R v Featherstone

[2023] NSWDC 240

District Court

New South Wales

Medium Neutral Citation:

R v Featherstone [2023] NSWDC 240

Hearing dates:

28 June 2023

Date of orders:

6 July 2023

Decision date:

06 July 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [59]

Catchwords:

CRIME — Drug offences — Enhanced indoor cultivate cannabis for commercial purposes

CRIME — Drug offences — Possess prohibited drug

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Mesterovicv The Queen [2016] NSWCCA 140

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Rex (The Crown)
John Featherstone (Offender)

Representation:

Counsel:
Anderson for Featherstone

Solicitors:
Bertuzzi for The Director of the Office of Public Prosecutions

File Number(s):

2022/00082390

Publication restriction:

NA

JUDGMENT

1. John Featherstone, the offender, appears for sentence in respect of the following two offences:

1. In breach of section 23(1A) of the Drug Misuse and Trafficking Act (“DMTA”) he cultivated a prohibited plant namely cannabis of not less than the small quantity but less than the commercial quantity and being 13 plants by enhanced indoor means. The maximum sentence is 15 years imprisonment and/or 3500 penalty units. There is no standard non-parole period. This offence will be referred to as “the cultivate offence”.

2. In breach of section 25(2) DMTA he supplied a prohibited drug (not cannabis) in an amount no less than the commercial quantity. That drug was psilocybin. The maximum penalty for that offence is 20 years imprisonment and or 3500 penalty units. The offence has a standard non-parole period of 10 years. This offence will be referred to as the “supply offence”.

2. I take the maximum sentences and the standard non-parole period in respect of the cultivate offence into account as legislative guideposts indicating the legislature’s view of the seriousness of the offences to assist in arriving at the appropriate sentence.

3. In respect of the cultivate offence there are a further three offences to take into account by way of the Form 1 procedure. Those three further offences are as follows:

1. In breach of section 10(1) DMTA being in possession of 6 g of cannabis leaf; the maximum sentence for that offence is 2 years imprisonment and/or a fine of 20 penalty units;

2. A second count in breach of section 10(1) DMTA of being in possession of 3 g of cannabis seeds; the maximum sentence for this offence is 2 years imprisonment and/or a fine of 20 penalty units;

3. In breach of section 25(1) of the DMTA, supplying a prohibited drug namely cannabis in the amount of 1.5 kg. I note that is an indictable quantity but less than a commercial quantity so that the maximum sentence for that offence when dealt with on indictment is a term of imprisonment of 10 years and/or a fine of 2000 penalty units.

4. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. The point of indicating the maximum penalties for the other offending is to indicate their seriousness to assist in determining just how much greater weight should be given to the sentence for the principal offence, but at the same time it must be remembered that the sentence arrived at needs to be in proportion to the objective seriousness and criminality of the principal offence. In other words there is a range along which the sentence for the principal offence will ultimately come to rest, and the more serious the Form 1 offenses the greater basis there is for the sentence ultimately being further along the available range of sentence.

The facts

5. On 22 March 2022 police attended at the home address of the offender which was a rural property. The police searched a shed. Inside were two large grow tents hidden by a tarpaulin. The first tent contained drying racks and the second housed one cannabis plant being grown hydroponically. Within that same shed was another room in which were a further 12 cannabis plants being grown hydroponically. In that room there was LED lighting, dehumidifiers, air-conditioning, timers, extraction fans, water pumps, fertiliser and monitors to measure the levels of oxygen and carbon dioxide. These 12 plants are approximately 60 cm high. These plants together with the one other plant make up the 13 plants the subject of the cultivate offence.

6. In the same shed in a chest freezer was found 4 large clear resealable heat sealed bags containing 1.5 kg of cannabis leaf which is the Form 1 matter of supply.

7. Also located was a small amount of cannabis leaf of 6g, being the cannabis possession offence on the Form 1.

8. Next the police found a bag containing 59.7 g of psilocybin which is the section 25(2) offence, the supply offence.

9. Lastly the police located 100 cannabis seeds of 3g in total which founds the second possession offence being dealt with on a Form 1.

10. The police also found instructive documents on the offender’s computer displaying nutritional requirements of cannabis plants and a floor plan of the hydroponic setup. There were also Excel spreadsheets with dates detailing when the plants were to be cut, dried and switched as well as a shopping list of materials. The Excel spreadsheet was in evidence and is in some regards is a remarkable document. It is detailed. It has a list of dates on which presumably things are to occur dating through to December 2024. It keeps details of the costs of the materials presumably purchased for the purpose of carrying out the hydroponic operation.

