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

1. 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.

2. 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.

3. 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.

4. 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 his mental health status, necessitates the making of such an order. It is in the public interest that this judgment and the sentence which has been passed be made available and published and that public interest significantly outweighs the public interest in fully open justice with respect to the disclosure and revelation of his name and identity.

FACTS

5. At the time of his arrest, the offender was 59 years of age and lived alone in a one-bedroom unit in [redacted]. As will become clear, he had an extensive history of mental health problems and had for many years been an habitual user of cannabis.

6. Within his small one-bedroom unit, he set up a system for the indoor growth and cultivation of cannabis plants. It is not clear for how long he had been undertaking this indoor agricultural pursuit, but the number of indoor plants that he was growing apparently caused a not insubstantial smell of cannabis to be emanating from his unit.

7. Police in due course received information about the possibility of cannabis cultivation inside his unit as a consequence of the smell which was being detected from outside the premises.

8. On the morning of Tuesday, 2 May 2023, police attended the premises at [redacted]. Police knocked on the front door and the offender opened it. Police advised Mr Chipp about the complaint they had received in relation to the smell of cannabis. Police could see a large number of cannabis plants in his bedroom from the front doorway.

9. Police told the offender that they could see the cannabis plants in his room. The offender became agitated and said: “So what, it’s just cannabis. It’s not a crime!”

10. The offender allowed police to enter his unit and he showed them his room where the police observed what appeared to be more than 100 plants in varying stages of maturity. The room had artificial lighting fixed above the plants and a small grow-hut set up in which smaller plants were growing.

11. After the offender was cautioned, he made full admissions as to the growing and nurturing of the plants. The Agreed Facts set out the following summarised points from his full admissions:

1. that he uses Cannabis to medicate himself as he has a severe mental condition – he was told that he had schizophrenia;

2. that he smokes cannabis to keep himself calm, which negates the necessity for him to go and seek out drug dealers;

3. that this is the medical treatment he has come up with himself;

4. that he has been growing these cannabis plants for 2 months;

5. that he uses dirt, water and artificial lighting to grow the cannabis plants;

6. that he waters the plants and uses fertilizer on the cannabis plants which he purchased from a hardware store;

7. that he runs the artificial lighting over them on a cycle;

8. the spray bottles found in his room contained water and some solution which he uses to feed the cannabis through the leaves;

9. that he normally smokes about 50 a day; and

10. that he grows about 30 plants at a stage.

12. Police confiscated all of the plants and removed them from his premises. In total, including the small plants in the grow-hut, there were a total of 117 cannabis plants.

13. The commercial quantity applicable to cannabis grown by enhanced indoor means is 50 plants.

14. Before leaving this summary of the facts, which is gleaned from the Statement of Agreed Facts, I should make one observation. The description of cannabis plants growing in pots, the offender’s admission that he uses dirt, water and artificial lighting to grow the plants, and the circumstances of smaller plants in the grow-hut and evidence of watering, all relevantly establish the elements of an offence of the cultivation of prohibited plants by enhanced indoor means.

15. However, the description in the Agreed Facts of a “hydroponic setup” would appear to be inconsistent with the description of plants growing in pots containing dirt. Hydroponic growth, known to lead to higher levels of the active ingredient THC, is effectively the growing of plants without dirt or potting mixture and customarily the provision of nutrients to the growing plants through the roots.

16. I am satisfied clearly that the set up was properly described as cultivation by enhanced indoor means. The use of artificial lighting and the provision of nutrients through watering, perchance by watering can, falls within the relevant definition.

17. To the extent that a hydroponic set up might indicate a more commercial and professional enterprise, I am not satisfied beyond reasonable doubt that what was in place was a “hydroponic set up”, notwithstanding the use of those words in the Agreed Facts.

18. In addition to the single substantive count of cultivation, a separate offence was charged with respect to a quantity of cannabis leaves which were found by police in the cupboard in the offender’s bedroom. That quantity of 58.75 grams forms the basis for the charge of possession of a prohibited drug which is before this Court on a section 166 Certificate.

SUBJECTIVE FACTORS

19. The offender was born in 1964. Little is known of him in the material provided to the Court with respect to his upbringing or his employment history. Prior to the present matters he had a minor criminal antecedent history being a mid-range PCA driving offence in 1989 and an offence of common assault in December 2000. He has had no criminal convictions thereafter.

