R v Ali

[2022] NSWDC 699

District Court

New South Wales

Medium Neutral Citation:

R v ALI [2022] NSWDC 699

Hearing dates:

12 December 2022

Decision date:

13 December 2022

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found – 1st time in custody, need for supervised assistance on parole to reintegrate into the community in a lawful manner.

Sentenced to a term of imprisonment for 5 years and 4 months with a non-parole period of 3 years to commence on 18 February 2022 and to expire on 17 February 2025, and a balance of term of 2 years and 4 months to commence on 18 February 2025 and to expire on 17 June 2027.

Eligible for release to parole on 17 February 2025.

Catchwords:

CRIMINAL - sentence - knowingly take part in the cultivation of prohibited plants, not less than the large commercial quantity (350 cannabis plants) – limited evidence as to role of offender - major commercial enterprise having as its objective the deliberate cultivation of prohibited drugs on a very large scale for financial gain - moral culpability – objective seriousness – general and specific deterrence - subjective matters

Legislation Cited:

Crimes (Sentencing Procedure) Act1999

Drugs Misuse and Trafficking Act 1985

Cases Cited:

Imbornone v R [2017] NSWCCA 144

Nguyen v R [2011] 208 A Crim R 432

R v Chu; R v Tang [2021] NSWDC 768

R v Giammaria [2006] NSWCCA 63

R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607

R v Shi [2004] NSWCCA 135

R v Tran [2017] NSWDC 397

Tran v R [2018] NSWCCA 220

Category:

Sentence

Parties:

Rex
Sam ALI

Representation:

Counsel:
ODPP: Ms K Stanley
Defence: Mr M Neil KC

Solicitors:
ODPP: Ms E Stanley
Defence: Abbas Jacobs Lawyers
Mr M Abbas, Mr K Agar, Mr S Ahmed

File Number(s):

2021/00048189

JUDGMENT

1. HIS HONOUR: In this matter, Sam Ali appears for sentence in respect of a single offence of knowingly take part in the cultivation of prohibited plants, namely, 350 cannabis plants, which is not less than the large commercial quantity applicable to that prohibited plant, contrary to s 23(2)(a) Drugs Misuse and Trafficking Act 1985. The maximum penalty provided for such an offence is 20 years’ imprisonment and/or a fine of 5,000 penalty units, and there is a relevant standard non-parole period provided of ten years’ imprisonment.

2. The offender entered a plea of guilty on 19 October 2022 at the Sydney District Court. The offence occurred on 28 March 2020, and he was arrested on 19 February 2021. Having been arrested on 19 February 2021 he was in custody until being granted bail in the Supreme Court on 15 April 2021, that is a period of 56 days.

3. He was arrested again on 15 April 2022 in respect of unrelated matters which are listed for summary hearing on 17 April next year at the Coonabarabran Local Court. He was bail-refused for those matters and this offence since that date.

4. Although the plea of guilty was entered on 19 October 2022, which was only 16 days before the trial date of 31 October 2022, there had been some discussion between the parties as to a plea of guilty eventually being entered, and the plea of guilty was entered after resolution between the parties. It is accepted by both parties, that is, the Crown and the representatives for the offender, that in those circumstances the appropriate discount for the utility of the plea is 10% and such a discount will be provided.

5. The facts are agreed and are as follows:

THE PROPERTY

1. Lot 3, Junction Point Road, Crooked Corner/Binda (the property) is in a large rural location with an unsealed driveway off Junction Point Road. The driveway is lined with gum trees and scrub, eventually leading to a house. The house itself is a single storey building with large aluminium verandas off the length of each side of the house. There is also a caravan next to the house and a shed located some metres away from the house.

2. The property is owned by Hanna Lebbos, who has owned it for 17 years. Mr Lebbos had leased the property to the offender for 12 months commencing on 20 October 2019.

3. Mr Lebbos had known the offender for about two years, as the offender did building work across the road from Mr Lebbos’s residential address. The offender agreed to pay $1,000 a month rent for the property, with a provision to buy the property at the conclusion of the lease.

THE SEARCH

4. On 28 March 2020 at 2.07pm, police attended the property after receiving intelligence that it was being used for the cultivation of cannabis. When police arrived, they announced their presence and saw the offender and another male, Michael Challitia, outside the property.

5. Police asked both men if there was anyone else at the property and the offender said “no”. Police entered the property to ascertain if anybody else was present. Upon entering they identified a room set up to grow cannabis. They also confirmed that no-one else was present in the house. [A photograph of the inside of the house is contained in the agreed facts. It shows a large room with an open door through which light can be seen. It is apparently a room through the open door that is suggested was the grow room. It is almost impossible to tell from the photograph.]