11. There are at least two ways of looking at this documentation. One is that it is indicative of a very well organised operation that is intended to be continued with for some time. The other is that it shows the offender to be a person given to very great detail and is intensely interested in the development of cannabis plants, but not in the way that a criminal cultivator of cannabis might be. Ordinarily a supplier of cannabis might have what is commonly referred to as a tick list of the names of people they wish to supply and perhaps a more clever commercial supplier might try and keep that sort of record difficult to access, rather than on their desktop computer. The point being on the second view, which may be a more subjective way of looking at the matter, it gives some support to the offender’s version of events as being a person wanting to be involved in cannabis production for health reasons. That of course does not change the troubling fact that he knew at all times that it was against the law and regardless of whether he did know (and it is not suggested he did not), it was. This is perhaps a matter best considered in the subjective considerations below rather than for objective seriousness.

Objective seriousness

12. In respect of the cultivate offence there were 13 plants. They were cultivated by enhanced indoor means. The small quantity as provided for by schedule 1 of the DMTA is 5 plants and the commercial quantity is 50. The number of plants is much closer to a small quantity than a commercial quantity. Whilst noting the amount of the drug is not the sole nor even determinative factor, it is a matter that I take into account.

13. The plants were found in a locked shed in grow tents hidden by a tarpaulin, and in a room within the shed. The offender was seeking to keep his activity concealed. That said it was a concealment that could be revealed with ease once entry to the shed was gained.

14. The operation was well organised, and one which the evidence showed a reasonable investment had been made of some $11,000.  It is unclear just how much money has been expended; set up costs are said to be $7263, materials purchased $7715 and "accounts to date" (per Crown submission) being the $11,438.  There is duplication in these figures as the excel sheets list amounts in respect of both supplier and the type of material.  The reference in submissions by the Crown was to the $11,438 figure, and I adopt that figure.

15. The role of the offender would seem to be that of a sole proprietor; there is no evidence of involvement of anybody else either in the procurement of material for the cultivation, the maintenance of the plants, nor their ultimate harvesting. In other words he was wholly responsible for this offending in every respect.

16. Despite the level of organisation of this cultivation, it is low level and low scale.  That view is tempered to some extent by the presence of the packaged 1.5kg, suggesting, and I find, that the cultivation had extended beyond 13 plants, and so that this was an ongoing course of conduct, something also supported by the excel spreadsheets.  That said, the 1.5kg was found in four bags; there was no evidence of smaller resealable bags, supporting a view that there was not a large number of recipients of the drug.  That of course leaves open bulk supply to another or others who on sell, but that is not a finding that can be made beyond reasonable doubt on the available evidence.  The suggestion of the use being for people in pain might also explain this, though you would expect some bags for that to occur.  Further, whilst scales appear in the excel spreadsheet, none are referred to as found in the agreed facts.  The result is a lack of clarity as to the intended destination of the 1.5kg of cannabis, and facts not altogether at odds with the view that this cultivation was not steeped in criminality with an intention to service a large market.  

17. Taking all of these matters into account I accept the offender’s submission that it is in the low range of objective seriousness.  The Crown written submissions make the same submission.

18. In respect of the supply offence the amount involved was 59.7 g. To be a commercial quantity the amount must be 25 g or more and 100 g is a large commercial quantity. It is therefore an amount well beyond what is needed to make out the offence.

19. The task of assessing the objective seriousness of the supply offence is difficult because the facts concerning it do not extend beyond saying that the specified amount of the specified drug was found in a bag. Psilocybin is referred to as “magic mushrooms” colloquially; is what was found in the bag the actual mushroom plant? Was it treated in some way to be in some other form be it powder or liquid or paste? Simply nothing is known though in submissions the impression gained was that these were simply the mushrooms as picked in a field.

20. With this limited information I would assess the matter as being in the low range.

21. In respect of the cultivate offence the form one matters need to be taken into consideration. In my view the possess offence relating to 6 g of cannabis leaf has little if any impact on the ultimate outcome. It is a matter which commonly in the Local Court might be dealt with by way of a fine or a community order and indeed when subjective matters were considered there would be an argument for no conviction. Objectively it too is in the low range although it should be said that 6 g is no trifling amount but plainly able to be explained as personal use.