20. Material recently obtained from Hunter New England Health records relating to the offender casts some relevant light on parts of his personal background and history. Detailed notes relating to his interaction with the mental health facilities provided by the Hunter New England Department of Health indicate a history including the loss of his own home at [redacted] in 2007 as a consequence of being unable to service his mortgage and his house apparently being sold by the bank. The documents produced indicate some contact in 2007 with mental health consultants.

21. It would appear that thereafter he was unemployed and in 2011 was initially referred to the Mental Health Service by an employee from Centrelink with whom the offender had some connection, presumably by attending to complete the relevant Centrelink forms from time to time. The Centrelink employee became concerned with what appeared to be a significant decline in the mental state and general presentation of the offender.

22. He was living at the time in squalor. He was at that time apparently still paying, or trying to pay, rent for one unit after being provided community-based housing by the charity Compass Housing. The community-based unit in [redacted] was the same unit that he still resided in up to the time of the present offences.

23. In 2011, in circumstances which are not spelt out in detail, the offender was admitted to the James Fletcher/Mater Mental Health Hospital on an involuntary basis pursuant to scheduling under the Mental Health Act. He remained for some period in the acute ward before being transferred to the Intermediate Stay Mental Health Unit. He was discharged ultimately after a period of approximately 9 weeks.

24. On admission he had been severely depressed, reflected poor self-care and had isolative and psychomotor retardation. He had an obsessive compulsive disorder and somatic complaints. He had been scheduled as a consequence of delusions and hallucinations. He stated that his unit had been broken into by Occult members who had raped him. He also expressed the belief that he would make millions of dollars from a jigsaw puzzle that he had designed.

25. During the period of his admission, drug screening by urine analysis yielded negative results for all categories of drugs, with the exception of cannabis (THC) which was positive. During his period in the Mental Health Unit he displayed numerous depressive symptoms. The hospital notes from the Mater, and also detailed cautions from his general practitioner, indicated that despite his manifestations of depression, he was not to be prescribed antidepressants due to severe adverse effects.

26. Shortly after being discharged from the John Fletcher Intermediate Stay Unit, he became further depressed due to the death of his dog, ‘Happy’, which he had had for 11 years. He was assigned a Care Coordinator who visited him weekly for 8 months specifically as a consequence of his inability to take antidepressants. He was assisted in going shopping and to doctors’ appointments and liaising with Compass Housing with respect to his unit.

27. Notes with respect to the offender’s mental health during 2011 indicate support also being provided to him by his good friend, [redacted], who would have the offender come and stay with him for periods of a week or two weeks at a time.

28. However, [redacted] reported to the Care Coordinator that the offender did nothing else when staying with him but drink alcohol, smoke ‘pot’, and sleep.

29. The principal diagnosis at that stage was a Bipolar Affective Disorder with a differential diagnosis of schizophrenia.

30. In 2011, he was smoking 20 cones of cannabis per day and also drinking alcohol. His inability to be prescribed anti-depressants is consistently recorded throughout the notes in capital letters.

31. In November 2011, the mental health notes indicated that he spends most of his time in bed or watching TV. A report from his friend [redacted] that he was smoking pot most of the day, every day, was denied by Mr Chipp.

32. In addition to his depression, the GP noted ongoing complaints of shoulder pain. The offender described suffering from “frozen shoulders”.

33. The situation remained unchanged through a number of consultations in 2012.

34. In June 2015, he was again admitted to the Mental Health Unit at the John Fletcher/Mater Hospital. On this occasion he had suffered from a psychotic depression. He had been prescribed Olanzapine while in the hospital with a beneficial result. Olanzapine is an antipsychotic. Following his discharge, he was referred to the Lake Macquarie Mental Health Team. He was also referred for assistance from the National Disability Insurance Scheme.

35. By March 2016, he appeared to have made a good recovery from his psychotic depression. The clinical nurse specialist from the Lake Macquarie mental health team referred him back to his GP.

36. The Court has not been provided with any medical notes, from his general practitioner or elsewhere, for the period covering approximately seven years leading up to his arrest in 2023.

37. However, more recently, in March 2024 the offender was again referred to the Lake Macquarie Mental Health Service. There were concerns regarding the state of his mental health at that time.

