R v Momoka

[2022] NSWDC 40

District Court

New South Wales

Medium Neutral Citation:

R v Momoka [2022] NSWDC 40

Hearing dates:

4 February 2022

Date of orders:

8 February 2022

Decision date:

08 February 2022

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Orders at [63]-[65].

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Large commercial quantity

Legislation Cited:

Crimes (Sentencing Procedure) Act

Crimes Act

Drug Misuse and Trafficking Act

Category:

Sentence

Parties:

Regina (Crown)
Josefa Momoka (Accused)

Representation:

Shukoor (Counsel for Accused)

Nettleton (Solicitor Advocate for Crown)

File Number(s):

2020/00152271

Judgment

1. Josefa Momoka, 25 years of age, appears for sentence in relation to one offence of cultivate cannabis large commercial quantity, 632 plants, by enhanced indoor means, an offence pursuant to s 23(2)(a), Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 20 years imprisonment. There is a prescribed standard non-parole period of ten years.

2. When dealing with the offender for that offence the Court is taking into account two further offences on a Form 1 as follows:

1. Larceny, an offence pursuant to s 117, Crimes Act. The maximum prescribed penalty when dealt with in the Local Court is two years, when dealt with on indictment is five years.

2. Destroy or damage property, an offence pursuit to s 195(1)(a), Crimes Act. The maximum prescribed penalty for that offence when dealt with summarily is two years imprisonment, when dealt with on indictment is five years imprisonment.

3. The offender pleaded guilty at the Gosford Local Court on 29 October 2021. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. The offender has been in custody since his date of arrest 27 May 2021. The sentence imposed today will be backdated to that date.

4. At the time of the commission of the principal offence the offender was on a 12 month conditional release order. I have been asked to callup the offender in respect of that matter during the current sentence proceedings.

The Agreed Facts

5. In March 2021 investigators attached to the Drug and Firearm Squad Cannabis Cultivation Team commenced Strike Force Harthouse to investigate the large scale cultivation of cannabis at 69 Berecry Road, Mangrove Mountain. 69 Berecry Road, Mangrove Mountain is a semi-rural property located on the Central Coast. The property is approximately 2.5 acres in size and contains a three bedroom house along with several sheds and five greenhouses. Only three of the greenhouses contained cannabis.

6. As part of the police investigation surveillance was undertaken at the property. On 25 March 2021 the surveillance identified that two of the greenhouses contained semi-mature cannabis plants with a small amount of leaf. Two other greenhouses had small cannabis stalks two to four inches in height.

7. Between 6 April 2021 and 16 May 2021, a period of approximately six weeks, the offender was observed at the property on five occasions.

8. On 6 April 2021 he was observed to arrive in a Jeep vehicle.

9. On 3 May 2021 he was observed to arrive in a silver Commodore.

10. On 24 May 2021 he was observed to arrive at the property. He was seen tending to cannabis plants between 5 and 6.30pm. I note that surveillance was ceased at 6.30pm.

11. On 25 May 2021 the following note was found on the offender’s phone, “A purple powder, 60 teaspoon, 2 litre A and B, 4 litre add bud”.

12. On 26 May 2021 at approximately 3pm the offender arrived at the property with an unknown male. He was seen to be tending to the plants between 3 and 3.50pm. He then left the property and returned at approximately 4.30pm. He was still at the property when surveillance was ceased 6pm.

13. On 27 May 2021 at approximately 7.30am the offender had searched the internet for the following, “How many gal is there in 1000.” He also searched, “How many gallons in 1000 litres.” The offender had completed the same searches the day prior.

14. About 11am on 27 May 2021, police attended 69 Berecry Road, Mangrove Mountain to conduct surveillance. At about 1.20pm police approached the greenhouses inside the property. The inside of the greenhouse was open with no walls separating each area. Police could smell a strong smell of cannabis. Police saw mature cannabis plants that were planted in black plastic pots with soil. The plants were on rows and each pot was connected to a black plastic irrigation and drip feeder system. The cannabis plants had buds.

15. On the lower side of the greenhouses there were black pots in rows with mature green cannabis plants. The plants had bamboo sticks supporting the branches. The pots had wet grow medium attached to the pots with lengths of black irrigation. The irrigation ran drip feeders inside the pots. The cannabis plants had buds and leaves.

