District Court New South Wales Medium Neutral Citation: R v Heffernan [2014] NSWDC 302 Decision date: 07 November 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: For the offences of cultivating a prohibited plant and supplying a prohibited drug, an aggregate sentence of imprisonment of 2 years and 8 months with a non-parole period of 1 year and 4 months. Catchwords: CRIMINAL LAW - particular offences - drug offences - cultivating a prohibited plant - supplying a prohibited drug - cultivated cannabis to assist family financially - greater than commercial quantity - sentence -relevant factors - no prior criminality - man of exemplary character - financial hardship of family - clear expression of remorse and contrition - gravity of offences - objectively serious offences - sophisticated commercial enterprise – whether "trafficking" - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - 50% - very good prospects of rehabilitation - obvious contrition - age - first time in custody EVIDENCE - offender's research on cannabis use tendered Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 5, 21A(2), 50 Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), s25(2), 39P Cases Cited: Livas v R [2006] NSWCCA 54 Category: Sentence Parties: Regina (Crown) Steven Wayne Heffernan (offender) Representation: Counsel: P Harper (offender) Solicitors: Office of the Director of Public Prosecutions (Crown) File Number(s): 2014/00109850 Judgment 1. Most people face financial difficulty of some sort or another in their lives. People deal with their financial setbacks, including losses. But the man I am sentencing today was not prepared to see his parents' property fail to sell, so he embarked on a stunningly bold and illicit project to raise quick cash within a year. The project was also dangerous. Not only was he at risk of being caught but it was very dangerous for the community, particularly young people. 2. The man's name is Steven Wayne Heffernan. I am sentencing him for two serious crimes, both of them under the Drug Misuse and Trafficking Act 1985. The first crime is cultivating a prohibited plant, namely cannabis. That is an offence against section 23(1)(a) of the Act and Parliament has fixed a maximum of 10 years imprisonment to that crime. The second crime that I am sentencing him for is supplying a prohibited drug. Again the prohibited drug was cannabis but the amount was a commercial quantity. That is an offence against section 25(2) of the same Act. Parliament regards that as so serious that it has fixed a maximum of15 years imprisonment to that offence. 3. When I am sentencing Mr Heffernan for the drug supply offence, he has asked me to take into account an offence of having goods in custody, namely $1,400. I will take that into account when I am sentencing him and I sign a Form under section 32 of the Crimes (Sentencing Procedure) Act 1999 to that effect. 4. It is important for a judge to set out, as part of the judge's remarks on sentence, what happened in the particular case to constitute the crime. This is so that there is a public record of what happened but also so that the judge can make an assessment of how serious an example of the crime the particular one is that the judge is sentencing for. Some behaviour amounting to an offence may be much more serious than other behaviour amounting to the same offence. 5. In this case Steven Heffernan's parents, Michael and Anne Heffernan, own a rural property named "Losannie". It is at Mirannie, about an hour's drive from Singleton. On 10 April 2014 police turned up at Losannie for an enquiry quite unrelated to what they found. When they arrived they found the roller door to a garage up and inside they found, as the agreed facts say, 'branches from cannabis plants'. They were hanging from a line drawn across the garage. Mr Heffernan met the police and immediately admitted that he was responsible for what the police found. 6. Inside the farmhouse police found 'a large quantity of cannabis heads in the process of being weighed in the kitchen area of the homestead. There were also vacuum sealed bags containing cannabis leaf and a large plastic container containing cannabis heads inside the home.' Mr Heffernan remained co-operative and admitted that he was responsible for what the police found. 7. Police searched the property. Again Mr Heffernan was co-operative and he showed them where he had been growing plants on the property. Police seized the following: 32.8 kilograms of cannabis leaf and head, 12 cannabis plants and $1,400 in cash. Mr Heffernan was charged with the two offences that I am sentencing him for today. 8. The 32 kilograms of cannabis leaf is, as I said, more than a commercial quantity of that drug. However, it is not much more because the commercial quantity is a minimum of 25 kilograms. That is a relevant factor for me to take into account. 