38. He was again allocated a Care Coordinator who would seek to engage with him during the forthcoming 6 weeks. It was intended to develop a collaborative care plan for the offender.

39. Notwithstanding that there were current GP referrals for Olanzapine, the Commonwealth Health records indicated that Olanzapine had not been dispensed to Mr Chipp since 2022.

40. The GP reported that the offender had many mental health challenges and was continuing to use THC. He was said to be on “psych medications”, although as already noted, he had apparently not been filling the prescriptions for Olanzapine. He was described as presenting with poor self-care and in a dishevelled state. He was suffering from weight loss although his mood was very cheerful, if “very rapid”.

41. He had initially been referred to the Community Mental Health Team by his GP in February 2024 with concerns about his deteriorating mental state and poor self-care. When reviewed by the Community Mental Health Team in February 2024, he was exhibiting symptoms of mania. He had tangential thought forms often referencing conspiracy theories. He also had complicated entrepreneurial ideas relating to his computer. His delusions appeared consistent with psychotic symptoms. He was prescribed Olanzapine which he did not follow.

42. After referral to the Lake Macquarie Mental Health Team in March 2024, his symptoms of mania were elevated, and he was voicing grandiose ideation. He was again scheduled pursuant to the Mental Health Act and admitted to the Mater. His legal status on admission was “mentally ill” pursuant to the provisions of the Mental Health Act. That diagnosis remained at the time of his discharge approximately one month later.

43. The primary diagnosis in March and April 2024 was Bipolar Affective Disorder with a current manic episode but without psychotic symptoms. During his admission, his symptoms of mania improved. His insight and compliance to medication also improved. He was discharged to home where it was noted in the hospital records that he lived alone in housing provided to him by the community charity Compass.

44. The court has been provided with a recent Sentencing Assessment Report dated 30 April 2024. It indicates that Mr Chipp is currently in receipt of the Disability Support Pension and confirms that he lives alone in his social housing unit which he has occupied for some 15 years. He has limited social support.

45. The Sentencing Assessment Report recounts a marijuana habit of in excess of 40 years. The offender reported having been the victim of a home invasion and described his inability to leave his premises during the extended COIVD-19 lockdown.

46. He described growing the cannabis for personal use which he believed helped with his mental health. He also described the cultivation inside his premises as ‘garden therapy’.

47. Mr Chipp reported that he had smoked marijuana daily for some 45 years. He did not appear to have any plans to cease his use and has never sought treatment for substance abuse. He described currently smoking “5 to 10 cones” per day. The Community Corrections author of the report said that he appeared to contradict himself having said at a subsequent appointment that he was only smoking “sporadically”.

48. With respect to his diagnoses from the Mater Hospital and James Fletcher Mental Health Units, Mr Chipp refuted the diagnoses and then claimed that “everyone is bipolar”.

49. He displayed remorse for breaking the law but did not identify any impact on the community nor any desire to cease his drug use. He expressed regret for having broken the law but did not agree with what he described as “heavy handed” laws with regard to a “herb”. The author of the Assessment Report recorded Mr Chipp’s willingness to undertake community service work. However, they also noted his recent involuntary admission to the Mater Hospital as well as reports that in recent times he had suffered a stroke.

50. Mr Chipp’s response to supervision appears to have been satisfactory. During the report writing period, he had made himself available for interviews, telephone calls and also a home visit. However, whilst he had made himself available, the author of the report described him as “hard to keep on track” and observed that he presented on occasion with “delusional thoughts and grandiose ideas”.

51. He was assessed pursuant to the Level of Service Inventory - Revised (LSI-R) as a medium risk of reoffending. In the event of the Court making a supervised order, Mr Chipp would be supervised at the T1 medium supervision level. This would require him to have contact with a Community Corrections Officer every 2 weeks.

52. The supervision plan which would be implemented would be to monitor his compliance with his mental health treatment; engaging him in intervention modules relating to Managing Cravings, Pro-Social Lifestyle, and Preparing for Change; and also a referral to the Community Corrections Co-Existing Disorders Coordinator for support in accessing services for mental health and substance use.

53. As a consequence of his ongoing mental health problems and evidence of a recent stroke with follow-up still being completed, and also ongoing daily illicit substance use, he has been assessed as unsuitable to undertake community service work.

54. If a supervised order is made, Community Corrections consider that a condition requiring compliance with all mental health treatment and medication would assist in managing his identified risk factors.

