R v Greenslade

[2020] NSWDC 805

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Greenslade [2020] NSWDC 805

Hearing dates:

18 February 2020

Date of orders:

18 February 2020

Decision date:

18 February 2020

Jurisdiction:

Criminal

Before:

Judge W Hunt

Decision:

In each case the offender is convicted.

For the offence of cultivate cannabis the offender is to be subject to a Conditional Release Order for a period of 18 months.

For the offence of supply prohibited drug the offender is fined the sum of $3700

Catchwords:

CRIMINAL LAW – Sentence - Cultivate cannabis greater than the indictable quantity and less than the commercial quantity – Take part in supply prohibited drug greater than the commercial quantity – In company – Limited sophistication - No exceptional circumstances

Legislation Cited:

Criminal Proceedings Act, 1986

Drug Misuse and Trafficking Act,1995

Cases Cited:

R v Edwards [1999] NSWCCA 411

R v Ellis (1986) 6 NSWLR 603

R v Todd (1982) 2 NSWLR 517

Category:

Sentence

Parties:

The Crown
David Greenslade

Representation:

Counsel:
Ms A Bowens – Crown
Mr P Smart – Offender
Solicitors:
The Director of Public Prosecutions
Jennings & Kneipp

File Number(s):

2019/142760

JUDGMENT

1. HIS HONOUR: David Colin Greenslade is before the court for sentence in relation to two offences, one being cultivate an amount of cannabis greater than the indictable quantity and less than the commercial quantity, in breach of s 23(1)(a) of the Drug Misuse and Trafficking Act,1995. The maximum penalty available for that matter is 10 years imprisonment and/or a fine of 2,000 penalty units. No standard non-parole period has application.

2. Additionally, he is before the court for sentence in taking part in a supply of a prohibited drug greater than the commercial quantity, in breach of s 25(2) of the Drug Misuse and Trafficking Act, for which is provided a maximum penalty of 15 years imprisonment and/or a fine of 3500 penalty units. No standard non-parole period has application.

3. There are no other matters before the court, whether on a Form 1 or on a certificate pursuant to s 166 of the Criminal Proceedings Act, 1986.

4. These are ex tempore reasons for the penalties that I am going to impose on Mr Greenslade, delivered on the day that I read all the written material relied on by the parties and heard the oral submissions of both counsel for Mr Greenslade and the Crown Prosecutor. Any inelegance of expression ought be understood in the context that this matter has been heard on a day where the court is also dealing with a jury trial and also a sentence list.

5. The Crown bundle consists of some agreed facts, an indictment and material demonstrating Mr Greenslade has no criminal convictions, together with a Sentencing Assessment Report, which is confirmatory of other material led in the defence case and assesses Mr Greenslade as being at low risk of re-offending.

6. The defence materials included a bundle of material, including seven insightful and varied and detailed references from a number of people known to Mr Greenslade through his community activities, or members of his family, including his sister, brother and a brother-in-law. Additionally, there is some material evidencing his elderly mother’s compromised health, which is consistent with the need for her to be cared for. The family material makes it clear that this is a role which this offender has shouldered alone since his father passed away in 2013.

7. There are some transaction reports from the Bank of Queensland that indicate that, from time to time, he holds not insignificant amounts of money on deposit, earning interest and some deposits are consistent with sales from time to time of opals, which are part of an extensive collection he holds of not insignificant value, garnered during a decade of opal mining and his skill at fashioning those items into decorative shapes. The Crown accepts that the material creates a proper basis for it to be put that there was not really a financial imperative for Mr Greenslade to involve himself in these offences.

8. Additionally, it has some other work to do in the sentencing exercise, given the limitation of some New South Wales based options, given thatMr Greenslade is a resident of Queensland. It speaks to his ability to pay a fine or fines, as may be the case.

9. There is some other material showing that he is free of prohibited drugs and is prescribed Temazepam alone.

10. I turn to the agreed facts. The offender is now 65 years old. Although he lives in Queensland, he has property at a semi-rural property at Torrington in New South Wales. He attends at that property six times a year, for periods ranging between four and seven days, which material can be drawn from his extensive co-operative interview with the investigation police. What that means is that the maximum period of time, accepting that it may well be less, is that the total period he would be in attendance in New South Wales in one year is about 42 days.