16. The cannabis cultivation was divided into sections. The centre area of the cultivation had reservoirs, pumps and irrigation that ran to the pots. The reservoirs (100 litre) contained clear water and brown nutrient solution. Inside the reservoirs were electric pumps and irrigation that ran between the cannabis plants to the drip feeders. The feeders were positioned at the top of the pots. There was also lighting fixtures and timers that were powered and made continuous noise.

17. At about 3.48pm police saw the offender enter the greenhouse from an opening adjacent to the residence. Police began recording the offender as he walked next to the rows of cannabis, looking at the cannabis plants. The offender then walked towards police. Police stopped the recording and ran inside the greenhouse. The offender looked towards police and started running through the cannabis crop. Police said, “Stop police, you’re surrounded.” Police ran through the cannabis crop after the offender. The offender stopped and faced police with his hands up in the air. Police ran to the offender and placed him on the ground and handcuffed him. Police cautioned the offender and arrested him. The offender said, “How do you know my name?” Police searched the offender and did not locate anything. He told police his phone was in the house. The offender was then taken to Gosford Police Station. He declined to be interviewed by police.

18. At about 7am on 27 May 2021 police returned to 69 Berecry Road, Mangrove Mountain. In total there were 632 cannabis plants located at the property being 511 cannabis plants with roots attached, approximately 50 to 60 centimetres high and 121 cannabis plants with roots attached, all 30 to 40 centimetres high that had previously been harvested.

19. During the walk through of the residence, police found two rooms that had been converted into drying rooms for cannabis which contained transformers, lighting, drying racks and air filters.

20. It is not alleged that this offender acted alone in cultivating the cannabis plants at the property and there are ongoing police investigations in relation to the likely broader network of offenders involved. The prosecution does not seek to prove to the criminal standard expressly by way of inference, that this offender was involved in either harvesting or preparing the product of the harvest for distribution. The offender’s role in the cultivation of cannabis plants at the property is limited to those acts as expressly stated in the Agreed Facts which I have just summarised.

The facts in relation to the Form 1 offences of larceny and intentionally destroying property

21. The victim in this matter is Alan Khamis. About 9pm on 29 September 2020 the victim attended Endeavour Sports Oval with his girlfriend. That oval is located in Fairfield West.

22. The victim drove into the carpark and parked his motor vehicle, a blue coloured Lexus. The victim and his girlfriend sat in the vehicle in the carpark and watched movies.

23. About 11.45pm on that day the victim locked and secured the vehicle and he and his girlfriend went for a walk around the reserve.

24. About 1am on 30 September 2020 the victim and his girlfriend returned to the vehicle. The victim saw his passenger window and front windscreen smashed, scratches on the passenger side of the vehicle and his satchel bag and jumper missing. The victim saw glass all over the floor of his vehicle and a blood stain on the console. The victim rang police. A short time later police attended the reserve and spoke with the victim and obtained a statement.

25. During the victim’s walk this offender has entered the motor vehicle and taken belongings. The offender was linked to the offending by a DNA swab that was taken of the blood stain inside the vehicle.

26. In relation to the principal offence of cultivate cannabis (large commercial quantity), the facts that I have described disclosed serious objective criminality. The crime of cultivating prohibited drugs is regarded by the Courts as serious in circumstances where once those drugs reach the community there are very significant detrimental effects. Once the drugs the reach the community they often destroy the lives of individuals, they disrupt families and they generate a significant cost to the community both socially and financially. The community expects and is entitled to expect that people who are involved in the cultivation of prohibited drugs will face condign punishment.

Assessment of objective seriousness of the offending

27. In assessing the objective seriousness of the offending for the principal offence of cultivate large commercial quantity by enhanced indoor means, I have taken into account the following factors:

1. The quantity of the cannabis plants located namely 632 recognising that the large commercial quantity is 200 plants and there is no upper limit. I note that they were cultivated by enhanced indoor means.

2. The role of the offender. I am satisfied that the offender’s role was to tend to the crop on a casual basis. I accept the Crown’s characterisation of his role as a crop sitter albeit, part time. There is no evidence he played any role in the establishment of the cultivation or intended to play any role in the ultimate harvesting of the crop and distribution of the cannabis after it was harvested. Whilst I accept he had a limited role, it was nevertheless an important role being essential to the maintenance of a healthy crop.