OBJECTIVE SERIOUSNESS

55. It goes without saying that an offence relating to the cultivation of prohibited drugs in the quantity concerned, where the statutory yardstick provided by the maximum penalty is 15 years, is obviously serious.

56. However, it needs to be properly understood that at an assessment of objective seriousness is an attempt by the tribunal of fact and law to place the particular offending into a continuum or range which is determined by reference to similar offending in other cases or circumstances.

57. All of the indications objectively are that this offending was by a mentally unwell member of the community, living alone in provided housing comprising a one-bedroom apartment, in which he grew for the purposes of self-medication respecting his mental health issues in particular, quantities of homegrown and home-harvested medication in the form of the prohibited plant, cannabis.

55. The squeezing in of 117 pot plants, from what presumably were small seedlings and up to levels of more mature plants, into his bedroom, notwithstanding the provision of artificial lighting, is demonstrative of an amateur and unsophisticated enterprise.

56. His past psychiatric history and his admissions regarding the level of his use of cannabis on a daily basis more than a decade ago is consistent with his admissions to police, namely that he was growing the plants solely for the benefit of his own use.

57. Unlike many other cases involving more than a commercial quantity of cannabis plants, there were no quantities of money or other items described as proceeds of crime. There was no indication of the possession of materials which might be utilised to supply to others. There were no scales, no zip-lock bags, no logbooks, no mobile phones (other than the one that regularly had a flat battery and was not answered when called by mental health consultants), or any of the other customary indicia of a person involved in the supply of illicit substances.

58. In my assessment, the objective seriousness of this particular offending falls towards the lowest end of the range of objective seriousness for such offending.

JIRS STATISTICS AND COMPARABLE CASES

62. Whilst recognising that bare statistics are a “blunt instrument” the statistics retained by the Judicial Commission of New South Wales provide an overview of the types of penalties imposed with respect to offences under the same section. As at the present date, the JIRS statistics on sentence reveal 336 cases dealt with under s 23(2)(a) during the period between September 2018 and the end of April 2024.

63. Of those cases, 161 resulted in full-time custody, 162 resulted in Intensive Correction Orders, 12, or 3.6%, resulted in Community Correction Orders, and one resulted in a Community Release Order.

64. The single Community Release Order is not the subject of a published judgment. However, the case characteristics indicate that the offender was more than 50 years of age and had a prior record relating to illicit drug offences of a similar type. The matter also included charges on a Form 1.

65. None of the 12 matters which resulted in Community Correction Orders have been the subject of published judgments. They include a matter dealt with in 2022 with a Community Correction Order for 8 months. The offender in that matter was aged between 21 and 25 years and had a single substantive offence relating to a commercial quantity. He had no priors and there were no matters on a Form 1.

66. It is to be observed that the majority of the 12 matters that received the benefit of a Community Correction Order related to offenders who had a single substantive offence with no Form 1 matters and no priors. However, two of the 12 cases included prior criminal offences and one of them had similar offending with custody. That offender, who was dealt with in 2021, was more than 50 years of age.

67. The Crown has referred, in its written submissions, to expressions of principle in a number of cases involving the commercial cultivation of cannabis plants. I will make particular reference to some of those shortly. A number of cases have also been provided by Ms Court, counsel for the offender. I will similarly refer to some of those.

68. The Court has also had regard to cases involving the cultivation of cannabis plants prior to the introduction of the increased penalties following the introduction to the offence of particulars relating to the enhanced indoor means of cultivation.

69. In R v Seman (NSWCCA Unreported 12 May 1992), the offender had pleaded guilty to one count of cultivating prohibited plants contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. Three additional matters were taken into account on the equivalent of a Form 1 relating to possession of a prohibited drug, namely, 30 grams of cannabis, to an offence of possession of an implement, namely a bong, and to self-administration of the drug, cannabis.

70. Following a plea of guilty in December 1991 before Judge McDevitt, a term of imprisonment of 2 years with a non-parole period of 18 months was imposed. The primary offence related to 137 cannabis plants varying in height between 6 inches and 1 metre, which were growing in pots under a fluorescent light in a shed at the rear of the offender’s premises in Kellyville. There were an additional 85 cannabis plant seedlings growing in small pots in a trailer adjacent to the shed.

