that he will be able to once again begin leading a productive life, as he was after his release from custody on the earlier occasion until he lost his job and got involved in this most serious criminal activity. 18The offender pleaded guilty at the earliest opportunity. Ordinarily that would almost automatically entitle him to a reduction on the sentence I would otherwise have imposed by 25% to reflect the utilitarian value of his plea. There was, however, a disputed facts hearing which required the attendance of an expert from Goulburn and a small amount of court time. Ultimately that matter was resolved in a way which did not significantly assist the offender, but given the finding I have made the effect on the utilitarian value of his plea was marginal. I will discount the sentence I would have otherwise imposed by 25%. 19There is also a Form 1 attached to the offence for which the offender must be sentenced. I can say that there is such an overlap between the offence on the Form 1 and the offence for which I must specifically sentence him that there will be no extra punishment as a result of the Form 1 matter. 20It remains, of course, a fundamental rule in sentencing that a sentence must reflect the objective gravity of the offender's conduct and it remains also the case that in determining the objective gravity of an offence of cultivating cannabis the size of the operation is a significant factor. This is not only because of the potential harm that is caused by the offending with significant quantities of drugs being distributed if the operation is successful, but also because a person who is cultivating cannabis is fully aware of the scale of the operation, as it was it this case. The offender well knew what he was doing. He well knew the size of the operation and he thus well knew how seriously criminal his behaviour was. 21The sentence I am about to impose has a non-parole period of significantly less than ten years. Were it not for the matters with which I began these remarks on sentence I would have chosen a much longer non-parole period. 22There are special circumstances in this case. The offender's background is such that, its effects will last for sometime. The assistance of the Probation and Parole Service for an extended period will assist him to stay out of trouble, which, of course, will be of benefit to the community. I thus make a finding of special circumstances in his favour. 23Taking into account the matter on the Form 1 I impose a sentence as follows: There is to be a non-parole period of four years to date from 8 November 2012 and a head sentence of seven years. The non-parole period will expire on 7 November 2016, on which day the offender is eligible to be released to parole.