3. He was to receive a financial reward of $50,000 which is not an insignificant amount. I note that there was no evidence in the Agreed Facts as to any financial reward however the offender gave evidence during the sentence proceedings.

28. Having regard to those factors, I assess the objective seriousness as being well below the middle of the range.

Aggravating factors

29. I have taken into account that the offender was on conditional liberty at the time as an aggravating factor. He was on a conditional release order for 12 months for the offence of drive whilst suspended and that is the order which is being called up before me today.

The offender’s subjective circumstances

30. The offender is now 25 years of age.

31. He has a criminal history, it contains only driving offences, namely six offences of drive whilst disqualified that all occurred in 2020. Having regard to his limited criminal history, I am satisfied he is entitled to some leniency on sentence. Importantly, there are no previous drug offences.

32. The offender gave evidence during the sentence proceedings. The following material was tendered on his behalf.

Exhibit 1: a letter from the offender 3 February 2022.

Exhibit 2: a letter from the offender’s mother Litiana Adkins 31 January 2022.

Exhibit 3: defence written submissions.

Exhibit 4: sentence statistics.

33. The offender’s background is outlined in the offender’s evidence, the letter prepared by his mother and the Sentencing Assessment Report.

34. The offender was born in Fiji where he lived until he was 14 years of age and was in year 8 at school. He did not know his biological father. He described in his evidence some violence and drinking in his family and extended family whilst he was growing up in Fiji. His mother met his stepfather at a resort in Fiji where she worked and he was staying. The offender’s family, himself, his mother and brother moved to Queensland when he was 14 years of age.

35. The offender gave evidence that his stepfather was a fruit and vegetable farmer. His mother still lives with him in Queensland. The offender described his stepfather as a good man and indicated there was no violence in the home.

36. Prior to coming to Australia the offender’s mother described the offender as a good and well behaved student who was doing “fine” academically. The offender gave evidence that before leaving Fiji he had never been in trouble with the police. In Australia he started year 10. The offender described in his evidence that the culture was different and he had difficulty understanding English. He said that he had trouble fitting in. He described himself as following the “wrong crowd”.

37. His mother described that he began getting into trouble at school and was expelled in year 11, ultimately leaving school in year 12. It is now clear to his mother that he did not cope with leaving Fiji and moving to Australia. His mother sent him back to Fiji when he was 17 years of age to stay in a boarding military school. The offender gave evidence that there was violence at the school, including physical discipline by teachers. The offender remained in Fiji for less than a year. After he finished school he lived with his grandparents who lived in a village. Sadly, both his grandparents passed away within a few months of each other. The offender then moved home to Australia.

38. After returning to Australia the offender started working on a farm in Queensland as a farm hand at Gatton. He was living by himself in rented accommodation. He then moved to Sydney to the Blacktown area. He was 19 or 20 years old. He was using drugs at this stage having commenced cannabis at 14 years of age. When he was working at Gatton he was using cannabis every day. After coming to Sydney he got a job in a warehouse as a factory hand.

His circumstances at the time of the offending

39. The offender had lost his fulltime position in the warehouse due to COVID-19. At some stage, the offender was working two to three days a week with his cousin who was repairing a house at Granville. The house had been used previously to grow cannabis. This was not enough income to pay for the offender’s living expenses. During that time he was introduced to the person who asked him to tend to the cannabis crop at Mangrove Mountain. He only knew that person by their first name. He was asked to water the plants. He was told that once the crop was harvested he was to be paid $50,000. He understood it would be two to three months before the crop would be harvested.

40. The following day after meeting the person connected to the crop at Mangrove Mountain he was driven from Parramatta to Mangrove Mountain and was shown how to water and fertilise the plants. He gave evidence that he had been looking after the crop for about two months before he was arrested in May 2021. He was staying at the property on average two nights a week. He had not received any payment before his arrest.

41. He told the Court that at the time he was struggling financially. He had a debt of $10,000. He was not getting shifts at his warehousing job and he described himself as “desperate for money”.

The offender’s current circumstances

42. The offender gave evidence that he has been working in custody in a painting group renovating pods. He is also a sweeper. He told the Court that he has abstained from the drugs whilst he has been in custody.

