District Court New South Wales Medium Neutral Citation: R v Yates [2017] NSWDC 172 Hearing dates: 12 May 2017 Date of orders: 12 May 2017 Decision date: 12 May 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Taking into account a matter on a Form 1, I impose an aggregate sentence of imprisonment consisting of a non-parole years with a head sentence of 4 years. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Cultivate large commercial quantity of a prohibited plant - Cultivate commercial quantity of a prohibited plant Category: Sentence Parties: The Crown Randall Yates Representation: Counsel: Mr G Jauncey – The Offender Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2016/159630 SENTENCE 1. HIS HONOUR: When Mr Randall Yates was giving evidence before me today he said, quite accurately, that alcohol and drugs had ruined his life. He is far from the first person to say that to me in court. Alcohol and drugs ruin many lives, and Mr Yates is deserving of sympathy because of the effects of alcohol and drugs upon him. But conversely, the problems and the harm that drugs cause to members of the community, both directly in the case of drug users, and indirectly in the case of the community generally, is something that makes offences such as those committed by Mr Yates so serious. 2. He is to be sentenced for having cultivated two separate crops of cannabis. These were both cultivated in houses which he owned, one of which he lived in; the other of which was only used for the purpose of cannabis cultivation. He pleaded guilty to these two offences at the earliest opportunity, and when I sentence him for the first of those he ask that I take into account three other matters on a Form 1. 3. The first offence is an offence of cultivating a large commercial quantity of prohibited plants. It has a maximum penalty of 20 years' imprisonment, and importantly a standard non-parole period of ten years. The second offence is an offence of cultivating a commercial quantity of prohibited plants. It has a maximum penalty of 15 years with no standard non-parole period. I have taken into account both the maximum penalties and the standard non-parole period where appropriate in formulating the sentences to impose upon the offender. I have also taken into account the utilitarian benefit that Mr Yates' pleas of guilty have for the criminal justice system, the sentences have been discounted by 25% to reflect that circumstance. 4. Matters came to the attention of police when they went to the home owned and occupied by the offender in North Curl Curl. They were armed with a search warrant. They explained that they intended to search both the house that Mr Yates was living in, and a second house, to which I will make further reference later. When he was asked if he had plants, Mr Yates made a clear admission. He said, "You hit the jackpot here, seriously." The search was then videotaped. 5. A large number of cannabis plants were found, there were 362; 360 of which were being cultivated by enhanced indoor means. Many rooms were given over to the cultivation. There were 16 plants in the laundry, 91 in the front pool room, 21 in the upstairs bathtub, 97 in an upstairs study, 48 in a front bedroom with an ensuite, and 87 in the garage. There was another one on a windowsill, and one in a rear courtyard. As well, police found a lot of equipment used in the cultivation of cannabis and a substantial quantity of cannabis leaf itself, more than 13 kilograms. 6. Whilst police were searching those premises, the accused went with other police to the second address, this one in Cromer. This was also searched, and the search was video recorded. Again, there was a substantial operation in place. A standard system seems to have been used with artificial lights, heat shields, irrigation systems with pumps, and ducting. When those premises were searched further cannabis leaf was found, and two rooms were used for the purpose of the cultivation; 71 plants in one bedroom and 16 in the other. There was also an instruction video titled Grow Marijuana. 7. In total at the North Curl Curl property there were, as I said, 362 plants; 360 of which were cultivated by enhanced indoor means. At the Cromer property there were 89 plants, all of which were being grown by enhanced indoor means. To put those figures into context, the large commercial quantity for cultivating plants by those means is 200 plants, and the commercial quantity is 50. The cannabis leaf, as I have already mentioned found in North Curl Curl, weighed 13 kilos; the cannabis leaf found at the Cromer property was just under 1.5 kilos. Again, to put those matters into context the trafficable quantity for cannabis is 300 grams. 8. It is clear that Mr Yates was an enthusiastic and hard-working grower of cannabis. He, at times, has said that he was motivated to grow the cannabis because of the financial rewards it brought him. In evidence today he said that his prime purpose was a desire to be seen as an important man. He was seen as important when he sold and distributed cannabis by giving it away. Whatever Mr Yates's motivation was, it was far from need. Many drug suppliers do so to fund an addiction, but Mr Yates's drug cultivation activities went far beyond that. 9. As might be understood, he was certainly not in financial need; he owned the two houses where the drugs were being cultivated. Some idea of the value of those houses can be obtained from the circumstance that the New South Wales Crime Commission brought proceedings against him, and obtained an order requiring him to surrender the properties to the Crime Commission, they being valued in the order of $3 million. 10. Mr Yates has a relatively minor criminal history. A psychological report speaking of his upbringing was tendered today. He has one brother, and grew up with his parents and his brother on the North Shore of Sydney. A large part of the psychological report relates to Mr Yates's relationship with his father. He describes how he was criticised by his father and considers that a large part of his adult life he has been trying to appease his father and meet his expectations. Because of his tensions with his father he began to live independently, leaving home at the age of 18. He had various jobs until he began to trade firstly in real estate and then in shares; he has apparently been quite successful in those pursuits. 11. As he grew up he found it difficult to relate to others; he was anxious on social occasions. It is in that context that he began to drink; and then to use drugs, primarily the drug, cannabis. He has had a long-standing addiction to cannabis. At first he grew that drug for his own purposes, but of recent times leading up to his arrest he was expanding his drug cultivation operations until it reached the stage that it was when he was arrested. 12. Since his arrest he has made a number of important changes in his life. He and his father, who also gave evidence today, both speak of a good relationship now. His father is in his late 80s and has recently suffered a stroke, and so Mr Yates spends some of his week in Sydney, North Curl Curl; and the rest of it down at a farm owned by his parents in Bowral, where he assists with farming activities such as fencing, separating cattle, and the like. 13. He attends AA meetings with a fervour that bodes well for his future. Indeed, Mr Yates seems to be dealing with his rehabilitation with the same industriousness he displayed when he was engaging in drug cultivation. 14. Mr Jauncey at one stage made a submission that this was not an enterprise which involved large scale distribution; the facts tend to the contrary. When one compares how much cannabis leaf was found and the number of plants against what Mr Yates says was his personal use, this was an enterprise which had, as its necessary consequence, a substantial distribution of drugs, whether they be sold or given away. 15. Mr Jauncey concedes that a custodial sentence is required. He asks that I make a finding of special circumstances, and I will certainly do that. There is an extended need for supervision on parole to assist Mr Yates in his industrious endeavours to put his drug using days behind him. There needs to be a measure of accumulation too. Although this was part of the one enterprise there were two separate crops, one being put in place after the other; and even if there was one crop, the fact that there were almost 100 extra plants at the second premises would have required an increase in sentence anyway. 16. I will impose an aggregate sentence. Were I not to have done so I would have imposed the following sentences, for the large commercial quantity matter, taking into account the Form 1, a non-parole period of 18 months with a head sentence of three years; the commercial quantity, a sentence of two years. Instead, I impose an aggregate sentence of imprisonment consisting of a non-parole period two years with a head sentence of four years to date from 10 May 2017, which means that Mr Yates is to be released to parole on 9 May 2019. 17. I order that the drugs are to be destroyed. 18. I also make an order under s 35 for the forfeiture of equipment used in the commission of the offence. ********** 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 July 2017