Supreme Court New South Wales Medium Neutral Citation: R v Zanker [2016] NSWSC 1653 Hearing dates: 17, 18 November 2016 Date of orders: 18 November 2016 Decision date: 18 November 2016 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: 1. For the offence of knowing concern in the cultivation of prohibited plants being not less than the large commercial quantity of such plants at Schofield on 27 July 2014 Shaun Steven Zanker is sentenced to imprisonment for a non-parole period of 2 years 6 months to commence on 2 March 2015 and to expire on 1 September 2017 and a balance of term of 1 year 3 months to commence 2 September 2017 and to expire 1 December 2018. 2. The offender is to be released on parole at the expiry of the non-parole period in respect of the offence of cultivation of prohibited plants subject to any remand in custody in respect of any other charge which may be pending against him and/or subject to the unexpired non-parole period of any other sentence which he may then be serving. Catchwords: CRIMINAL LAW – sentence – cultivation of prohibited plants being not less than the large commercial quantity – cannabis – guilty plea – special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 R v Cameron [2016] NSWSC 1342 Category: Sentence Parties: Regina Shaun Steven Zanker (Offender) Representation: Counsel: Mr Luigi Lungo (Crown) Mr Iain Todd (Offender) Solicitors: Mr Andrew Wright, Office of the Director of Public Prosecutions Ms Belinda James, Legal Aid Commission of New South Wales File Number(s): 2015/064064 Judgment 1. On 6 May 2016 Shaun Steven Zanker pleaded guilty to charge that on 27 July 2014 he knowingly took part in the cultivation of 664 cannabis plants being not less than the large commercial quantity. The charge was laid under s 23(2)(a) Drug Misuse and Trafficking Act 1985 (NSW). By s 33 subss (1) and (3)(b) of that Act the maximum penalty is 20 years or 5,000 penalty units ($550,000) or both. 2. Police attached to the State Crime Command Drug Squad had commenced investigations into possible cultivation of cannabis at a property at Schofields sometime in July 2014. On 27 July 2014 surveillance was conducted on a shed on that property and on vehicles driving to it and from it. During that day a search warrant for the property was executed. Police found within the shed a sophisticated two level multi-room cannabis plantation. Each room was walled with insulation and plywood or fibre board. The cultivation of cannabis plants was being enhanced by artificial lighting and an irrigation system. A large amount of chemical fertilizer was found within the shed. Cannabis plants at various stages of growth were located and there was a significant amount of harvested cannabis laid out on racks in the process of being dried. 3. The interior of the shed had been partitioned to some extent to create two rooms which were referred to by the people who used this property as trimming rooms, one at ground level and one at an upper level. In these rooms a process was carried out of cutting the heads or buds off the cannabis plants with scissors, trimming leaves and the like, preparing the product for sale and distribution. 4. On 28 July 2014 an agronomist working with police identified within this shed at Schofields 664 cannabis plants at various stages of growth, comprised of 598 plants in plastic pots and 66 in rock wool blocks on propagation trays. Police estimated that all of the plants identified when fully grown could yield a crop with a maximum street value of just a little under $3 million. The offender was recently tried on a charge of having been an accessory to the murder of a co-worker (Jacob Munro) at the crop site. In evidence given in that trial one of the others involved in the enterprise, a principal named Donald Cameron, said the value of the plants to his understanding would be more like $1,200 to $1,500 each which would yield at maximum about $720,000 to $900,000. Different views on value may depend upon how the plants would be disposed of. It appears from the evidence given during the trial to which I have referred there may, in addition to the value of the plants upon sale as a whole, have been some value in the crop for its capacity to yield recurrent harvest. The value is not particularly important to the objective degree of criminality. On any view the size of the enterprise was very substantial. 5. The part played by the offender in this hydroponic cultivation was revealed in his own evidence in chief during the aforementioned trial. That trial commenced on 7 November 2016 and ended with discharge of the jury – unable to agree upon a verdict – on 17 November 2016. The evidence given by the offender which is relevant to the cultivation charge to which he has pleaded guilty and for which he is now to be sentenced was given on 11 November 2016 and is recorded at pages 378 and onwards of the trial transcript. From that evidence it appears in 2013 the offender was 24 years old. He was then using and had for some time used cannabis extensively. He lived at Gorokan on the Central Coast in Housing Commission accommodation and he was supported by a Commonwealth Disability Benefit. In 2013 a neighbour at Gorokan introduced the offender to one Phillip Holder who offered him work growing cannabis hydroponically. Holder lived at Merrylands. 6. In mid to late 2013 the offender commenced to live at Holder's house and he remained there for two to four weeks sleeping on a couch. Holder was growing cannabis seedling plants in a spare bedroom on this property. He was a man in his sixties. At this time the offender also met Donald Cameron, then aged 61. Cameron had had considerable experience in cultivating cannabis and had served terms of periodic detention and full time custody for offences of cultivation on a substantial scale committed in February 1996, October 2002, January 2003 and July 2009. 