6. Police went to the shed located away from the house. The shed had a closed roller door as the only apparent entrance. When police opened the roller door, they saw two exhaust fans located adjacent to the door entry. [The agreed facts contain two photographs of the shed and the exhaust fans after the roller door had been opened.]

7. Upon entering the shed, police observed a room used for growing cannabis. [The facts contain a photograph which shows at least two overhead lights illuminated, reflective insulation on at least the walls, if not also the ceiling, but it appears to be the ceiling as well, and a large number of plants on the floor in pots.]

8. The police spoke with the offender and Mr Challitia about their presence at the property. The offender informed police that:

• He had just turned up now to the property less than 15 minutes before police arrived.

• Both he and Mr Challitia were at the house for a holiday to get away from COVID.

• The owner of the property was Hanna Lebbos who lived across the road from Mr Challitia’s brother.

• The last time he had been to the property was about a month before and

• He was not aware there was cannabis growing on the property.

9. Both the offender and Mr Challitia’s mobile phones were reviewed by police at the scene and returned to them.

10. At 3.28pm police searched the car driven by the offender and owned by his wife. Police found a machete in the boot of the car. When asked by police, the offender advised he had found it on the ground near the house and put it in his car.

11. Police also found bags of fertilizer behind the rear seat of the car. The offender said he used it for gardening at home but bought it on his way down to the property rather than on his return home, because Bunnings is not open on Sunday. [There is no information in the facts as to the particular type of fertilizer, the number of bags or the size of any bags, but it is clear, as the fertilizer was contained in an ordinary motor vehicle, that it was not fertilizer to be used for general agricultural purposes on a large property.]

12. Both the offender and Mr Challitia were then released and left the property. Police obtained a crime scene warrant at 4.15pm. Shortly after 5pm police received the crime scene warrant and commenced a crime scene search of the property.

SEARCH OF THE HOUSE

13. Police identified cannabis growing in the kitchen and another room that was added to the house. This section of the building was made with plasterboard and painted with waterproofing liquid. The outside was incongruent with the rest of the property and appeared to be an extension of the property.

14. Inside the space, police identified 222 cannabis plants. The room had heat lamps and exhaust fans inside. Each cannabis plant was individually potted and between 20 centimetres and 200 centimetres in height. [There is no information in the facts as to the number of plants in any particular size range.]

SEARCH OF THE SHED

15. The inside of the shed had been lined with insulation similar to the house. There were heat lamps and an extractor fan. Police identified 128 cannabis plants. Each plant was individually potted and ranged in size from 20 centimetres to 80 centimetres.

16. Police also recovered a Mt Franklin branded water bottle on the floor of the shed. [Again, there is no delineation of any number of plants by size. Nor is there any information in the agreed facts as to the potential value of any crop.]

THE INVESTIGATION

17. On 19 February 2021, the offender was arrested and provided with an opportunity to participate in an interview with police, which he declined, as was his right. [There is nothing contained in the agreed facts to explain the delay between the offender and Mr Challitia being located at the property on 28 March 2020 and the charging of the offender on 19 February 2021. It is presumably because of intervening investigations.]

18: A buccal swab was taken from the offender, which returned a positive result in respect of his DNA being located on the mouthpiece of the water bottle found in the shed.

1. Police also obtained call charge records for the offender’s mobile phone number, which demonstrated that between 24 January 2020 and 24 April 2020 the offender’s phone was present in Crookwell, a town which according to the facts was approximately 30 minutes’ drive, but which I believe would only take a period of less than 20 minutes from the property, on 38 separate days.

   6. Those are the agreed facts as tendered. However, an earlier draft of the agreed facts is contained in the tender bundle on behalf of the offender. Those facts include the actual dates on which it is said the offender’s phone was present in Crookwell. In my view, while the facts say that his phone was present in Crookwell, all of the investigation shows of necessity is that his phone was connecting to a mobile phone tower either in or in the vicinity of Crookwell on those dates.

   7. The earlier draft actually set out all the dates. There were five days in January 2020 when there were connections to the mobile cell tower, being 24, 25, 27, 30 and 31 January. There were 16 days of connection in February, being 1, 2, 3, 5, 6, 8, 10, 11, 13, 18, 20, 21, 22, 23, 26 and 28 February. There were a further 16 days on which there was a connection in March, being 1, 4, 7, 9 on two occasions, and on 12, 13, 14, 15, 16, 17, ,19, 21, 23, 26 and 28 March 2020.