11. On 12 March 2019, an officer from New South Wales Rural Fire Service contacted the Armidale Police Station because, while that organisation was fighting a large bush fire on the property at Torrington, a cannabis crop had been found. In due course, police applied for a search warrant, which was granted and then executed. The property in question is about 2.5 thousand acres in size. When the search warrant was executed, 110 mature cannabis plants which had been heat-singed by the fires and which ranged in height from 170 centimetres to 240 centimetres were identified and seized from an enclosure constructed of chicken wire. The enclosure was located about 110 metres away from the main living quarters.

12. In a machinery shed, police located cannabis plants hanging from wire racks and some loose cannabis in a tub. The combined weight of all that material was 27.62 kilograms. When one takes away an estimated 10.03 kilograms being attributable to the unusable stem portions of those plants, it means that the net figure in reality is 17.32 kilograms. But for the stem materials, that is a matter that would have fallen into the Local Court jurisdiction because of the weight. In terms of the cannabis, I take into account that at 110 plants it is significantly less than the maximum of the Local Court jurisdiction and it is the interaction between the two charges that have really brought both of the matters before the court for sentence.

13. Accordingly, I will take into account, in the way contemplated by authorities like R vTodd (1982) 2 NSWLR 517, the fact that the first charge could have properly been disposed of in the Local Court and although I do not consider myself bound by the Local Court jurisdiction limit of two years imprisonment, it is a relevant factor.

14. In due course, the offender attended the police station and made a lengthy and co-operative record of interview. He indicated that the person who is his co-accused, Mr Ivanic, who I am told is at large, without his guilt having either been acknowledged, or established by a court and is subject to a warrant for arrest, was brought to the property by friends to hunt and shoot and that he later agreed to be a caretaker of the property for the offender.

15. The offender was frank in indicating that he knew that Mr Ivanic wanted to grow cannabis on the property and that he did not object. Indeed, he admitted to activities over and above simply suffering the cultivation on the premises as the owner. He admitted, for instance, that he discussed with Mr Ivanic which plants should be culled, as being less appropriate specimens that he assisted the co-accused to fertilise the plants, cut some buds and took a small amount of cannabis home to give to friends at parties. The offender also made admissions as to helping the co-accused pack cannabis.

16. It is accepted in the agreed facts that the offender made full and frank admissions.

17. In terms of assessing the objective seriousness of the matters, as to the cultivation, I take into account that the plants were of what one could describe as “mid-size”. There are 110 plants against a jurisdictional maximum for the class of offence of 250 plants. There was a very limited level of sophistication, in the sense that the plants were kept in fairly close proximity to the main residence and, therefore, were apt to detection than had they been planted in a more sophisticated or disguised fashion.

18. The objective seriousness of the cultivation matter is to the lower end of the range, but not at the lowest but it does not approach the intersection of the low range with the commencement of the mid-range.

19. But for the admission of a small level of actual supply, the supply charge relates to the deemed supply of cannabis. As I have said, when one takes out the useless proportion of the weight of the material that excites the deeming provision, that matter would also fall into the Local Court jurisdiction and, similarly, that offending is unsophisticated. There is no material to suggest that the offender either financed the cultivation or had a financial motivation in relation to the supply offence more generally and that matter also is in the low range but not to the lowest range of objective seriousness, having regard to the weight of the drug involved within this class of offence.

20. It is accepted that by making admissions the principles that are enunciated by the court in R v Ellis (1986) 6 NSWLR 603 are excited. In relation to the cultivation offence, it is clear that that matter would have come to detection because of the offender’s ownership of the property. He is highly likely to have been brought to justice in relation to that matter, regardless of his admissions. Having said that, because he was frank about providing some generalised advice to Mr Ivanic and to watering and fertilising on occasion, he exposed his role to a higher level of culpability than he would have had he made no admissions. Accordingly, the penalty that would flow in relation to that matter is reduced because of those principles.

