R v Govender

[2020] NSWDC 551

District Court

New South Wales

Medium Neutral Citation:

R v Govender [2020] NSWDC 551

Hearing dates:

23 July 2020

Decision date:

23 July 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Full time custodial order to be served by way of an intensive correctional order For orders see [16]

Catchwords:

CRIME - Drug offence- Commercial cultivation of cannabis plants

SENTENCING - Relevant factors on sentence cultivation of cannabis - relatively small number of plants - small scale operation - profit the only motive- first offender- early guilty plea – impact of time on remand - impact of successful rehabilitation program - quasi custody - custodial sentence served by intensive correction in the community appropriate

Category:

Sentence

Parties:

Aneshan Govender (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms L Rowan (for the offender)

Solicitors:
AC Law Group (for the offender)
Ms J Azad (for the Director of Public Prosecutions)

File Number(s):

2019/00357559

SENTENCE – EX TEMPORE REVISED

1. There are some in our community who believe that the use and cultivation of cannabis should be legal. There are others, and they sit in Parliament, who say that to cultivate cannabis by enhanced indoor means is a serious crime. The cultivation and sale of cannabis will remain a serious crime until Parliament changes the laws. If anyone thinks that they can cultivate cannabis by enhanced indoor means and not be punished they should think again. If they think that they can do so for a commercial purpose they should think very, very carefully about the consequences.

2. The present offender did not think through the consequences of what he did. He had the mental capacity to do so. I am prepared to accept on the basis of all the material before me, that a combination of factors, set out in the reports and his own letter to me, led him to lose his moral compass; something that was fixed initially by the strong, law-abiding social supports provided by his family.

3. A combination of factors led him to depression, drug use and gambling. None can provide an excuse for the commission of any crime, let alone this crime. But they do help me understand the man for sentence.

4. He is an intelligent man. He came to this country from South Africa, with his family, via New Zealand. He has been educated here. He has earned university degrees. He has worked. He has a family and a young child. And he put all that at risk; he put it all at risk because he thought solely of himself. He thought that he could thwart the law by raising money by criminal means.

5. New South Wales Police are particularly adept at catching such people. It would appear that in 2019, for reasons which are not explained, a police task force had a lawful intercept on the offender’s phone. He was recorded talking to another man, who is to come before the Court shortly, Mr Reynolds. The intercepted calls reveal that the two offenders discussed the cultivation of cannabis plants and sale of cannabis leaf. The discussions related to what eventually was found to be a small shed, equipped to grow cannabis, in the rear yard of the co-offender’s home in Berkeley. The accused had obtained the seeds by mail order from overseas. There were discussions about the profits that were to be made from the cultivation.

6. It is clear from those recordings that the offender did not see himself as a criminal but as a man from a good family. He explained to some of the people he was talking with that he was raising money to pay his debts; which I presume to be gambling debts. But other calls also indicate that he was not immune from the lure of the profits that might otherwise be made. The discussions show that he and his co-offender had set up and were actively engaged in the cultivation process.

7. Police brought the matter to an end on 11 November 2019 when, equipped with a search warrant, they went to the house in Berkeley. There they found a detached shed. In it was a hydroponic set-up with artificial lights and tents for growing plants in pots. There were five large cannabis plants and 13 smaller plants.

8. The offender indicated a guilty plea when the matter was before the Local Court. I will reduce by 25% the otherwise appropriate sentence to reflect that early guilty plea. The maximum penalty for this offence is 15 years’ imprisonment.

9. The number of plants, as the helpful table in the Crown’s written submissions points out, is right down the bottom of the range for this sort of matter, particularly matters such as this that come before this Court. But I am acutely aware of how much profit can be made from one single plant. And it is primarily the profits that can be made from the illicit sale of drugs that causes concern to the community and the Parliament because the unregulated distribution of such illicit funds in the community can cause significant harm. It is also clear that for some in the community the use of cannabis leads to the abuse of cannabis. While it is still perhaps unresolved Parliament presumes and acted on the basis that the drug causes harm to users. That is reflected again in the maximum penalty to which I have to have proper regard.

10. This was a commercial operation. It was small scale, but an investment had been made and a return was expected. It is the commercial aspect of this cultivation that requires a custodial sentence, primarily in the hope that others might be deterred from doing what this offender did.

11. I am prepared to accept from his letter to me, his comments to his psychologist and what falls from his family, that Govender has learnt a very hard lesson. It is also clear from all of that material that he still has that family support and that the sooner he gets back to working in the community and providing for his family the safer the community will be.

12. I am reasonably confident that is unlikely to ever appear before a court again, but I cannot ignore that he has been before a court for other matters and that the wake-up call of being arrested for those other matters perhaps did not get through to him. It is clear, however, that a period in custody has enabled him to focus on his future. It is also clear that the facilities and services provided by Odyssey House have enabled him to turn his life around. He has successfully completed stages one and two. The Odyssey reports are, as Ms Rowan who appears for him says, “glowing.” He now holds a responsible position there and is well on his way and committed to completing stage three of the program.

13. To return Govender to full-time gaol, in these trying times and in the face of demonstrated progress to rehabilitation would not be in the community interest; Madam Crown does not submit otherwise.

14. That said there still must be appropriate punishment and a custodial sentence must be imposed. Without taking into account his plea of guilty a sentence of two-and-a-half years would have been appropriate. Rounding down and taking into account two-and-a-half months in custody and five months of quasi custody, which I would equate by 50%, that is five months. Which gives me a sentence of a bit over, but I will round down, to one year and five months.

15. Sentencing is not meant to be strictly mathematical, but for abundant clarity my staring point was two-and-a-half year sentence. After a reduction of 25%, that is one year ten months. Govender has spent two-and-a-half months in custody and five months at Odyssey (approximate to two-and-a-half months custody), rounded down this requires I will impose a sentence of one year and five months.

Orders

16. The formal orders of the Court are that you are sentenced to a term of imprisonment of one year and five months from today. That sentence is to be served by Intensive Correction in the community. The standard conditions apply, you are to be of good behaviour and come to the Court if you commit any crimes. In addition there these further conditions apply:

17. The following additional conditions apply: s 73A(2):

1. Complete alcohol residential program to the satisfaction of program staff.

2. Abstain from the use of illicit drugs and consent to testing for their use.

3. Report to the Community Corrections Office at Wollongong as soon as released from Odyssey House.

4. Obey all directions of Community Corrections particularly in relation to follow up drug and alcohol programs.

18. To explain - the order I make has this effect; if you leave Odyssey without completing the program or if you do not report to Community Corrections and obey their directions, particularly with regard to the abstinence provision, or any follow-up, that might be Narcotics Anonymous or attendance at one of the local agencies, you will be breached. Any serious breach could see you return to custody for a period determined by the State Parole Authority; you will not come back before me. A serious breach could see you serve the balance of the sentence which is hanging over you, one year five months from today.

19. Do you understand that, Mr Govender?

20. OFFENDER: I do, your Honour.

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Decision last updated: 22 September 2020