   8. It cannot be determined from the connections to the Crookwell mobile phone tower as to whether the phone was being utilised from the property at which the marijuana or crop was being grown at Lot 3, Junction Point Road, Crooked Corner/Binda, which is approximately some 19 kilometres from Crookwell. Of note is of course that the offender at the time was apparently living in the Sydney metropolitan area.

   9. The material before me indicates two possible addresses. At the time of his being charged he was residing at 3 Marmion Street, Birrong, and when arrested for an unrelated offence committed on 2 November 2019, he was apparently, according to the Court Attendance Notice contained in the defence bundle, residing at premises at 35 Australia Street, Bass Hill.

   10. Each of those premises is in the Sydney metropolitan area and the travel time in each case would be approximately some three hours to travel from Sydney to Lot 3, and of course three hours to return. Of necessity, as a car driving from Sydney would pass through Goulbourn before then turning off to Crookwell and going through Crookwell in order to reach the address at which the crop was being grown, that would mean a six-hour return trip on any individual day.

   11. The dates that I have previously referred to as showing connections to the Crookwell tower indicate that in the approximately two and a half months that the period refers to, the offender was generally connecting to the Crookwell tower, occasionally on a single day, but frequently on two or three days of an individual week. In March there was a period, including 12, 13, 15, 16 and 17 March, when it connected on each of those days as well as on some subsequent days and earlier days.

   12. As I have previously indicated, it cannot be shown from the telephone records that he was actually at the premises on any of those days, however it is a reasonable inference to draw that on those particular days when there were connections to the Crookwell tower he was in the local vicinity, if not actually connecting from Lot 3.

   13. It is unlikely that on a regular basis the offender would have travelled for an individual day for three hours to get there and three hours to return. It is likely that when there are several days in a row he was at least staying over within the local area, if not at the property. The premises had been leased from October 2019 and the offender had committed himself to a liability of $1,000 per month to lease the premises.

   14. Whatever time may have been involved if the premises were not already established for the purposes of indoor cultivation is unknown and cannot be determined simply from photographs of some of the rooms, particularly where the actual grow room in the house can only be seen to a minor extent through an open doorway. There is little information about the setup other than that there were heat lamps and light lamps. There is no indication whether there was in effect a watering system or anything of that nature which would have required frequent attendance to ensure that the plants would grow.

   15. I regard the information as provided from the police investigation as deficient in relation to such obvious matters: they would have been relevant to the sophistication of the set up. It is however at least apparent that there was a process which is likely to have started at some time after the obtaining of the lease, potentially by some conversion of the property to create the room referred to in para 12 of the facts as being added to the house, made of plasterboard and painted with waterproofing liquid.

   16. The fact that some of the plants in that room had reached a height of 2.5 metres indicates that they had been growing for a substantial period of time, if not transferred at an already substantial size to the property. There were plants of different sizes. It is reasonable to infer that what was being conducted was the cultivation by enhanced means of marijuana plants in circumstances where there might be regular cropping and replanting for the purposes of future cropping, as plants reached maturity and were processed while others were seeded or grown from cuttings.

   17. I note the offender had fertiliser in the rear of the motor vehicle belonging to his wife that he had driven there. As I have previously said, there is a lack of detail in respect to that but it does not appear to be a sufficient or significant quantity of fertiliser that might be used on an agricultural property. His explanation that he had it because he had bought it at Bunnings to take back to his home in Sydney and had brought it at Bunnings because Bunnings would not be open on Sunday, appears to be contrary to what I regard as common knowledge: that Bunnings opens seven days per week and I am not aware of any Bunnings, at least in New South Wales, where that is not the case. In my view, it is reasonable to infer that the offender had the fertiliser with him in order to provide it to the marijuana crop then growing in the premises.

   18. The offender was clearly associated with the property, being the holder of the lease, with a liability in that respect, and a potential right to purchase at the expiry of the lease. He was present at the property on 28 March 2020 and clearly at that time, and for a lengthy preceding time, both a room in the house and the shed contained significant numbers of prohibited plants growing in artificial conditions.

   19. The water bottle found in the shed links him to having been present in the shed, just as in my view the fertiliser links him to being there for the purposes of assisting in the cultivation by providing fertiliser. Just as the presence of his mobile phone connected to the Crookwell towers shows his ongoing close association with the local area.