71. The offender gave evidence on sentence and stated that the plants were being grown for his personal use and not for commercial gain. He also explained that he intended to dispose of any plants not suitable for smoking, in particular, any male plants. The Crown did not challenge the evidence given by the offender with respect to the plants being for his own personal use. However, the sentencing judge rejected that proposition and concluded that it was a commercial crop. He rejected the evidence that the plants which were unsuitable for smoking would have been disposed of.

72. Wood J, (Allen and Abadee JJ agreeing), in the Court of Criminal Appeal, held that these were demonstrable errors by the sentencing judge. The maximum penalty at the time was 10 years. Wood J, in proceeding to resentence, said:

“The offence was one which, in my view, called for a custodial sentence. In the existing state of the law it was not an answer that the applicant was growing the plants purely for his own use; nor were the objective circumstances mitigated by the fact that the applicant had become unwilling to pay the market price for the drug which it was his custom to use. Those who elect to dabble in drugs whether as growers, users or otherwise, must expect punishment which contains a deterrent element.”

73. The appellant was 36, owned his own light-engineering business and had a prior record of no moment. The sentence imposed at first instance was quashed and in lieu thereof, taking into account the matters on the equivalent of a Form 1, the offender was sentenced to a fixed term of imprisonment of 6 months. The sentence was backdated, given that 5 months had passed during which time he had remained in custody. The effect of the sentencing in the CCA saw him to be released one month after the judgment.

74. R v Emerton (NSWCCA Unreported 26 June 1996) was an appeal against severity for an offence of cultivating more than a commercial quantity of cannabis plants following a sentence by Saunders DCJ. Judge Saunders had sentenced the offender to 3 years imprisonment with a minimum term to be served of 1 year. The offending related to 321 cannabis plants, most of which were growing hydroponically, and the possession of 200 grams of cannabis leaf pursuant to the equivalent of a Form 1 (the procedure was known as a Form 2 at the time).

75. The statement of Agreed Facts described the potential street value of the growing plants at $642,000. The offender had given evidence at the sentence proceedings in which he had gone into some detail in explaining that his method of growing the plants would result, if successful, in the production of cannabis which would have much less value than the potential street value suggested by the Crown.

76. The offender also asserted in his evidence that this smaller quantity of cannabis which would have been produced according to his evidence, was intended by him to be used by himself alone, in satisfaction of an addiction which had developed over a number of preceding years. He was not challenged or asked any questions by the Crown in cross-examination, tending to contradict either his explanation about the quantity of cannabis which would be produced or his assertion that the production quantity was intended to be used by himself alone.

77. The Court of Criminal Appeal, per Priestley JA, (Sully and Dunford JJ agreeing), said that the factual position found by the sentencing judge, and stated in his sentencing remarks, was not open to him. The judge had accepted that there were 321 plants, and that there would have been a yield of about 64 kg of cannabis leading to the potential street value of $642,000. That potential street value was derived from an expected yield of 64 kg of cannabis leaf being produced.

78. The offender had given evidence that he expected to realise only between 1 kg and 1.3 kg from the plants. Despite the lack of any cross-examination by the Crown, the sentencing judge had commented “that is just not right”. Priestley JA, some years in advance of the High Court’s restatement of first principle in R v Olbrich [1999] HCA 54; 199 CLR 270, said that if there was a conflict of fact in a sentence proceedings, it must be resolved, and insofar as the Crown was making assertions regarding a particular statement of facts, his Honour said:

“if that factual position is to be found to be so by the Court and then used against the person being sentenced in consideration of the length of sentence, … such facts relied upon by the Crown must be proved to the criminal standard. That is, that the sentencing judge must be satisfied beyond reasonable doubt that they have been established.”

79. Priestley JA, having examined the sentencing judge’s reasons, concluded that at the very least, he had not given consideration to the question of whether, in light of the conflict of materials before him, the Crown had established beyond reasonable doubt that the cannabis was intended for use, other than his own use, by the applicant.

80. In proceeding to resentence, the Court accepted that the offender had commenced the use of marijuana following traumatic events where he had been the victim in an armed robbery some years earlier. His use of the drug had gradually descended into the addicted stage. The Court proceeded to resentence on the basis that the cannabis was being grown for the offender’s own use. Priestley JA said: “that of course, is not an answer to the offence itself.” The applicable maximum penalty at the time was 15 years.

