R v Cox

[2019] NSWDC 167

District Court

New South Wales

Medium Neutral Citation:	R v Cox [2019] NSWDC 167
Hearing dates:	17 April 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence 6 years 6 months. Non-parole period of 3 years 6 months commencing 09/01/2018 and expiring 08/07/2021.
Catchwords:	SENTENCING – relevant facts – cultivate cannabis – manufacture cannabis oil – supply cannabis – supply cannabis oil – supply cannabis resin – supply MDMA – Form 1 matters – early guilty plea – cannabis enthusiast – some supply for altruistic reasons – supply for personal profit – first time in custody – strong subjective case – need for general and specific deterrence- harshness of custody – special circumstances.
Legislation Cited:	Crimes Act 1900 Drug (Misuse and Trafficking) Act 1985
Category:	Sentence
Parties:	Bruce Anthony Cox (the offender) Director of Public Prosecutions
Representation:	Solicitors: Legal Aid NSW (for the offender) Director of Public Prosecutions
File Number(s):	2018/00119037

Judgment – Ex Tempore Revised

1. In 2017 and 2018 Bruce Anthony Cox, the offender now before the Court, was living in Jeremadra near the town of Mogo on the New South Wales South Coast. He was running a “glamping” business, from tents on the property. He has worked in hospitality a lot of his life and has a solid reputation in that field. He had plans, together with a business partner, to expand the business.

2. He had also since a very young man been a user of the drug cannabis. He had developed during the course of his cannabis use an enthusiasm for that drug and its products. He had developed skills in refining cannabis leaf and extracting from it, cannabis oil. He had been before the Courts for cannabis related offences on a prior occasion. He had also, I am prepared to accept, produced cannabis oil for use in the New South Wales government; run by the Department of Health, the Medicinal Cannabis Compassionate Use Scheme. That scheme provides that registered users can, on medical advice, use without significant risk of penalty, illicitly produced cannabis products to alleviate illnesses or conditions which do not respond well to traditional medicines.

3. I have declared my interest in this matter. As a member of the Premier’s working party on the use of cannabis for medicinal purposes in 2000, I am aware of the research and the scheme that is now in place. If this case was simply about a person who was participating in that scheme out of altruism, the result would be considerably different, but whatever his involvement in that scheme, the evidence before me indicates that the offender was not continuing in 2017 and 2018, except on perhaps an informal and totally unregulated basis.

4. On 9 January 2018 police stopped a car travelling on the Pacific Highway north of Newcastle at Mandalong. The car was speeding. The offender was driving. He was subject to a breath test with a negative result, but a roadside drug test revealed a positive result for cannabis. It was noticed by police that there were two children and another licensed driver within the vehicle. Police suspicions were alerted by the smell of cannabis. A decision was made to search the offender and the vehicle.

5. The offender told the police that he had some medical cannabis on him and he produced the form which is now exhibit 1, about the previous ‘cannabis for the terminally ill’ scheme from 2016, exhibit 2. He then showed the police the boot of his vehicle. A search of the accused and the vehicle indicated a cannabis joint, which is a matter on the Form 1; $11,500, the subject of a charge of knowingly deal with the proceeds of crime; 2.28 kilograms of cannabis leaf, the subject of a charge of supply more than indictable but less than commercial quantity of cannabis; a capsicum spray, a matter on the Form 1; 250 capsules of cannabis oil, the subject of supply cannabis oil charge; and some cannabis resin, the subject of another supply charge.

6. During the course of the searches the offender was seen to dispose of an item. This item was found and within it were MDMA tablets;250 capsules were found in all, these are the subject of a supply MDMA charge.

7. The form that was produced was checked and it was confirmed that the offender was not formally registered under the Medicinal Cannabis Compassionate Use Scheme. In fact, a police examination of the phone held by the offender indicated that he was engaged in the business of supplying drugs.

8. Not surprisingly, police obtained a search warrant for Cox’s home, a rental property at Jeremadra. The search of the house revealed some cannabis cookies, a matter on the Form 1; over 170 capsules of 3,4-methylenedioxy methylamphetamine; 30 cannabis plants found in a grow house containing hydroponic tents, and which fall within the category of enhanced indoor cultivation for commercial purposes; and a shed which had been set up for the manufacture of cannabis oil. They also found 1.3 kilograms of cannabis leaf in various parts of the property.