   20. He informed Mr Borenstein, clinical psychologist, in his report of 30 November 22, that he was being paid $350 per day for work at the property. I note that in the Sentencing Assessment Report of Daniel Bryant, dated 7 December 22, the offender denied that he had participated in the cultivation and claimed he was carrying out construction work only and that he had been coerced into signing the lease in circumstances where he is illiterate. However, as I have said, his relationship with the property extends from October 2019 through to his presence there on 28 March 2020.

   21. Section 6 of the Drug Misuse and Trafficking Act provides, as relevant:

   “For the purposes of this Act and the regulations a person takes part in the cultivation...of a prohibited plant...if...

   (a) the person takes or participates in any step, or causes any step to be taken in the process of that cultivation...and

   (b) the person provides or arranges finance for any such step in that process or

   (c) the person provides the premises in which any such step in that process is taken or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates”.

   22. This offender’s role falls at least within s 6(c) as the lessee or occupier, if not also under para (a) if taking out the lease can be seen as being a step in the process of cultivation. I note a large commercial number of plants is 200 plants or above. There were between the shed and the house a quantity which was 75% in excess of the commercial threshold of 200 plants.

   23. In Nguyen v R [2011] 208 A Crim R 432 Simpson J, in the context of considering an offence of cultivating a large commercial quantity of cannabis referred to the term “principal” which is often used to describe the upper end of the hierarchy’s role.

She said;

“…the indicator of the role of an offender as “principal” involves at least some of the following characteristics:

•contributing financially to the cost of setting up the operation;

•standing to share in the profit (as distinct from receiving payment);

•…having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);

•having some decision-making role (which may not be different from the item above).

This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.”

THE CROWN

24. In its written submissions, it states as follows at para 19;

“The Crown submits that this offender, whilst not a principal, has been complicit in a major commercial enterprise having as its objective the deliberate cultivation on a very large scale, and for financial gain, of prohibited drugs. The Crown submits his moral culpability is serious and the objective seriousness of the offending is towards the mid-range.”

25. Written submissions, provided on behalf of the offender but unattributed to any author and tendered by Mr Neil KC on his behalf, although I note that the written submissions must have been - were provided to the Court before the time at which I understand Mr Neil KC came to be involved for the purposes of sentence, include the following at [30];

“It is submitted the objective seriousness of the offence is towards the lower but not at the lowest end of the objective serious spectrum significantly below the mid-range.”

26. That is on the basis of what is outlined at [29],

“Having regard to the agreed facts Court is invited to take the following features into account in assessing the objective seriousness:

(1) Whilst the quantity of prohibited plants is mid-ranged at 350 plants, there is no evidence that this offender had planted them or watered them or indeed do anything more than as he admitted to in the facts, leasing the property.

(2) There is no evidence linking the offender to the establishment of the drug premises at the property nor is there evidence to suggest that the offender financially contributed to the set-up of the cultivation.

(3) There is no evidence that the offender was the proprietor of the cannabis crop, or that he stood to gain a portion from its sale, indeed, there is no evidence of any sale”.

“A judge’s capacity to find facts is affected by the evidence. In the case of a plea of guilty, where those facts are admitted formally in an agreed statement of facts, there may be significant limitations as to a judge’s capacity to find potentially relevant facts in a given case: GAS v The Queen; SJK v The Queen [2004] 217 CLR 198; [2004] HCA 22. As the High Court made clear in Olbrich v The Queen [1999] 199 CLR 270; [1999] HCA 54 matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court recognises that sometimes a sentencing court must sentence according to what is known or agreed.” R v Chu; R v Tang [2021] NSWDC 768 Haesler SC DCJ at [10]

27. In this matter, I accept that it is not possible on the evidence before the Court to find that the offender was the principal in relation to the cultivation occurring at Lot 3. However, in my view, from the material that I have referred to, it can be inferred beyond reasonable doubt that the offender was at least very close to being the principal or at least a principal. That is not to say that he was the principal or a principal.

28. I accept the Crown submission that the evidence shows that he was complicit in a major commercial enterprise, having as its objective the deliberate cultivation on a very large scale and I would add the words (and continuing) for financial gain of prohibited drugs and that his moral culpability is serious, and the objective seriousness of his offending is towards the mid-range.

29. As to subjective matters before the Court, there is the offender’s criminal history. In that regard, I will simply note that he has an extensive history of ignoring the requirements involved in being able to lawfully drive motor vehicles or ride motorbikes and has a number of repeated offences for driving while disqualified and the like. Those are of course not particularly relevant to offending of this nature. They simply show that he has a somewhat blasé attitude to complying with the Road Transport regulations.