9. Exhibit A, tendered by Mr H Fitzhardinge who appears for the Director of Public Prosecutions, includes photographs of the plants and the cannabis leaf, some of it, indeed, divided into large plastic bags. There is no suggestion that Mr Heffernan was involved with anybody else in the offences that he committed. 10. It is also important for a judge, in sentencing an offender, to take into account the personal circumstances of the offender. In this case Mr Heffernan is 51. He comes before the court with practically a clear criminal record. There is only one PCA conviction from almost 30 years ago. That has no weight whatsoever. I treat him as a man with no criminal convictions. 11. In addition, I regard him as a man of exemplary character. I do not say that lightly. The references which are included in exhibit 1, which was tendered by Mr P Harper of counsel who appears for Mr Heffernan, bear out that opinion. They are references from men and women who have known Mr Heffernan for a very long time and who, knowing about the offences, have made assertions about his good character and about the efforts, extraordinary in some cases, that he goes to in order to help others whom he has come across in his life. 12. Also included amongst the material is a letter from his parents which points out that they had been trying to sell their family property. They have been trying to sell it since 2007. They had it listed for nearly $800,000 but it is now listed for nearly $600,000. The Valuer General has determined the land's value at $250,000. They have not received any offers despite inspections. They said that their son, Mr Heffernan, "has been lending us money to pay outstanding accounts". Both of them pointed out that their health is not good. Mr Heffernan senior has had a heart attack and heart surgery. He also has osteoarthritis and has had knee surgery and, understandably, has depression related to his son's predicament. Mrs Heffernan has suffered breast cancer and also suffers from osteoarthritis. They no longer can live at Losannie because of its remote location. 13. There is also a letter from the offender Mr Heffernan's wife. They share two children. They have been living together on and off for some time but were married last year. Mr Steven Heffernan's wife, Linda, also has health issues, including rheumatic heart disease, and explains obviously how Mr Heffernan's offending behaviour has impacted on their children, their two daughters, one of whom is 14 and the other nine. 14. Included in exhibit 1 was a letter from Mr Heffernan himself. In addition, Mr Harper called his client to give evidence in the proceedings before me. Mr Heffernan explains in his letter how he has been employed as a plant operator at Lemington open cut mine for the last 33 years. He is still in that job. He has suffered a number of injuries at work, which are attested to by an affidavit of his solicitor, John McDonald, attaching numerous medical reports and documents related to his injuries at work. The result of those is that he is on restricted duties and earns less than he might otherwise do. A couple of years ago he was diagnosed with diabetes and has required insulin treatment ever since. The house he lives in with his wife and daughters is mortgaged for about $70,000 and he is the sole breadwinner. That is because his wife cannot work because of her injuries. His eldest daughter is at high school - she has some learning difficulties - and his youngest daughter is in primary school. He referred to his parents' predicament and how everything "came to a head in March this year when my father had a heart attack and underwent bypass surgery". 15. Mr Heffernan himself has financially supported his parents over the last half dozen years, to the extent of some $60,000. The farm needs a good deal of maintenance. One item was a road repair. There was no cash within the family to do that in order to improve the property. 16. Mr Heffernan explained that he "saw an article online that said 'plant Father's Day and harvest Mother's Day'." He added that he "saw it as a solution to the problem". The article was about growing cannabis. He then proceeded to buy "seeds on line from England using my Visa card". They arrived and he "planted out 20 seedlings, expecting a failure rate of possibly 50%". 17. He acknowledged that his "solution" hurt everyone and he expressed his remorse and contrition. He expressed that very clearly in the witness box as well. 18. In the witness box he explained that his current salary is $140,000 per annum on his restricted duties. 19. Exhibit 1, which is a carefully prepared document, shows the amounts that Mr Heffernan has paid to support members of his family over the years. It comes to a total of nearly $81,000. It is consistent with the kind of person described by those who have provided character references. 