22. The same might be said of the 3 g of cannabis seeds possession offence.

23. What is more concerning is the four large clear resealable heat sealed bags containing a total of 1.5 kg of cannabis leaf. That offence is brought on the basis of the deeming provisions under section 29 DMTA. The amount required for the deeming provision to take effect is a trafficable amount which in respect of cannabis leaf is 300 g. That said in order to be a commercial quantity the amount required is 25 kg so that even the legislation recognises that in terms of cannabis leaf far greater amounts are required for it to be of heightened seriousness. It should however be borne in mind that the maximum sentence for this offence is 10 years imprisonment. In my view this offending is beneath the midrange but not to be viewed as minimalist as the other Form 1 matters.

Subjective case

24. The offender is entitled to a 25% discount on his sentence due to the time at which he entered his plea of guilty to these offences.

25. The offender has no criminal history. He is therefore entitled to leniency. Furthermore, the uncontested evidence is he has led a life in which he has made significant contributions to his community and acted in a very prosocial way. He is now 50 years of age. It is appropriate that he be extended leniency reflecting that but for these events he has been for a long time a very prosocial person making meaningful contributions to his community. That leniency of course is constrained by the principle of proportionality.

26. A sentencing assessment report was prepared and forms part of the Crown bundle. It records the offender is married with three children aged 16 to 21 and that he has a supportive family. He has tertiary qualifications and due to these proceedings has had to put a Masters course on hold. He works for two employers and is considered a valued employee.

27. His attitude to the offending was to say he was naïve about the psilocybin and said that he was using it as part of his studies regarding mental health treatment. The state of the evidence concerning that drug in this case means that might well be the position. As to the cannabis matters, he says he has been a social smoker of cannabis for many years and that it was for personal use. The four, heat sealed plastic bags containing 1.5 kg leads me to reject that proposition which in any event was not maintained by him in his submissions. As I understand it there were others that he was supplying for so-called medical reasons. It does not show him in a good light in this aspect. As to his personal use he says he has never been a daily user of cannabis which he does use for relaxation. He has now ceased using cannabis since his arrest. He said that cannabis was a drug that was popular with his circle of friends.

28. The offender saw the impact of the offending as being the impact it had on his family and the stress it caused.

29. He was willing to undertake intervention and engaging community service work. He cooperated with the assessment process.

30. He was assessed as being a low risk of reoffending. He was considered suitable for community service work

31. With respect that report is favourable to the offender and is the type of report one might expect for a first-time offender at the age of 50 who has led a prosocial life.

32. The offender read an affidavit of himself sworn 28 June 2023. The contents of that affidavit were not challenged, and I accept what it states. In terms of community involvement, it shows the following:

1. The offender was involved with the PCYC at Moree for five years.

2. He was the president of the Moree motorcycle club which with the Local Council developed a young rider program for youth.

3. He was involved with the Coffs Harbour Bluewater Freedivers club. That organisation ran an international competition and part of its objective was to raise money which he did successfully for the local Rotary club and Marine rescue.

4. He was a member of the board of New South Wales recreational fishing which is involved with funding projects promoting fishing both recreationally and environmentally.

33. The affidavit sets out a history of employment throughout his adult life. His most recent employment is with an organisation called Able Spirits which provides support for indigenous youth. He presently provides a mentoring service for young indigenous men.

34. As already noted, he was educated to tertiary level and in fact has a Bachelor of Information Technology, and a Bachelor of Psychological Science, including honours. He in fact received the Southern Cross University award for academic excellence.

35. He was accepted to do a Master of Professional Psychology this year but the current proceedings prevented him obtaining the necessary registration with the Australian Health Practitioner Regulation Agency.

36. The current offences have also prevented him obtaining a position with the Pathfinders organisation which employs youth workers and also prevented him succeeding with an application to Life Without Barriers and also CASPA.

37. The inability to complete the Masters course has taken an emotional toll on him and I would infer so too would the other rejections. I accept that to be the position.

38. Other evidence relied upon included a reference from a Dr Poulos who supervised him in carrying out his thesis for his Honours year. He speaks of the offender having a good work ethic, being generous and having a willingness to help and collaborate with his fellow students. He speaks highly of his attitude to his studies.