30. On 2 November 2019 he was detected driving a vehicle with an illicit drug present in his blood in relation to which he was fined and disqualified. The drug was apparently cocaine. That is the only drug matter in his history. It has some relevance however to sentence in that he informed Mr Borenstein that he was not a user of prohibited drugs. That would appear to be inconsistent with being found on a random oral saliva test to have cocaine present in his blood,

31. There is also a Sentence Assessment Report under the hand of Daniel Bryant, dated 7 December 2022, and a psychological report under the hand of Mr Borenstein, dated 13 November 2022.

32. In addition, there is an affidavit from Mervate Byrouthi, the offender’s wife, dated 2 December 2022, and an affidavit from Sabrina Byrouthi, the offender’s eldest daughter, dated 5 December 2022. There are character references from Baheya Elatrach, dated 5 December 2022, being a friend of the family for some 28 years, and also from Najla Elbadawi, dated 6 December 2022, a person who has known the offender for approximately eight years, first as a family friend and then because the offender is the father-in-law of Mr Elbadawi’s younger brother.

33. Subjective material is drawn from that material. However, I note that the offender did not give evidence on sentence. He is said to have met his current wife in 1992 while he was on holiday in Lebanon and within a year, they married and in the following year, travelled to Australia to begin their married life. They have five children, three daughters aged 14, 18 and 27 and two sons aged 14 and 22. The offender’s wife is aged 47 and works in home duties. His eldest daughter is married with two children. His eldest son is unemployed, and the three younger children apparently attend TAFE or school.

34. He is said to also support his family who reside in Lebanon. That did consist of his father and his mother, although since he has been in custody, and in approximately September ’22, his father then aged 94 died, and in the intervening period his mother, aged 87, has had one of her legs amputated due to being a diabetic. There are some remaining sisters and brothers in Lebanon. He is the eldest male in a family of six and is said to look after them by sending them money to assist them in looking after his parents, and now simply his mother.

35. He was raised by his parents on a farm and commenced to help his father on the farm at a young age. He left school aged eight to work on the farm full-time, and he is said not to be able to read or write. At 14, he commenced training to become a panel beater and spray painter and carried out that work until he was approximately 18, when he was conscripted into the Lebanese army where he served some 18 months without active service. At the conclusion of his period in the army, he returned to panel beating and spray painting but had left the family farm and lived and worked in Beirut.

36. He was 22 years of age when he married his wife and found work as a panel beater but did not enrol in any English course. He was apparently employed by Sydney Wide European Panel Beaters for some five years and later by Paramount Prestige for four years. After that time, he opened what is referred to as a “wrecking yard” which he sold after seven years, some 15 years ago. He then moved into demolition and excavation some six years ago and holds tickets in demolition and a white card. Although he has returned to Lebanon on a number of occasions in the intervening period, the last time was some four years ago and of course it has been difficult because of Covid and subsequently because of his incarceration to visit his family.

37. I have no reason to reject the outline of his past history as indicated in Mr Borenstein’s report. I note in respect of his wife, his daughter, and Mr Elbadawi and Mr Elatrach, that they are all very supportive of the offender. His wife refers to him as being a very hard worker and working hard to support the family, including his family remaining in Lebanon. She states;

“He has expressed deep remorse and regret over his actions. He is constantly apologising for his actions and seeks forgiveness from myself and our extended family. He knows that he has let his family down and has put shame to the family name.”

And further, in her affidavit states;

“Sam has expressed his sincere remorse. He mentions how remorseful he is daily and promised me and our children this type of mistake will not occur again.”

His daughter Sabrina in her affidavit states that he is;

“… an honest and selfless individual. On a daily basis my father expresses to me how remorseful he is and how he never plans on ending up in a gaol cell again. He has expressed that he is truly remorseful for being so reckless in his actions. He feels extremely guilty. He has spent sleepless nights and countless days thinking of how he can better himself once he is out ... Sam’s time in custody has allowed him to reflect on his past and make decisions about his future.”

38. In respect of Mr Elatrach and Mr Elbadawi, I will simply say that each has similarly expressed their support for the offender and that they hold him in a high regard, as well as him having expressed remorse and contrition to them.

39. I accept that those are genuine opinions expressed by those persons. I have already referred to the fact that he informed Mr Borenstein that he does not take drugs, which appears to be inconsistent with the cocaine offence I have referred to. He is also said to be only an occasional consumer of alcohol, does not consume any prescribed medicine or gamble, and described a satisfactory health history. He is said to have no history of psychiatric or psychological disturbance.