81. At the time of the matter being dealt with in the Court of Criminal Appeal, the offender had been in custody from 6 February 1996. As at 26 June 1996, he had served approximately 4 and a half months.

82. The Court of Criminal Appeal sentenced him to a minimum term of 5 months such that he was due to be released on 5 July 1996, less than 2 weeks after the hearing. An additional term of 12 months was imposed. The Court ordered, pursuant to its then extant powers, that he be released to parole forthwith on 5 July 1996.

83. In the matter of R v Dopson [2003] NSWCCA 99; (2003) 141 A Crim R 302 the Court of Criminal Appeal did not uphold an appeal against the inadequacy of sentence brought by the Crown. Judge Graham had imposed a sentence of 2 years imprisonment with respect to an offence of cultivating more than a commercial quantity of cannabis plants, namely 501 plants. There were a further four offences relating to the possession of cannabis leaf and seeds contained on a Form 1 document. Judge Graham had sentenced the offender to 2 years imprisonment but had directed that the sentence be wholly suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

84. The potential value of the cannabis ultimately able to be obtained from those plants was likely to be in the range of $400,000 to $1,000,000. The offender gave evidence indicating that he had a substantial addiction to cannabis which he estimated was costing him anywhere between $300 and $500 per week. He was living at his parent’s home and earning an average of $400 per week as a landscaper. In the course of cross-examination, he agreed that his estimate of consuming 1 and a half to 2 ounces of cannabis per week would have meant that his habit was costing him $700 to $800 per week. The offender had agreed with that proposition. He said his only reason for cultivating the cannabis plants had been to save himself the cost of buying the drug. He asserted it was all for his personal use. The Crown challenged that evidence in cross-examination.

85. At the time of the search and seizure of the plants, there were a substantial quantity of resealable plastic bags located. A set of scales was also located. The offender’s explanation for these items was not the subject of cross-examination. The offender had contended that he was not consciously aware of the number of plants that were growing in what was a complex hydroponic cultivation system. The sentencing judge was ultimately persuaded to a view that the plants being grown were all for the use of the offender, notwithstanding the factors which would create substantial suspicion that it was for a commercial purpose.

86. Bell J (as her Honour then was), Hidden and Button JJ agreeing, made reference to the passage which I have quoted earlier from the judgment of Wood J in R v Seman. In the ultimate, the Court came to a conclusion that the determination by Judge Graham to wholly suspend the sentence was not so manifestly disproportionate to the circumstances of the offence as to lead to a conclusion that it was plainly wrong. The Court noted that his Honour had taken into account the favourable facts found by his Honour with respect to the plants being for personal use together with consideration of the period which had been spent in a residential drug treatment program.

87. Accordingly, the Crown appeal was dismissed.

88. It is important to recognise, as has been repeatedly expressed in the numerous cases to which the Crown has made reference in its written submissions in the present matter, that the Court of Criminal Appeal has expressly referred to the amending legislation concerning the hydroponic cultivation of cannabis crops. In Nguyen v R [2019] NSWCCA 209, Johnson J, (Brereton JA and Lonergan J agreeing), said at [77] to [79]:

[77] In sentencing the Applicant, it was necessary for the Court to have regard to the objects of the legislation concerning hydroponic cultivation of cannabis crops as noted by this Court in Tran v R [2018] NSWCCA 220 at [79]:

“It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities ...”

[78] As it happens, the crop at the Bankstown property was “hidden in plain sight” in an urban community whilst the crops at the Dapto property and Queanbeyan West property were located in regional centres.

[79] Both specific and general deterrence were important aspects on sentence in this case. In Tran v R, the Court said at [158]:

“Both specific deterrence and general deterrence play an important part on sentence for this class of offending as does the need for adequate punishment and denunciation of the offending conduct: s.3A(a), (b) and (f) Crimes (Sentencing Procedure) Act 1999. Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes ...”

89. I should note in passing that the judge at first instance in Nguyen (Maiden SC DCJ) explained that, by reference specifically to the number of plants (69), the case, at first sight, appeared to be at the low end of the range. However, Judge Maiden increased his assessment of the objective seriousness to: “somewhere between the middle and the low range, on account of its being a commercial operation in which he was the manager of the premises with the lease being in his name, and his participation being for his financial benefit to assist him to remain unlawfully in Australia.” (emphasis added).