7. Cameron came to Holder's house to tend to the cannabis seedlings whilst the offender was living there. The plants were being grown out to a maturity sufficient for them to be transported to a larger growing space. In the second half of 2013 Cameron arranged to lease land at Schofields with a large industrial shed, being the shed in respect of which the warrant was executed on 27 July 2014 as already referred to. 8. Adjacent to the land on which the shed was located was another block with a three bedroom residence. The plants from Holder's house were moved into the shed and Cameron and the offender, with the assistance of others, commenced to fit it out with fans to force ventilate the crop, lighting to promote growth, pots containing growing medium, tents for the cultivation of small plants and so on. The offender moved in to live in the shed when the plants were moved there. He worked from the outset on the establishment of this as a sophisticated growing operation. A tenant occupied the adjoining residence when the establishment of the growing operation in the shed commenced. As soon as the tenant vacated, the offender moved into that residence. He did not contribute capital to the establishment of the growing operation or to its recurrent expenditure requirements. He was a labourer in the venture, working under direction and acquiring skills as taught by Cameron. He worked six days per week for about eight hours per day from some time in the second half of 2013 until the raid by police on 27 July 2014, at which time the operation was shut down. 9. His work included watering, fertilizing, cloning new plants and trimming the heads of the plants as they came to maturity for harvest. He was not paid at all until the first cycle of growing and harvesting was completed. As soon as revenue from sales began to come in he was paid $500 per week. His accommodation in the residence, after the tenants vacated, was without charge. As he lived on site he attended to watering the crop for about two hours each Sunday in addition to the six eight-hour days per week. 10. The scale and profitability of the operation may be gathered from evidence which Cameron gave in the aforementioned trial. He said each of he and Holder derived between $5,000 and $15,000.00 per week after expenses from the sales of product from the crop site. When the cannabis had been harvested and prepared for sale it was apparently the practice for one or other of the principals of the operation, Cameron or Holder, to drive a quantity, so many pounds each time, to Port Macquarie where there was a buyer who would make regular purchases. Fluctuations in net revenue from the operation were attributable to variations in demand. 11. Throughout his period of working on the crop from its establishment in the second half of 2013 through to late July 2014 the offender smoked one to two ounces of cannabis per week. He gave evidence that he smoked a hundred "bongs" per day, commencing when he rose in the morning and continuing throughout the day. He was permitted by Holder and Cameron, the principals, to keep the residue of resin which accumulated on scissors used to trim the plants. This was potent with a high THC concentration and the offender collected it and smoked it. 12. When the shed was being fitted out suitably for the growing operation the offender contributed to the building work. Another older employee, Ian David Wilkinson, with construction skills was recruited in about April or May 2014. He supervised and helped to carry out the construction of an upper floor in the building which thus doubled the growing area and provided the second trimming room. 13. The objective seriousness of the offender's involvement is of course increased by the circumstance of it having been part of a planned activity in concert with others. Illegal cannabis production on such a significant scale would be difficult other than by the co-operative effort of a small work force. The offender was a very important part of that work force, living on site and working the hours that I have described in a variety of aspects of the business, in which he acquired what appear to have been increasing skills. 14. I sentenced Cameron, Wilkinson, and another co-worker, Stanley Forward, for their parts in this operation on 22 September 2016: R v Cameron [2016] NSWSC 1342. I consider the objective seriousness of the offender's conduct greater than that of either Forward or Wilkinson. All of these three were labourers in the enterprise, not principals. However the offender was on site for longer than either of the other two. He worked longer hours per week than Forward. He derived more income and fringe benefits from his involvement than Forward. All three of them were at an entirely different and lower level from Cameron who was a full partner of Holder and acted as an executive director of the undertaking. 15. The offender's subjective circumstances attract significant weight in mitigation of penalty. He was born with spina bifida, a condition in which the spinal cord is incompletely enclosed within the vertebral column. This was surgically closed when the offender was a baby but it is likely to have contributed to subsequent nervous system disorders which continue to afflict him. It has left him with a weakened back which is of course fundamental to his overall physical strength. He has not developed to full stature and, without tracing through the medical causation precisely, I infer that that is, at least in part, due to the spina bifida. The disorder of the central nervous system to which I have referred causes the offender to thrash his arms and his upper body involuntarily. He has to be constantly medicated to try to control these spasmic muscular movements. 