“There was no indication of serious psychiatric disorder e.g., psychosis. Thoughts for content and form are normal. There is no evidence of perceptual disturbances e.g., delusions, hallucinations, ideas of reference or feelings of passivity. and he presented as cognitively intact.”

40. Psychological testing was limited by the fact that his command of English was limited. However, he informed the psychologist that he entered into the offending behaviour so as to support his family in Lebanon and Sydney. His business in earthmoving and excavation is said to have failed some five years previously.

41. Mr Borenstein, in the circumstances of what he was informed of by the offender, described the offending behaviour as uncharacteristic, particularly as there was nothing in his history to predict anti-social or criminogenic tendencies and because he has previously exercised responsibility and concern for his family members. It is said that the incidence of Covid-19 in the prison system has meant that he has while on remand suffered a harsher form of custody than would otherwise be the case. I accept that Covid-19 has resulted in prisoners while serving a sentence or being on remand suffering from harsher custodial conditions than would otherwise be the case. I have taken that into account in determining the sentence.

42. In addition, I note that at the present time, Covid appears to be having another spike and it is likely that difficult conditions will continue for some time for those in custody.

43. As I previously referred to in this matter, the offender gave no evidence on sentence so that he was not subject to challenge in relation to any of the matters raised with the psychologist or issues such as remorse and contrition as referred to by his referees and the psychologist.

44. The Court of Criminal Appeal has frequently said that untested out of court statements made to third parties should be treated with caution. In Imbornone v R [2017] NSWCCA 144 at [55], they stated;

“… that although it should be a principle, it is well known and understood, it seems necessary to restate it. The following statements are derived from the authorities;

1. Although statements made to third parties are generally admissible in sentence proceedings, subject to objection and the application of the rules of evidence, a Court should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight, R v Qutami [2001] NSWCCA 353 at 58-59.

2. Statements to doctors, psychologists, psychiatrists and authors of pre-sentence reports and others or assertions contained in letters written by an offender and tendered in court should all be treated with considerable circumspections. Such evidence is untested and may be deserving of little or no weight, R v Palu [2002] NSWCCA 381 2002 134 A Crim R 174 at 185 40 to 41, R v Elfar [2003] NSWCCA 358 at 25, R v McGourty [2002] NSWCCA 335 at 24 to 25.

3. It is open to a Court in assessing the weight to be given to such statements to have regard to the fact an offender did not give evidence and was not subject to cross-examination. Butters v R [2010] NSWCCA 1 at 18. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue. Pfitzner v R [2010] NSWCCA 314 at [33].

4. If an offender appearing for sentence wishes to place evidence before the Court which is designed to minimise his or her criminality or otherwise mitigate penalty, it should be done directly and in a form which can be tested. Munro v R [2006] NSWCCA 350 at 17 to 19.

5. Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127). Generally, the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence or on oath, frequently contained self-interested assertions of a character which makes them almost impossible to verify or test (particularly when serving on the Crown in close proximity to or on the date of hearing) in the absence of any impended verification of the asserted behaviour or state of mind or a tangible expression of contrition “to treat this evidence with anything but scepticism represents a triumph over experience”. R v Harrison [2001] NSWCCA 79: [2002] 121 A Crim R 380 at 44.

45. The statement at para 5 is not particularly relevant in relation to this matter but I have included it as part of the overall statement in Imbornone.

46. It has been submitted on behalf of the offender that his plea of guilty alone is an indication of remorse and contrition. I do not accept that submission. The offender was detected at the property on 28 March 2020. He was charged on 19 February 2021. He was committed for trial from the Local Court and the matter was listed for trial on 31 October 2022. Negotiations commenced on 15 July 2022 and resulted in the plea of guilty being entered on 19 October 2022. There is a significant period of time between the charging of the offender and his final entering of a plea of guilty. A plea of guilty in itself is not necessarily an indication of remorse and contrition. The Crown case was in my view a relatively strong one.

47. I note that in my view some of the offender’s comments to Mr Borenstein and to the sentence assessment report writer do not assist him. The sentence assessment reporter refers to these, under “Attitudes”:

“Mr Ali denied he participated in the cultivation of the cannabis located in the residence. He indicated he had knowledge the residence was being used to grow cannabis. However, he claimed the depth of his involvement was carrying out construction work at the residence only.”

48. I note in that respect that there is no evidence of any construction work being carried out at the property.

“Mr Ali denied being aware he was leasing the premises the illicit drug operation was conducted from. He ascertained he was coerced into a rental agreement, apportioning blame to his illiteracy.”

49. That appears to be inconsistent with his knowledge of the persons who were friends and/or associates at the time of taking out the lease and undertaking to pay $1,000 per month.