90. The fact that the appeal against the severity of a sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months was dismissed in Nguyen, is of little or no assistance in the present matter.

91. The Crown’s written submissions also adverted to the emphasis which the Court, in Tran v R [2018] NSWCCA 220, had expressed with respect to the intention of Parliament that there be a substantial sentencing response for offences involving the hydroponic cultivation of cannabis crops. This was again a judgment of Johnson J, with Hoeben CJ at CL and N Adams J agreeing.

92. While the ultimate amendment to the principal Act, namely the Drug Misuse and Trafficking Act, referred to cultivation by “enhanced indoor means”, the amending legislation was entitled the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Act. The focus behind the legislation derived from the circumstance that cannabis cultivated hydroponically had been ascertained to in fact produce a more substantial yield, up to five to seven times greater, as well as a higher intensity of the active ingredient, THC, or tetrahydrocannabinol.

93. Various of the other cases relied upon by the Crown with respect to expressions of principle focused on factors including the size, sophistication and complexity of the indoor-enhanced cultivation, the number of plants and the role of the particular offender.

94. Garling J had identified the importance of role, in Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, as varying according to “whether the offender was a principal or an employee, or in some cases merely a watchman.”

95. Similarly, in Kresovic v R [2018] NSWCCA 37, Hoeben CJ at CL, (Campbell and N Adams JJ agreeing), referred to the importance of the scale and sophistication of the cultivation on the one hand and the role of the offender on the other “whether as a principal or a ‘babysitter’ or something in between.”

96. The Crown also made specific reference to Nguyen v R [2008] NSWCCA 322 where the cultivation of 105 plants and possession of 3.7 kg of cannabis leaf has been described by the sentencing judge, Bennett DCJ, as “somewhere about middle range”:

97. An appeal against the severity of a sentence of 3 years and 4 months with a non-parole period of 2 years and 6 months was dismissed by the Court of Criminal Appeal.

98. However, a closer focus on the facts of that case reveals that, similarly to many other commercial enterprises involving the indoor cultivation of cannabis, the electricity had been diverted and bypassed the meter, the internal setup included 21 electrical transformers, in addition to the 3.7 kg which were ready for supply, the sum of $14,750 was located in the premises. It was clearly a commercial enterprise.

99. It is to be observed that in none of the cases referred to by the Crown, was there a finding, or even an available finding, that the cannabis had been cultivated for personal use.

100. In addition to Nguyen, which was referred to by both the Crown and also Ms Court on behalf of the offender, Ms Court’s submissions made reference to Laughton v R [2019] NSWCCA 318. That was an unsuccessful appeal by an offender against an aggregate sentence of 5 years with a non-parole period of 3 years. The sentence at first instance had been imposed by Wilson DCJ and related to two substantive offences together with other matters on a Form 1. The first count related to 58 cannabis plants which exceeded the commercial quantity by 8 plants. There were an additional 128 grams of cannabis leaf charged as a possession of a prohibited drug and a variety of items of drug paraphernalia which were placed on a Form 1 in relation to the first substantive count.

101. The second count related to more than 21 grams of methylamphetamine which exceeded the trafficable quantity by a factor of about 7 and exceeded the indictable quantity by a factor of 400%.

102. With respect to the cultivation count, the sentencing judge had found that it was a commercial enterprise with a “high degree of sophistication”. It was a sophisticated hydroponic set up which is described in detail in the Court of Criminal Appeal judgment. The facts and outcome of that case have little direct relevance to the present matter.

89. The Defence written submissions also included references to a number of other Court of Criminal Appeal cases.

90. I have also had recourse to a number of District Court sentences involving the cultivation of a commercial quantity of cannabis plants with some relativity to the number of plants in the present matter.

91. In R v Vu [2020] NSWDC 955, 98 cannabis plants were being grown inside premises in Eastwood. Electricity had been diverted illegally from the street supply and the offender had taken a job originally advertised as a cleaning job. The sentencing judge, Neilson DCJ, described him as a “crop sitter” whose job was to water the plants and take the garbage out and bring the bins back in. The offender had spent 2 months and 6 days in custody before being granted bail in the Supreme Court. He was clearly part of a commercial enterprise.