9. The two groups of offences were sent to this Court for sentence. One group required an indictment be presented. That indictment was merely to correct procedural matters. Pleas of guilty to all relevant matters were entered in the Local Court. The offender is entitled to a reduction in the otherwise appropriate sentence, for each matter including 25% to reflect the utilitarian value of that plea of guilty. His plea of guilty also has some value in my assessment of all relevant factors including his prospects for rehabilitation and, in his case, some limited acceptance or responsibility for the criminality of his actions.

10. Such are the extent and number of his crimes, that he must be sentenced to custody, and sentenced to custody for a period which reflects the objective seriousness of what he did. Guidance must be taken from the maximum penalties available. There is also a need to reinforce with him how serious his actions were and to signal to the members of the community that they too cannot think themselves above the law. The supply of illicit drugs in the community is regarded by Parliament on behalf of the people of New South Wales, as a very serious crime requiring serious and retributive punishment.

11. The offence of knowingly deal with the proceeds of crime, s 193(b)(2) Crimes Act 1900, carries a maximum penalty of 15 years. Supplying prohibited drugs for a commercial quantity of cannabis, a maximum penalty of ten years imprisonment. Supplying a commercial quantity of a drug, not cannabis, the MDMA, carries 15 years imprisonment. Manufacture of cannabis oil s 24(1) of the Drug (Misuse and Trafficking) Act 1985, has a maximum penalty of 15 years. Supplying methylamphetamine also has a maximum penalty of 15 years. Indoor cultivation for commercial purposes of cannabis plants; s 23(1A) Drug (Misuse and Trafficking) Act, carries 15 years.

12. I am prepared to accept Cox’s initial motivation for involvement in manufacturing of cannabis oil came out of an enthusiasm for cannabis products and a degree of altruism. However, all the material before me indicates that whatever that initial altruism, Cox chose to supply not just to the sick and needy with cannabis and cannabis products. He was supplying these products generally together with MDMA. He did so for personal profit. He was the principal, and all the information before me indicates the sole operator, of this enterprise.

13. It was not particularly sophisticated operation. It was operating from a shed and grow tents on a small property at the back of Mogo. But so serious were the offences, both individually and collectively, that only full-time custody can be imposed. I have to formulate sentences that reflect the criminality of what was done and the other relevant factors so far as each of the matters for sentence are concerned. I have to give him the advantage of his plea of guilty and ensure that the process of accumulation does not erode that benefit.

14. I have to moderate the sentences so far as the accumulation is concerned by imposing a total sentence, which here will be an aggregate sentence, that is just and appropriate to the totality of his offending behaviour.

15. There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. Here the production of cannabis leaf led to a product which was utilised in the production of cannabis oil and the cannabis resin and their subsequent sale.

16. The supply involves the three products: leaf, resin and oil which had all been produced on the property at Jeremadra. The money which he accepts by his plea was the proceeds of crime, reflects the operation he was running. When drug suppliers are caught, they are often caught with money. The amount of money they are caught with often depends upon what stage of the business cycle they were arrested at.

17. All of these matters while separate are also related and part of a course of conduct. The cannabis matters can and should have a considerable degree of concurrence. That said there is no discount for committing multiple offences.

18. The MDMA matters involve a substantial number of pills. The potential harm to the community recognised by the distribution of them requires some differentiation and accumulation from the grouped cannabis offences. This was a commercial operation. It requires punishment because of that fact.

19. The material before me indicates that while in custody and having been abstinent from long term cannabis use, the offender is now more rational, less prone to fantasy and able to engage with friends and his family. He is now more focussed and friendlier as his mother said in evidence before me. He is old enough and skilled enough to resume a life in the community where he can play a productive role.

20. The purposes of sentencing point in different directions here. Cox must be removed from community for a period because of the nature and number of offences and the nature and number of the drugs involved. It must be for a significant period, but he must be returned to the community. I have sought to structure the sentence so that a significant portion of the sentence can be served in the community, should he earn his parole. The material before me indicates that he should have no trouble earning that parole. He has participated in the remands addiction program. He has obtained additional qualifications while in custody.