16. Reverting to his early years, his mother was only 16 years old when he was born. She was already by that age abusing alcohol and drugs. She had abused these substances during the pregnancy. She had had a very difficult early life herself, having lost her mother when she was four years old. The offender lived with his mother until he was eight years old during which period he moved around the State with her from place to place. His early childhood was evidently very unsettled. His father is reported to have suffered drug induced psychosis and schizophrenia but the father had no contact with the offender. Rather, his mother took up with a man who thereby became the offender's stepfather. The stepfather physically assaulted the offender with angry severity from time to time. He became a ward of the State from the age of eight. From then through to the age of 14 he moved from town to town around the State as he was placed with various foster carers. Between the ages of 14 and 17 he was taken in by his mother's older sister and her partner. From the age of 17 he moved into accommodation in refuges and subsequently into a Housing Commission tenancy. It hardly needs to be said on that history that his early childhood was extremely unsettled, chaotic, disruptive and adverse. 17. It would be fair to conclude that these circumstances denied the offender any chance of learning or developing socially or mentally at school. Unsurprisingly this resulted in behavioural problems. He gave a history to a psychiatrist, who interviewed him for the purpose of preparing a report which has been tendered in these sentence proceedings, that he had on a number of occasions harmed himself and attempted suicide during his late teens. He was admitted to a Mental Health Unit on one occasion and to hospital on another as result of ingestion of illicit and dangerous drugs. He has misused various drugs since his mid-teens but since about 2012 at age 23 this has been limited to cannabis, albeit in the extraordinarily high dosage to which I have already referred. 18. His criminal record commenced at the age of 15 in the Children's Court with an assault charge which must have been minor in view of the penalty imposed, a bond. He had a subsequent course of minor offences in his late teens: damaging property and affray. He has once prior to the present charge been convicted of possessing a prohibited drug and cultivating a prohibited plant. That offence occurred on 15 October 2011. It must have been of a minor order because he received only a fine. On that criminal history he is not disentitled from considerations of leniency. He is still a young man. He is in prison for the first time. He is not without hope of rehabilitation and his criminal record of a minor nature does not tell against that conclusion. 19. I take into account as relevant to the severity of the sentence I should impose his very disadvantageous background from birth. I have had regard to the considerations spelt out by the High Court in Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18. There is no doubt that his prison time is and will be difficult because of his spinal disability and the symptoms of the central nervous system disorder. His involuntary movements will make life very difficult for him sharing a cell, especially as those movements continue throughout his sleep and disturb both himself and likely anyone else in a small room with him. The symptoms which I have described are exacerbated by nervousness and stress, as was evident when he gave evidence in his recent trial. This will give rise to some measure of a vicious cycle in the prison setting, where anxiety would be the order of the day and his responses to it may make life more difficult for him with fellow inmates and may lead to further stress. For the purposes of s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) I find that the offender's relative youth, prospects of rehabilitation, severely disadvantaged early circumstances, offer of support (following his release) from his aunt and medical disabilities combine to constitute special circumstances which warrant some adjustment to the proportion of his sentence which must be served without parole. 20. He pleaded guilty to the present charge at what may be taken to be the earliest opportunity. His sentence will be reduced by 25% of what it otherwise would have been, on that account. Nothing has been said specifically about his remorse for the offence but I am prepared to accept that his plea of guilty exhibits remorse. Most promisingly it exhibits his recognition and acceptance of the commission of the crime. This is a step towards him getting off the track he has been on and doing something about it. His prospects of rehabilitation have been urged upon me. He has a long, entrenched involvement in the cannabis world. He has on his account been a dealer from the age of 16 when he first knew his co-offender, Forward, as a customer for cannabis. He has had the disadvantage to this point of only having had very limited gainful employment. At the age of 14 he worked in food retail and at the age of 17 in fibre glassing, doing some technical work with his hands. His future for rehabilitation will be heavily dependent upon him choosing his company more carefully, ceasing the indulgence in cannabis and acquiring skills for work and for life. 21. Taking all of these factors into account, after allowing a reduction of 25% for the plea of guilty, adjusting the ratio of the non-parole period under s 44 and with a view to fixing a penalty which reflects a fair relativity to the sentences already imposed on his co-workers, Wilkinson and Forward, the offender is sentenced as follows: 1. For the offence of knowing concern in the cultivation of prohibited plants being not less than the large commercial quantity of such plants at Schofield on 27 July 2014 Shaun Steven Zanker is sentenced to imprisonment for a non-parole period of 2 years 6 months to commence on 2 March 2015 and to expire on 1 September 2017 and a balance of term of 1 year 3 months to commence 2 September 2017 and to expire 1 December 2018. 2. The offender is to be released on parole at the expiry of the non-parole period in respect of the offence of cultivation of prohibited plants subject to any remand in custody in respect of any other charge which may be pending against him and/or subject to the unexpired non-parole period of any other sentence which he may then be serving. ********** 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: 23 November 2016