R v Chipp (a pseudonym) - [2024] NSWDC 187

District Court

New South Wales

Medium Neutral Citation: R v Chipp (a pseudonym) [2024] NSWDC 187
Hearing dates: 8 April 2024, 3 May 2024
Date of orders: 3 May 2024
Decision date: 03 May 2024
Jurisdiction: Civil
Before: Sutherland SC DCJ
Decision:
Community Correction Order of 3 years, decision at [121] to [124].

Catchwords:
CRIME — Drug offences — Enhanced indoor cultivation of cannabis — Offender’s set-up misrepresented as ‘hydroponic’ — Personal use — Self-medicating for mental health, no indicia of supply to others
SENTENCING — Relevant factors on sentence — Deterrence — Offender not an appropriate vehicle for general deterrence — De La Rosa considerations

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Kresovic v R [2018] NSWCCA 37
Laughton v R [2019] NSWCCA 318
Nguyen v R [2008] NSWCCA 322
Nguyen v R [2019] NSWCCA 209
R v Dopson [2003] NSWCCA 99; (2003) 141 A Crim R 302
R v Emerton (NSWCCA Unreported 26 June 1996)
R v Hyland [2020] NSWDC 933
R v Olbrich [1999] HCA 54
R v Pui [2020] NSWDC 119
R v Seman (NSWCCA Unreported 12 May 1992)
R v Vu [2020] NSWDC 955
Tran v R [2018] NSWCCA 220
Category: Sentence
Parties: Rex (Crown)
Andrew Chipp (a pseudonym) (Offender)
Representation:
Counsel:
K Sun (Crown)
R Court (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
O’Brien Winter Partners Pty Ltd (Offender)

File Number(s): 2023/00140493
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the offender pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010.

JUDGMENT

Andrew Chipp (a pseudonym) appears for sentence following his plea of guilty to a substantive offence of cultivating a prohibited plant, namely more than a commercial quantity of cannabis.
Such an offence contravenes s 23(2)(a) of the Drug Misuse and Trafficking Act1985 and attracts a maximum penalty of 15 years imprisonment and/or a fine of up to $385,000. There is no standard non-parole period.
A second offence, namely the possession of a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act has been brought before this Court pursuant to a section 166 Certificate. That offence attracts a maximum penalty of 2 years imprisonment.
Pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010, and upon the grounds set out in s 8(1)(c) and (e), I make a non-publication order with respect to the name of the offender and matters which may reveal his true identity. The basis of that order is that the material in this judgment discloses otherwise confidential mental health and psychiatric issues relating to the offender. His safety, including the safety of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chipp (a pseudonym)

Details

AGLC: R v Chipp (a pseudonym) [2024] NSWDC 187
Case: [2024] NSWDC 187
Decision Date: 03 May 2024

CaseChat Overview and Summary

The case of R v Chipp (a pseudonym) involved the defendant being charged with drug offences related to the enhanced indoor cultivation of cannabis. Chipp claimed that the set-up was for personal use, specifically for self-medicating for mental health issues, and there was no evidence of any supply to others. The case was heard in the relevant Australian court.

The legal issues the court needed to address included whether Chipp's set-up was genuinely for personal use or if there were indicia of supply, and if so, what sentence would be appropriate. The court had to consider the relevance of deterrence in sentencing, particularly whether Chipp was an appropriate vehicle for general deterrence, and the considerations set out in De La Rosa.

In determining the sentence, the court emphasised that Chipp's set-up was misrepresented as a hydroponic operation, but the evidence showed it was for personal use. The court acknowledged Chipp's use of cannabis for self-medicating for mental health issues and found no indicia of supply to others. The court also noted that Chipp was not an appropriate vehicle for general deterrence. Consequently, the court imposed a Community Correction Order of three years.

Orders

Orders of the court

Community Correction Order of 3 years, decision at [121] to [124].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Chipp (a pseudonym) [2024] NSWDC 187
Hearing dates:	8 April 2024, 3 May 2024
Date of orders:	3 May 2024
Decision date:	03 May 2024
Jurisdiction:	Civil
Before:	Sutherland SC DCJ
Decision:	Community Correction Order of 3 years, decision at [121] to [124].
Catchwords:	CRIME — Drug offences — Enhanced indoor cultivation of cannabis — Offender’s set-up misrepresented as ‘hydroponic’ — Personal use — Self-medicating for mental health, no indicia of supply to others SENTENCING — Relevant factors on sentence — Deterrence — Offender not an appropriate vehicle for general deterrence — De La Rosa considerations
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act 2006 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Kresovic v R [2018] NSWCCA 37 Laughton v R [2019] NSWCCA 318 Nguyen v R [2008] NSWCCA 322 Nguyen v R [2019] NSWCCA 209 R v Dopson [2003] NSWCCA 99; (2003) 141 A Crim R 302 R v Emerton (NSWCCA Unreported 26 June 1996) R v Hyland [2020] NSWDC 933 R v Olbrich [1999] HCA 54 R v Pui [2020] NSWDC 119 R v Seman (NSWCCA Unreported 12 May 1992) R v Vu [2020] NSWDC 955 Tran v R [2018] NSWCCA 220
Category:	Sentence
Parties:	Rex (Crown) Andrew Chipp (a pseudonym) (Offender)
Representation:	Counsel: K Sun (Crown) R Court (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) O’Brien Winter Partners Pty Ltd (Offender)
File Number(s):	2023/00140493
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the offender pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010.