21. The Ellis principles operate, but much more starkly in relation to the second offence. Had the offender made no admissions, it is entirely unlikely that he would have been brought to justice or had any allegation of supply made against him. I accept that those principles mean that the penalty for that matter will be far more dilute than would otherwise be the case.

22. The admissions have other work to do in this matter. The testimonials speak of Mr Greenslade’s remorse and, in one case, his palpable sense of shame in relation to his offending. The fact that he was frank with the police is another indicator of remorse, as is his early plea of guilty which will attract the utilitarian discount of 25 per cent.

23. Although the offending, arguably, could be seen as being aggravated by being in company, “in company” for purposes of drug supply and drug cultivation is a much less aggravating circumstance than in company for the purposes of robbery, house breaking and the like. It was responsible of Mr Smart to put that as a potentially aggravating circumstance. All of the other factors operating in mitigation, the offender is a person of prior good character, he has excellent prospects of rehabilitation, he is a person who is unlikely to re-offend and he is remorseful. He has been, as I have said, entirely co-operative with the authorities.

24. The sentencing assessment report to which I have already averred provides some independent material consistent with a range of very insightful references about Mr Greenslade, as being a person who is not just of good character in terms of an absence of criminal convictions, but a contributor to the community generalised and to his specialised interest community, which is the Australian opal community. It is clear that he is a devoted son and that the whole of his family have relied on him to provide care to their ailing mother.

25. The principles in R v Edwards [1999] NSWCCA 411 that is, highly exceptional circumstances, meaning the effect on family militate the sentence to be imposed, are not engaged in this case. However, that said, his devotion to his mother and his general community mindedness are matters that one takes into account as part of the instinctive synthesis, that is assessing a very powerful subjective case against a case where the culpability of the offending is relatively low.

26. Ms Bowens, who appears as the Crown Prosecutor, fairly agreed with Mr Smart’s submission that the s 5 threshold had not been crossed and this is a matter where Mr Greenslade could be dealt with in a way short of any form of imprisonment, whether by ICO or otherwise.

27. I accept that it excited a palpable degree of disappointment in Mr Smart when I effectively rejected the power of his submission that there ought be consideration given to no conviction being recorded. Although I accept Mr Greenslade as a person who is a world traveller, who may have his movements to places like the United States of America constrained, whether one sees that in the current environment as being an advantage or a disadvantage to one, I will not make any further comment. I accept the imposition of convictions will be a penalty all its own, over and above anything else that I choose to impose on Mr Greenslade.

28. That said, the objective seriousness of the offending, even as characterised in the way that I have, means that it would be delinquent of me, in my view, taking into account all the purposes of sentencing as provided in s 3A of the Crimes (Sentencing Procedure) Act, were I not to impose convictions for these two matters.

29. After careful consideration and given that Mr Greenslade lives interstate, even though it is available to impose on him a Community Corrections Order, have him report to a New South Wales office of Community Corrections and then have them suspend supervision in the way that is contemplated by the helpful Sentencing Assessment Report, I have ultimately determined that the Ellis factors that relate to the cultivation matter mean that it is within proper range for me to impose a Conditional Release Order, pursuant to s 8. Accordingly, the Conditional Release Order for the matter would have been two years but for the application of the utilitarian sentencing discount.

30. In relation to the cultivation matter, you are convicted. I impose on you a Conditional Release Order which requires you to be of good behaviour for a period of 18 months from today; keep the registry at this Court notified of any change of address; and to appear for sentence if called upon. If there is a breach of the law, you would be back for sentence before me in relation to that matter.

31. In relation to the supply matter, I have regard to the Ellis factors in a way that means no conditioning of Mr Greenslade’s liberty is called for in relation to that matter.

32. I have had regard to his not inconsiderable ability to pay a fine but have limited the available fine, having regard to his ability to pay, having regard to the absence of any financial motivation for that offending, and the Ellis type factors. I have also applied a 25 per cent discount to the quantum of the fine.

33. In relation to that matter, a fine of $5,000 would have been appropriate. But, after the application of the utilitarian discount, there is a fine of $3,700 to pay and there is no other penalty in relation to that matter.

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Amendments

13 January 2021 - Case title amended

Decision last updated: 13 January 2021