20. As he said in the witness box, he conceived the idea "to get the farm up to scratch to he could sell it". The problem was, the farm could not be sold. 21. He was asked by Mr Harper what he was going to do with the harvest. He said that he was trying to organise a purchaser. He knew someone who smoked cannabis and he hoped to source a bulk buyer. He was hoping to sell his supply of cannabis as one lot and raise at least $40,000. He did not think at the time of the impact that it might have on the community, having, if everything went according to the plan, over 30 kilograms - well over 30 kilograms, including any to be harvested, which is relevant to observe on sentence - distributed in the community. 22. Unlike many offenders, exhibit 1 includes the product of Mr Heffernan's research on cannabis use which he has made since being arrested and charged. In the witness box, when I asked him, he acknowledged the links between cannabis and mental health issues, the time and energy devoted by police and the risk to young people. Those observations are consistent with the research. 23. I might add that exhibit 1 also demonstrates that Mr Heffernan is a supporter of the Cancer Council, with regular and generous donations. 24. Mr Heffernan's own medical condition is borne out by a letter from his general practitioner, Dr Jon Pauley, contained in exhibit 1. It confirms his insulin-dependent diabetes mellitus, and WorkCover related conditions. Mr Harper asked Mr Heffernan about his future employment. He asked for leave at half pay but that was refused. He has accumulated leave which will take him through to the middle of March next year. Mr Harper asked him what would happen then. Mr Heffernan replied that he had enquired at work and if he did not turn up at work after his leave expired then his employment would be terminated. At his age, and with his medical conditions contributing to his restricted employability, his prospects of future employment would not be good at all. In addition, Mr Heffernan expressed the opinion that being terminated would deprive him of the opportunity for any redundancy payment in the future, which could amount to something like a quarter of a million dollars. 25. Cross-examined by Mr Fitzhardinge, he acknowledged that this was his first and only crop, and the risk that was posed to the community, especially by a man with his own children. 26. In assessing the seriousness of the offences, I bear in mind that Mr Heffernan was acting alone in this enterprise. It is also relevant to find that the supply offence was towards the bottom of the commercial quantity range. So far as the cultivation was concerned, there were only 12 plants left. I have to be careful there. I make that observation - and indeed, finding - because the rest of the cannabis had been harvested. I am sentencing him for, so far as I am concerned, cultivating 12 plants. 27. Mr Harper's argument was that his client's enterprise should not be counted as trafficking because it is one transaction. I reject that argument. To my mind it flies in the face of common sense for me to conclude that a person who grows cannabis and is at the stage of having harvested over 30 kilograms in order to sell and make money is not trafficking in drugs. Grove J, in Livas v R [2006] NSWCCA 54 at [14], expressed the opinion that "a person may be involved in 'trafficking' without necessarily supplying on more than one occasion." 28. This was, in my opinion, a relatively sophisticated and certainly commercial enterprise that Mr Heffernan was engaged in. He wanted to raise sufficient funds to add capital improvements to a property. This is the point made in submissions by Mr Fitzhardinge. The enterprise was for one purpose, namely to make money so that he could improve the value of a property to make it more saleable. I accept Mr Fitzhardinge's submission. 29. Returning to the question of trafficking, Mr Heffernan was not a trafficker in the sense of being a street dealer selling regularly but he was the grower and cultivator and source of the drugs, and hoping to reap the large profit. He was not selling, or proposing to sell, in order to eke out an existence as a drug dependent addict, but in order to improve the value of a capital asset. 30. There is, in my opinion, no duplicity in the two charges. There should be some concurrency in the proposed sentences but I have to bear in mind that, in addition to the 30-odd kilograms of cannabis leaf that was to be supplied, there were still 12 plants unharvested which are not included in that 30-odd kilograms. HARPER: Might I assist your Honour on that point? HIS HONOUR: Yes. HARPER: Your Honour, those 12 plants-- HIS HONOUR: Are the subject of the photograph. HARPER: I can show you a photograph, your Honour. They had been harvested. HIS HONOUR: They are on the brief, aren't they? FITZHARDINGE: They are, they are part of the exhibits, exhibit A. HARPER: It is part of the 30 kilo, your Honour. So what was found were the stems. HIS HONOUR: They are part of it? HARPER: Stems left in the ground. They had been harvested. So they are the ones the police found in the ground, that they then pulled out and took back to the farmhouse and photographed. That's the state they were in when they were discovered by police. HIS HONOUR: So that the 30 kilograms odd included-- HARPER: Those 12, the product of those 12 plants. HIS HONOUR: Which had been harvested. All right, I will give that back, I have looked at that. HARPER: Thank you. HIS HONOUR: Just bear with me for a moment, in that case. HARPER: So your Honour was talking about no duplicity, and there needed to be some concurrency because in addition to the 32 there were 12 plants. HIS HONOUR: I return to my remarks on sentence. 