21. The Sentence Assessment Report (SAR) puts him at medium risk of reoffending because of his prior record and his long-term history of cannabis use. The SAR concludes a supervision plan that can be implemented when he is released.

22. I discount his denials to the parole officer that the offences were not committed for financial gain. It is clear when that report was prepared there was still an element of unreality in his attitude to his offending. That is a concern and requires monitoring.

23. Dr Furst, a respected forensic psychiatrist, examined the offender. Dr Furst, as is his usual practice, provided a fairly warts and all assessment based upon the history given to him. It is not controversial. Dr Furst I am aware spent many years working within the Justice Health system and has particular experience in dealing with offenders incarcerated for the first time. He notes that Cox continues to experience high levels of anxiety and depression of mood while in custody and he thinks about the harm he has caused his kids and his family.

24. Well if Cox had thought about his children they would not have been in the car with cannabis products and the other items, including weapons. They would not have been in the car while he was affected by the drug cannabis. There is more than enough material before me to accept Dr Furst’s conclusion that Cox suffered from a substance use disorder.

25. There is also a history of chronic pain issues resulting from a number of serious accidents. I am aware that many people who suffer chronic pain can and do medicate with cannabis. I am not aware of anything that indicates that self-medication with MDMA has any effect on chronic pain. Dr Furst recommends that if in custody Cox continue with programs such as EQUIPS addiction and that when in the community he follow a treatment plan, involving a mental health care plan with a focus on drug and alcohol relapse prevention.

26. He also notes something which should be notorious but often is ignored by the community. Judges who sentence matters regularly are aware of the fact of the lived experience in prison, but it needs to be repeated.

“Adult correctional centres in New South Wales are inherently stressful with frequent exposure to violence from other inmates, threats, overcrowding and lack of access to appropriate mental health and other services. Mr Cox reported being highly stressed after his arrest claiming he was extorted and his life was threatened. He has been highly anxious since that time in mood that sleeps poorly consistent with his fears. He was placed in a special management area of protection. Given the threats he received he has high level anxiety over the last 12 months coupled with restrictions of SMAP management. I have the opinion the custodial environment is likely to be more onerous for Mr Cox than the theoretical average inmate, including but not limited to the likelihood of exposure to violence incidents and increased anxiety”.

27. Dr Furst notes however, that

“… he does not appear to have a major mental illness, has developed an insight into the negative effects of cannabis and his own addiction issues...”

28. The offender’s prospects of making an adjustment to the community depend on him remaining abstinent.

29. In synthesising all these matters, because of the nature of the offences as I have said must be significant there must be a significant custodial sentences in total and individually. They can be moderated by some concurrence and a finding of special circumstances, but mitigating factors can only go so far.

30. As I said this is an aggregate sentence, I will work through the sequences. I am starting with the Mandalong matters:

For knowingly deal with the proceeds of crime I indicate a sentence of one year and ten months.

For supply cannabis leaf, two years and seven months.

For supplying cannabis oil, two years seven months.

For supplying of prohibited drug, MDMA taking into account the matters on the Form 1, three years.

For supplying the quantity of cannabis resin, one year, one month.

31. 31    Moving now to the Jeremadra matters:

For the manufacture of prohibited drug, two years three months.

For supplying prohibited drug MDMA two years, seven months. The MDMA also has a Form 1.

For enhanced indoor cultivation, two years three months.

For supplying cannabis, commercial quantity, one year ten months.

32. So far as the cannabis matters are concerned, while strictly the elements are not the same, there must be and should be considerable overlap as the offences are related and part of the course of conduct. The MDMA matters require more substantial accumulation.

33. There will be an aggregate sentence in this matter. The aggregate sentence is one of six years and six months. There will be a non-parole period of three years and six months – giving effect to my finding of special circumstances. The sentence will commence on 9 January 2018. You will be eligible for consideration for release to parole on 8 July 2021. There will be a non parole period of three years from that date. The total sentence expiring on 8 July 2024.

34. I make drug destruction orders if they have not already been destroyed and orders for the destruction of the knife, and the capsicum spray.

35. I order that the $11,500 be forfeited.

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Decision last updated: 09 May 2019