39. Also in evidence was a reference from Able Spirits, an indigenous service where the offender has been working since February this year. Consistent with the work referred to above involving indigenous youth, for example in Moree, this shows the offender to be somebody willing to give back to the community and who has concern for others.

Submissions

40. It was the Crown’s position that there was no other penalty than imprisonment that was appropriate. In support of this submission the Crown submitted that the offender had no evidence of remorse other than the sentencing assessment report. To that the offender pointed to the guilty plea which was appropriate, but it should be seen in the context of a very strong Crown case. Perhaps more tellingly is the fact that the offender no longer smokes cannabis and whilst there is now some admitted use by others of the cannabis, for a casual user of cannabis to cease smoking cannabis is a recognition that did not previously exist of the wrongfulness of that behaviour and can be seen as an act of remorse. It can also be seen as an acknowledgement of wrongdoing. In my view there is evidence which I accept demonstrating remorse.

41. The argument for the Crown really rests on the fact that the penalties for this type of offending are 15 years and 20 years in respect of the cultivate and supply offences respectively, coupled with the need for deterrence and denunciation for the protection of the community and restricting the drug trade. I accept that there is a need for deterrence and denunciation. As to whether this means that imprisonment is the only appropriate sentence needs further consideration.

42. The offender's submissions set out his background as recounted above which is plainly very supportive of him in his plea. The notable feature of the offender's prosocial lifestyle is the degree to which it involves community activity and giving assistance to those in our community who may well have come from disadvantaged backgrounds.

43. The offender addressed a possible aggravating factor of a degree of planning. In that regard I have taken into account the fact that this does seem to have been a very well carried out operation when assessing the objective seriousness and so do not double count it.

44. The feature of the case of the detailed record-keeping and costings of what was occurring is relevant here perhaps. The only evidence as to why this offending was occurring is in the sentencing assessment report. There the offender maintained cannabis was for personal use which is not something that is said in the affidavit and I find difficult to accept. In respect of the psilocybin he says he was experimenting with it in respect of studies connected to mental health.

40. In submissions it was said from the bar table without any supporting evidence and despite the offender having taken the opportunity to prepare an affidavit, that there were two other people he was using the cannabis with; one who suffered diabetes and another who suffered significant pain. In other words, the cannabis was not for sale on the broader drug market but was for a limited market to assist in easing medical conditions.  Whilst this was an assertion from the bar table, the evidence of the lack of scales found on search, a lack of resealable bags, and the educational background and interests of the offender and the record keeping referred to above, do give support for this assertion.

41. Even that I find somewhat difficult to accept; there is still a lot of cannabis being stored for three people. On the other hand, it is an amount which is only 6% of the commercial quantity (1.5 kg as to 25 kg).

42. On the evidence the offender is plainly a studious person. As noted at the outset of these reasons the records he has kept relating to the cultivation of cannabis is not of a nature that is on all fours with a person seeking to cultivate for the purpose of selling it to anyone who seeks it. There might be records of times of planting and frequency of watering, but one would not expect records to be kept of purchases from Bunnings. This consideration is frankly totally unassisted by any express evidence and perhaps all that can be said is that it is somewhat odd and inconsistent with what one might find with a cultivator of more criminal intent. To that extent it could be said to provide some support for the idea that the users of the cannabis were limited in number and, perhaps in line with the explanation of the psilocybin, arose from the involvement of the offender in health services.  Ultimately I am satisfied that the cannabis leaf, and the cannabis being cultivated was for the restricted purpose the offender contended for, and not for the broad general drug market.

43. I accept the submissions of the offender that he is a person of good character and unlikely to reoffend. One would hope that the rejections he has had in furthering his career path will be overcome once these matters have been completed. The difficulties that being involved in drug use have caused him, together with the fact that he has been abstinent from cannabis since arrest, suggest to me that his rehabilitation from drug use to the extent that he engaged in before is well progressed if not complete.  Further, the set backs he has had to both work and study opportunities are a form of extra curial punishment which are taken into account.

44. As to the question of whether there is a sentence more appropriate than imprisonment the submission of the offender is that due to his very good subjective case a CCO should be considered. This is supported by statistics which were provided and marked MFI 2 which show that in respect of the cultivate offence 15.4% of a sample of 52 cases received a CCO. No statistics were provided in respect of the supply offence. My view is that the supply offence (ie of the psilocybin) is in fact far less serious in all the circumstances then the cultivate fence. The reason for that is that there is no evidence of how it came to be in the possession of the offender and there is simply no evidence about that offence at all other than he had some psilocybin, most likely in the form of a mushroom, in his possession. As submitted judicial notice can be taken of the fact that the source of psilocybin, namely mushrooms can be simply picked from a random field.