1. Mr Harper appropriately interrupted me to draw my attention to a photograph as part of exhibit A which is of about a dozen plants which were uprooted. He pointed out, which I had not appreciated, that they had obviously been harvested and effectively stripped bare. He makes that observation in support of his submission that there is a degree of duplicity in the charges. I myself would not regard the charges as duplicitous but I think there is some force in his submission as it relates to the seriousness of that offence and to the question of totality. I have in fact revised the sentence which I proposed to impose in respect of that offence and I will refer to that shortly. 2. I accept the submission of Mr Harper concerning the credibility of his client. Mr Harper submitted that his client's actions demonstrated a misdirected but loyal attitude to his parents. I do not regard "misdirected" as an appropriate description of the behaviour of his client. To my mind it was a flagrant offence against the community and its laws. 3. Mr Harper argued that his client should receive a discount of 25% on the sentence I would otherwise impose because of his early plea of guilty. Mr Fitzhardinge agreed with that submission. 4. Mr Harper acknowledged that I have no other choice but to impose a prison sentence, which is a relevant consideration under section 5 of the Crimes (Sentencing Procedure) Act. He added, however, that there would be a question as to how the sentence might be served, and that options might include home detention or an intensive corrections order. 5. Mr Harper acknowledged that an aggravating factor of the offence was that it was committed for financial gain. That is provided for by the Crimes (Sentencing Procedure) Act as an aggravating factor under s 21A(2)(o). I also am of the view that the offence was part of a planned or organised criminal activity in accordance with clause (n). I agree with Mr Harper that it lacked a degree of sophistication that some plantations might have but, on the other hand, it was conceived as a way of earning money, and Mr Heffernan went to the trouble of contacting a supplier in England, paying for the seeds and planting and harvesting them. It was far from a spontaneous or thoughtless crime. I accept also that his client was acting alone. 6. I now turn to the question of the appropriate sentences which I should impose for these crimes committed by Mr Heffernan. Taking into account my findings on how serious the crimes were and his personal features, I formerly regarded the appropriate sentence for the cultivate offence as one of two years imprisonment. In light of Mr Harper's submission, I have revised that and I now regard an appropriate penalty for that offence as being one year imprisonment. 7. The other offence is more serious. It carries a greater maximum. I have to take into account the matter on the Form 1, although it is relatively minor. I regard an appropriate sentence for the supply charge as one of three and one-half years imprisonment. 8. Because Mr Heffernan has pleaded guilty to each offence, I am going to reduce my proposed sentences by 25% each. The one year proposed sentence will become a sentence of nine months imprisonment. The three and a half years sentence of imprisonment, I am going to reduce to two and a half years imprisonment, even though that is a slightly greater discount than 25%. 9. Because of the point made by Mr Harper, the accumulation which I formerly had in mind of six months, I am going to reduce to two months. So I would have accumulated the two sentences so that the overall total would be two years and eight months. 10. What I propose to do is to fix an aggregate sentence of imprisonment. That means instead of fixing two sentences, I will fix one sentence of two years and eight months. Normally a sentence of two years and eight months would carry a non-parole period of some 20 months. However, I accept Mr Harper's submissions that there are special circumstances for reducing that. I am of the opinion, as he submitted, that his client's prospects of rehabilitation are very good, and that he is unlikely to reoffend. His client was obviously contrite as well. But in fixing this sentence, I have to bear in mind that I am sentencing a man who, despite being a father, put - or was proposing to put - into the community some $40,000 worth of cannabis. 