“Mr Ali stated he was caught at the residence; therefore he is willing to accept the consequences and be sentenced accordingly”.

50. That is really to say, ‘Well, I am only prepared to be sentenced on the basis that I was present at the premises, not that I had any role or anything else in regard to it’, which is a proposition which I have already indicated that I reject.

51. That is somewhat similar to what he informed the sentence assessment officer when the sentence assessment officer raised the fact that he had been detected with an illicit substance in his bloodstream in respect of the offence of drive vehicle illicit drug present in the blood, which I have also past referred to. In relation to that, in explaining it, he informed the sentence assessment officer that he also apportioned blame to others, as he does in relation to this matter, stating that his drink was spiked.

52. Under the heading “Social Influences” the following is contained:

“Mr Ali attributed blame for the operation to others and again would not elaborate or provide any further information.”

“He stated being unwilling to provide information to police due to fears of reprisal action, however, would not elaborate on specific concerns”.

53. That alone, in my view, indicates that he has more knowledge than he has been prepared to inform the Court of, or the police.

54. Under “Insight into the Impact of the Offending” the following is contained:

“Mr Ali’s insight into the impact of the offences was self-focussed and he verbalised the impact the offence had on himself, his business and his family.”

“Mr Ali was not able to verbalise or discuss the impact drug supply has on the community at large. Mr Ali had full knowledge cannabis was being grown at the residence, therefore he would have been aware his behaviour impacted the community in some way.”

55. In my view, the issue of remorse and contrition in the circumstances is somewhat remote, however on the basis of what is contained in the affidavits of his wife and daughter, and his referees and the psychologist ‘s report, I am prepared to accept that there is at least some acceptable evidence of remorse and contrition, although it is not what I would call of high quality, particularly in the circumstances of the belated plea.

56. In R v Shi [2004] NSWCCA 135 Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at 34 the importance of giving consideration to:

“ …the well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402.”

57. The Court in R v Shi included, “the role of the offender is germane to the assessment of the objective seriousness of the offence”, and I have already referred to my assessment as to the objective seriousness of the offence as falling towards the midrange.

58. In R v Giammaria [2006] NSWCCA 63, in the context of “seriously culpable” conduct by two non-principals in cultivation offences, Sully J said at 15:

“It needs to be remembered clearly, and to be given serious effect in the ultimate sentencing outcome, that while a non-principal will normally be dealt with as being less objectively culpable than a principal in a flagrant and systematic flouting of the anti-drug laws of this State, it does not at all follow that a non-principal will receive, more or less as of course, a dramatically more lenient sentence”.

59. I have already referred to the fact that the offender’s participation in this offence is not clear on the facts ,but he claimed to be receiving $350 per day for work at the property, although he referred to that as being construction work, and that he had been coerced into signing the lease. He nonetheless lied to police about his involvement in the property, in my view, and the version he gave about being in possession of the fertiliser was unconvincing.

60. I have taken into account all of the submissions made on behalf of the offender and on behalf of the prosecution. I have referred to the available statistics through JIRS and note in that regard, as a matter of curiosity, that in relation to offences contrary to s 23(2)A of cultivating large commercial quantities of cannabis by enhanced indoor means, that there is no sentence that has ever been imposed, according to the statistics, where the head sentence was greater than the standard non-parole period. I note, however, that the vast majority of cases referred to in the statistics are in fact matters where there was a plea of guilty. From memory it was something like 179 pleas of guilty to one of not guilty.

61. I have also had regard to the cases referred to in the written submissions on behalf of the offender, which were referred to as Tang [2021] NSWDC 768, involving 1,000 plants and Trejbal [2021] NSWDC 607, involving 951 plants. Those cases should be more accurately referred to as R v Chu, R v Tang [2021] NSWDC 768 and R v McCudden; R v Doolan; R v S Worth; R v R Worth; R v Trejbal [2021] NSWDC 607. I have not found those particular cases of any great utility, but I have referred to them.

59. In addition, I have during the course of the sentence hearing supplied to the parties what is now MFI 1 on sentence, being the current schedule of cases in relation to cultivating cannabis by enhanced indoor means, large commercial quantity, available on the Public Defenders website, and the individual cases that have been referred to therein which are of some utility in appreciating the overall sentencing patterns.

60. In addition, I note that I have had cause in recent years to examine the statistics and the cases on a number of occasions when sentencing in relation to matters involving cultivation by enhanced means of large commercial quantities, in particular, in respect of my own decision in R v Tran [2017] NSWDC 397 which was appealed and dealt with in Tran v R [2018] NSWCCA 220. That involved considering the sentence for an individual whose case was that he had performed the role of arranging the lease of premises in respect of which that was his sole role, knowing that they were to be used for the purpose of growing crops of marijuana.