45. The Crown also relied on the Court of Criminal Appeal decision of Mesterovic [2016] NSWCCA 140 where a sentence for a cultivate fence after a verdict of guilty of a two-year good behaviour bond with a conviction was appealed (unsuccessfully) by the offender. That was a case involving 23 cannabis plants. Hydroponic equipment was located in every room of the house in question but for the kitchen and bathroom. The basis of the Crown case was that the offender had assisted in the cultivation by driving somebody to and from the premises and knowingly transporting items to the location. In other words, he was less involved in that cultivation than the offender was in the present cultivation. The offender had a similar subjective case to the current offender save that he had not expressed remorse and of course was not able to have a 25% discount.

46. What the statistics show, bearing always in mind the well-recognised limitation of them for the facts of every case are different, and also bearing in mind the example just briefly summarised, what can be said is that an CCO result is not beyond the range of available outcomes for this style of offending of cultivating.

Conclusions

52. The purposes of sentencing are set out in section 3A and are as follows:

1. To ensure the offender is adequately punished;

2. To prevent crime by deterring the offender and others from committing similar offences;

3. To protect the community from the offender;

4. To promote the rehabilitation of the offender;

5. To make the offender accountable for his actions;

6. To denounce the conduct of the offender;

7. To recognise the harm done to the victim of the crime and the community.

53. I have concluded that the two offences being sentenced are in the low range of objective seriousness, a position also adopted by both parties. Further in my view the Form 1 matters are of minor seriousness with the one exception of the 1.5 kg of cannabis forming the supply offence on the Form 1.

54. I accept that the offender's case subjectively is a very strong one. I consider the prospects of him reoffending to be almost nil. He has a long-term stable relationship and three supportive children, something that in my view is likely the product of being a supportive partner and father. That would be consistent with a person who but for this offending, and it cannot be forgotten that the evidence shows that it commenced in 2021 at least so had been ongoing for some time, has led not only a blemish free life but one in which he has brought much credit to himself.

55. The principles of sentencing allow that if a person has a lengthy criminal record, then in order to achieve the purposes of deterrence and punishment their sentence should be further along the range towards severity. Unsurprisingly it follows that if a person has a record which shows them to be but for the offending a pro social person then the sentence should be further along the range towards leniency.

56. In arriving at the sentence that I have, I have taken into account the three Form 1 offences in relation to the cultivate offence. As noted above 2 of them are in my view minor offences and the third, involving the 1.5 kg of cannabis, is one that I consider significant in the terms of this case but for the reasons discussed above do not consider it tips the sentencing result to be one where custody is the only appropriate outcome. I have also taken into account the benefit to the offender of a 25% discount on sentence due to his early plea.

57. The outcome of a CCO achieves the purpose of deterrence. To the extent that any would be cultivator of cannabis is to learn of these proceedings they would know that this 50 year old pro social, offence free man had to deal with the criminal justice system for a period of about 15 months, was unable to advance his career, suffered the embarrassment if not shame of having to come to court and be placed in the dock, and even then left with a CCO for a period of two years. The effect of that sentence will be that should he offend again he will come back before the court and this sentence may well be reviewed to become something more severe. In all the circumstances that meets the purpose of sentencing of deterrence.

58. The sentence will also adequately denounce his behaviour and make him accountable. In my view it also serves the purposes of promoting rehabilitation and protecting the community given my findings as to the likelihood of rehabilitation and of reoffending.

Orders

59. Accordingly, I make the following orders:

1. The offender is convicted of the offences under section 23(1A) and 25(2) of the Drug Misuse and Trafficking Act.

2. In respect of both offences the offender is sentence by way of the imposition of a Community Correction Order for a period of two years to date from 6 July 2023 and expiring on 5 July 2025 and subject to the following conditions:

1. That the offender not commit any offence;

2. That the offender attend before the court when called upon to do so;

3. That the offender be abstinent from cannabis;

4. That the offender carry out 150 hours of community service work;

5. I direct the offended to attend at the Coffs Harbour office of community corrections by 13 July 2023 for the purpose of facilitating the community service work.

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Decision last updated: 06 July 2023