11. Returning to the question of the non-parole period, I propose to fix a non-parole period of 50%, or one year and four months. HIS HONOUR: I am going to sentence you, Mr Heffernan. 1. I sentence you to imprisonment for two years and eight months. That sentence commences today - no, I am going to backdate the sentence to Monday, because of your time in custody earlier when you were arrested, about four days - so that sentence commenced on 3 November 2014, and will expire on 2 July 2017. I fix a non-parole period of one year and four months. That also commenced last Monday, 3 November 2014, and will expire on 2 March 2016. The balance of the term is one year and four months, commencing 3 March 2016 and expiring on 2 July 2017. HIS HONOUR: Have a seat, Mr Heffernan. First, gentlemen, are the figures correct, and secondly, I have to make a parole order, so I am wondering about conditions of parole. FITZHARDINGE: Just bear with me for a moment, your Honour. HIS HONOUR: Yes. FITZHARDINGE: The Crown is content with the figures, your Honour. HIS HONOUR: The mathematics are correct? FITZHARDINGE: The mathematics works. As far as supervision on parole, it is difficult to envisage what supervision would be of assistance to the-- HIS HONOUR: I am inclined to agree. I am not sure that he needs much, if anything; perhaps just a good behaviour. FITZHARDINGE: Whilst my friend is doing figures and things, I will ask your Honour for an order under section 39P of the Drug Misuse and Trafficking Act, just in relation to the destruction of the drugs. And I understand we'd be asking your Honour to make some consent orders in relation to the Form 1 matter, the money. HIS HONOUR: What, forfeiture? FITZHARDINGE: Forfeiture to the Crown. HARPER: That's by consent. HIS HONOUR: Okay. And the numbers? HARPER: Correct, your Honour. Sorry for the delay. HIS HONOUR: No, that's all right; it's important. Now, conditions. Mr Harper, I am thinking-- HARPER: I have heard what your Honour has had to say. I don't oppose that course, your Honour. HIS HONOUR: You agree? All right. 1. Under s50 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing the release of Mr Heffernan on parole on 2 March 2016. The conditions of the parole are these: 1. That he be of good behaviour. 2. That he notify the registrar of this Court of his address and any change of address. 3. That he attend court if he receives a notice to do so. 1. Under s39P of the Drug Misuse and Trafficking Act, I direct that the drugs the subject of this case be destroyed. HIS HONOUR: And you have got a notice of motion? FITZHARDINGE: Short minutes of order for your Honour to sign in relation to the forfeiture of the— 1. I grant leave for the filing in court of the short minutes of order. And I should add that I convict Mr Heffernan of the two offences. HIS HONOUR: What is the leave? The property forwarded by order - blank - be disposed of forthwith. What does that mean? So I am forfeiting the $1,400 to the State, and the second is a leave. FITZHARDINGE: I'd invite your Honour to delete the "gives leave that", and the second order. It simply needs to be forfeited to the State. HIS HONOUR: Just delete (2) altogether? FITZHARDINGE: Thank you, your Honour. 1. I make orders in the short minutes of forfeiture order, signed and dated by me today, and that is an order that the $1,400 be forfeited to the State. HIS HONOUR: I will give that to my associate to place on the court file. Now, is there anything else before I explain the sentence to Mr Heffernan? No? HARPER: No, thank you, your Honour. HIS HONOUR: Mr Heffernan, I have given you a gaol sentence, it is two years and eight months. It commenced last Monday and it will finally expire on 2 July 2017. Your non-parole period, which would normally be three-quarters of that, about 20 months, I have reduced it to one year and four months, 16 months. That commenced last Monday as well, and it will expire on 2 March 2016. I have ordered that you be released on 2 March 2016, and you will be on parole then. You will be on parole for another year and four months, until the sentence itself expires on 2 July 2017. When you are on parole, both Mr Harper and Mr Fitzhardinge do not think you need supervision, and nor do I, but you need to let the registrar of the Court know where you are living, and any change of that address, and if you get a notice to come to court, you have got to turn up. Does that all make sense? OFFENDER: It does, yep. COURT OFFICER: Corrective Services are on the way. HIS HONOUR: They are on the way. Okay, you will have to wait, I am afraid. Do your relatives want to come up here to - they don't have to; no, fine. All right, you have got to stay there, I am afraid. Thanks, Mr Harper. Thanks, Mr Fitzhardinge. ********** 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: 06 March 2015