61. It was substantially different to this matter in that it involved a number of separate premises, being five offences in relation to large commercial quantities, one offence of not less than a commercial quantity and several offences on a Form 1, one of those being an offence of cultivating not less than a commercial quantity and exposing a child in that process, relating to a crop in his own basement, and one offence of diverting electricity on a Form 1. That matter involved a considerable amount of research in relation to the appropriate sentences, and indicative sentences to be applied, all of which survived contest on appeal.

62. At least in that matter, even though it was a plea of guilty, the aggregate sentence exceeded the standard non-parole period, being some 13 years and four months with a non-parole period of 10 years. I cite that only because the indicative sentences in relation to each of the large commercial crops in particular has some relevance in relation to this matter.

63. It has been suggested in submissions by Mr Neil KC on behalf of the offender that while it is accepted by both parties that the s 5 threshold has been passed, the Court could impose a sentence to be served by way of an ICO. As I pointed out during the sentence hearing, as there is only one offence before the Court, the sentence to be imposed would have to be a sentence of two years or less before consideration could be given to an Intensive Correction Order.

64. In my view that submission, which was part of the original written submissions supplied on behalf of the offender and was also followed up orally by Mr Neil KC, was a suggestion or submission lacking any realistic foundation. particularly having regard to what I have found as to this offender’s role and familiarity with the circumstances of the offence.

65. For the purpose of sentencing, I must have regard to s 3A of the Crimes (Sentencing Procedure) Act1999, and I must take into account such of the aggravating factors outlined in 21A(2) of that Act as are present, and such of the mitigating factors referred to in subs (3) of that section as are present, and any other relevant factor.

66. Any sentence must reflect the objective seriousness of the offence, and I must fix a sentence which will ensure that the time the offender must spend in custody reflects all of the circumstances of the offence, including its objective seriousness and the need for both general deterrence and specific deterrence as well as the fundamental purpose of punishment, the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

67. I note that general deterrence is particularly important in relation to matters such as this, as a result of the difficulty of detecting people growing prohibited crops in secluded circumstances or in residential premises at remote locations which are always difficult to detect, and are matters which continue to come before this Court on a relatively constant basis, where it is impossible to attribute any person as being the principal because of the various cut off levels of participation which are organised for the purpose of ensuring that principals will rarely be detected, and accordingly sentenced.

68. As I have said, I am prepared to find on the basis of the material before the Court that the offender is genuinely remorseful and contrite for his offending. I accept, considering in particular the fact that he was 47 years of age at the time and is now 50, with no previously relevant history other than the marginally relevant cocaine matter, that there is a low prospect of reoffending and a reasonable prospect of rehabilitation.

69. I have considered all of those matters, as well as having drilled down through the statistics to find specific cases and the matters that I have referred to, in order to determine an appropriate sentence.

70. In my view, an appropriate starting point for the head sentence was one of six years to which I have applied a 10% discount which reduces it to five years, four months and 24 days. I have further rounded that down by 24 days to give a head sentence of five years, four months.

71. I would depart from the statutory relationship of the non-parole period to the balance of term to provide for a much more substantial possible period of parole. That is, I have found special circumstances as a result of this being the offender’s first time in custody, and also to assist him in reintegrating into life in the community in a lawful manner.

72. Accordingly, the sentence is a term of imprisonment of five years, four months, which will date from 18 February 2022, to take into account the period of 56 days in custody prior to obtaining bail and the period in custody since being arrested and refused bail in respect of as yet unresolved matters and this matter. The sentence will accordingly date from 18 February 2022.

73. The non-parole period is a period of three years, which will mean that it is first eligible for parole on 17 February 2025. The balance of term is two years and four months, and the total sentence will expire on 17 June 2027.

Is there any particular matter that I have made an error in relation to, Madam Crown or whoever is there for the defence?

STANLEY: No, your Honour.

HIS HONOUR: Mr Ahmed?

AHMED: No, your Honour. Thank you.

HIS HONOUR: Thank you, all right. I will adjourn and Mr Ali, do you understand that, or do you need the dates repeated?

OFFENDER: Not understand ...(not transcribable)... Honour.

HIS HONOUR: I’ll repeat the dates for you just in case. In fact, I’ll give you a piece of paper with them written down. I will then adjourn.

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Decision last updated: 01 March 2023