92. He had a strong subjective case and had come to Australia on a Dependant Spouse Visa, his wife having come from Vietnam to undertake an English course at Sydney University. Neilson DCJ imposed a sentence of 18 months which was directed to be served as an Intensive Correction Order. His Honour thought it unlikely that he would be supervised during that period.

93. Neilson DCJ also made reference to earlier decisions of his own, in particular, R v Pui [2020] NSWDC 119. I do not make specific reference to that matter as it also involved a charge of taking part in the cultivation of a large commercial quantity with respect to $1.2 million worth of plants at Wentworth Falls. A separate count involving 88 plants does not provide much guidance to this Court.

94. Reference might also be made to another decision of Neilson DCJ, R v Hyland [2020] NSWDC 933. That matter concerned 117 plants and a 71-year-old offender who had permitted her son to set up an enhanced indoor hydroponic growing room. That matter ultimately led to an 18-month ICO.

CONSIDERATION

109. For the reasons that I have set out earlier in these Remarks, I reject the submission by the Crown that this present offence falls “just below the mid-range”. I have indicated earlier my reasons for concluding that, by reference to similar types of offending, the objective seriousness falls towards the lowest end of the range of objective seriousness for cultivation of a commercial quantity of plants.

110. This offender has documented psychiatric mental illnesses which have resulted on two occasions in his being scheduled pursuant to the mental health provisions in New South Wales.

111. By reference to the principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, he is clearly a less than suitable vehicle for general deterrence. On the material before this Court, he presents no danger to the community other than the likelihood of him causing damage to himself and the community then having to bear the cost of his necessary mental health treatment.

112. To the extent that the evidence that what was being grown was all for his own personal use, the Crown has effectively conceded that that is the only conclusion that the Court could reach on the evidence before the Court.

113. I should make it clear that on all of the subjective material, to the extent that it is viewed as a mitigating factor, I am satisfied, at least on the balance of probabilities, that the material was all for the personal use of the offender. I have earlier adverted to the amateur and unsophisticated nature of what was set up in his room. I reject the Crown’s description in its written submissions that this was “an entire hydroponic set up” for the reasons which I have earlier set out.

114. I have ultimately come to the conclusion, notwithstanding the yardstick provided by the maximum penalty set out by Parliament, that this case falls into an exceptional class of cases in which the section 5 threshold has not been crossed.

115. The proposed supervision plan set out by Community Corrections in the Sentencing Assessment Report, is a carefully conceived plan of supervision to deal with a mentally unwell patient in the community.

116. In my view the appropriate disposition of the principal offence is the imposition of a Community Correction Order.

117. I note that when these sentencing options were first introduced, the then Attorney-General, the Honourable Mark Speakman SC, said that the introduction of such an option would “help offenders receive the supervision and programs that address their offending behaviour.” The intention behind such orders was to “promote community safety by holding offenders accountable and tackling the causes of offending.”

118. In the particular, and as I have described, exceptional circumstances of the present matter, the use of such an order is both appropriate and necessary.

119. I should indicate that as part of the instinctive synthesis, I have factored in the entitlement to a 25% discount arising from the early plea of guilty. In circumstances where the section 5 threshold is not crossed, that consideration does not have any arithmetical correlation with a reduction in the term of a sentence.

120. In the interest of transparency, I should make clear that were I to have formed a view that the section 5 threshold was crossed, I would have reached the view that a term of imprisonment of a suitable duration would have been of a length that would have permitted the Court to proceed to impose an Intensive Correction Order. However, I am not of the view that section 5 has been crossed.

121. Mr Chipp you are convicted of the offence of cultivating more than a commercial quantity of cannabis plants. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for a period of 3 years. I should indicate that I have selected that period in order to ensure a lengthy period of ongoing supervision.

122. The standard conditions of the order will apply, namely you must not commit any offence and you must appear before the Court if called upon to do so at any time during the term of the Order.

123. I impose a further condition that you engage with Community Corrections in the supervision plan including engagement in the intervention modules recommended by them. There will be a further condition that you must comply with all mental health treatment and medication prescribed.

124. With respect to the matter which was originally on a Form 1 but is now to be dealt with pursuant to section 166, namely the possession charge, in the circumstances I record a conviction. However, the matter will be dismissed with no additional penalty pursuant to section 10A of the Crimes (Sentencing Procedure) Act.

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Decision last updated: 24 May 2024