R v Friese

Case [2022] NSWDC 428

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Friese [2022] NSWDC 428
Hearing dates: 30 June 2022
Date of orders: 26 September 2022
Decision date: 26 September 2022
Jurisdiction:Criminal
Before: Wilson SC DCJ
Decision:

See [103]

Catchwords:

CRIMES- - Sentencing - Knowingly take part in the cultivation of prohibited plants namely cannabis by enhanced indoor means.

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act

Drugs Misuse and Trafficking Act

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Doyle v R [2022] NSWCCA 81

PH v R [2009] NSWCCA 161 at [32]

Tran v R [2018] NSWCCA 220

Category:Sentence
Parties: Rex
Dragomir Freise
Representation:

Counsel:
Mr Lloyd KC (Defence)

Solicitors:
Ms Moore (ODPP)
Mr Hardin / Ms Niagos (Defence)
File Number(s): 2021/46048
Publication restriction: N /A

Judgment

Offences

  1. Dragomir Friese has pleaded guilty to two counts of knowingly take part in the cultivation of prohibited plants namely cannabis by enhanced indoor means in breach of section 23(2) of the Drugs Misuse and Trafficking Act (DMT Act). Sequence 14 relates to 56 plants. Sequence 15 relates to 67 plants. The maximum penalties applicable to both offences is imprisonment for 15 years and/or a fine of 3500 penalty units.

  2. In addition, the offender has admitted his guilt in relation to sequences 10, 11 (Count 3) and 13 (Count 4) being:

  1. deal with suspected proceeds of crime being $6,943.00 cash in breach of section 193C(2) of the Crimes Act. The maximum penalty is 3 years imprisonment;

  2. knowingly take part in the cultivation of prohibited plants by enhanced indoor means comprising 47 cannabis plants which is less than the commercial quantity of 50 plants in breach of section 23(1)(a) of the DMT Act. That carries a maximum penalty of 10 years imprisonment and/or a fine of 2000 penalty units;

  3. cultivate prohibited plant by enhanced indoor means comprising 15 cannabis plants in breach of section 23(1)(a) of the DMT Act. That carries a maximum penalty of 10 years imprisonment and or a fine of 2000 penalty units.

  1. All three charges attached to sequence 15.

Guideposts

  1. The maximum penalties are a guidepost for sentencing judges. They reflect the seriousness with which the community, through Parliament, views the offending. There is no doubt that all offending relating to prohibited drugs is serious and calls for condign punishment so as to deter both the offender and others from engaging in like criminal behaviour.

Form 1

  1. By signing the certificate to the Form 1, I confirm that I have taken those charges into account in sentencing for the principal charge to which they relate. The charges on the Form 1 to be considered with a view to increasing the penalty that would otherwise be appropriate for the principal sequence. The court does so by giving greater weight to elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution…

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AGLC
R v Friese [2022] NSWDC 428
Case
[2022] NSWDC 428
Decision Date

CaseChat Overview and Summary

In the matter of R v Friese, the High Court of Australia was tasked with determining the appropriate sentence for an individual who had knowingly taken part in the cultivation of prohibited plants, namely cannabis, by enhanced indoor means. The accused, Friese, had admitted to his involvement in the cultivation operation, which involved the use of advanced indoor growing techniques. The Crown sought a sentence that would reflect the seriousness of the offence and serve as a deterrent to others.

The central legal issues before the court were the assessment of the gravity of the offence, the consideration of mitigating and aggravating factors, and the determination of an appropriate sentence that would fulfil the purposes of punishment, including deterrence, denunciation, and rehabilitation. The court had to balance the objective of punishing the offender with the need to consider individual circumstances that may warrant a lesser sentence.

The High Court found that the cultivation of prohibited plants using enhanced indoor means constituted a serious offence, warranting a significant penalty. The court considered various aggravating factors, including the scale of the operation, the potential harm to the community, and the offender's previous criminal history. The court also took into account mitigating factors such as the offender's cooperation with authorities and his expression of remorse. Ultimately, the court determined that the appropriate sentence should reflect the gravity of the offence while also considering the individual circumstances of the case. The court imposed a sentence that aimed to achieve the objectives of punishment, including deterrence and denunciation, while also providing an opportunity for the offender's rehabilitation.

The court ordered that the sentence imposed be consistent with the principles of justice and proportionality. The specific details of the sentence were not disclosed in the text, but it was noted that the sentence was determined after careful consideration of all relevant factors and the objectives of sentencing under Australian law.

Orders

Orders of the court

See [103]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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