The offender’s evidence in relation to remorse

43. During his evidence the offender described himself as “taking the wrong path in life”. He is disgraced by his conduct. He has seen the effects of drugs whilst in custody and he does not want that to happen to anyone.

The offender’s future plans

44. The offender gave evidence that he intends to obtain a crane ticket. He will be supported by Mr Maralis who he met whilst working in warehousing. He will live with Mr Maralis at Rooty Hill. In cross-examination he said that whilst he has been in custody it had opened his eyes and he had stopped using drugs. He said that he was “never coming back”.

Further evidence from the offender’s mother

45. The offender’s mother outlined in her letter to the Court that she has had very limited contact with the offender in the eight months that he has been in custody as a consequence of the restrictions in correctional facilities because of COVID-19. She described that the offender is finding custody difficult in circumstances where he has limited ties in New South Wales. She outlined that the offender has expressed remorse to her for the offending and has spoken of his regret. She described that the offender has always been a caring and devoted person offering her support whenever she has needed it. She described the offending as out of character for him. She believes he is “ready to move on with his life”. It is clear to the Court that the offender’s mother remains very supportive of him.

The offender’s letter to the Court

46. In his letter to the Court the offender expressed his deep remorse and shame for his offending. Since being in custody he explained that he has learnt the effects of drugs on people’s lives. He accepts responsibility for his offending and understands the seriousness of it. He well understands how fortunate he is to have the ongoing love and support of his family.

47. The offender concludes his letter as follows, “I will use this experience to become a better person, learning from this and looking forward to the future, taking the right steps in life.”

Submissions of the parties

48. The Crown relied on written submissions as supplemented by brief oral submissions.

49. Mr Shukoor of Counsel also relied upon written submissions and further oral submissions. I have taken those submissions into account in determining the appropriate sentence.

50. Mr Shukoor submitted that the Court would make positive findings about the offender’s personal circumstances including that he does not have any significant criminal history, he is remorseful, unlikely to re-offend and has good prospects of rehabilitation. It was submitted the Court would find his involvement in the offending was opportunistic and he played a limited although important role. Should the Court impose a custodial sentence of two years or less it was submitted that an intensive correction order was within range. The Crown submitted that only a fulltime custodial sentence is appropriate in all the circumstances.

Remorse

51. Having regard to the evidence of the offender during the sentence proceedings, I am satisfied he is genuinely remorseful and has accepted full responsibility for his offending.

Prospects of rehabilitation

52. I am satisfied that the offender has excellent prospects of rehabilitation given his limited criminal history, his good prospects of employment and the support he has, not only from his family but also from Mr Maralis. I expect when the offender leaves custody there will be occasions in the future when life will get tough but instead of resorting to drugs or crime as a way forward I would encourage him to reach out to the people who know and love him. I am satisfied that it is highly unlikely that he will re-offend. It is clear he has learnt his lesson and I would not expect to see him before the Courts again.

The effect of the COVID-19 pandemic

53. I am satisfied that the current COVID-19 pandemic has had a very significant impact upon custodial conditions. It is clear to me that custody at the moment is extremely onerous. There are very regular lockdowns within correctional facilities. There is limited access to courses within correctional facilities and extremely limited access to audio visual link visits or phone visits. Having regard to the onerous conditions in custody, I do propose to moderate the otherwise appropriate sentence.

The Form 1 offences

54. In sentencing the offender I have taken into account the two Form 1 matters. I am satisfied that neither of those offences would have warranted a custodial sentence had I been sentencing for those matters separately, so I do not propose to notionally increase the sentence for the principal offence.

Determination

55. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act. In particular, I have had regard to the objective seriousness of the offending and the need for both general and specific deterrence.

56. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

57. I have had regard to the relevant maximum penalty, the offender’s subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

58. I am required to firstly determine the appropriate sentence and then consider how that sentence should be served.

59. I am satisfied that the appropriate starting term for the sentence is two years imprisonment, discounted by 25% for the plea of guilty, leaving a total term of 18 months imprisonment.

60. I have considered whether an intensive correction order is appropriate. I have taken into account s 66, Crimes (Sentencing Procedure) Act. S 66(1) makes community safety the paramount consideration. S 66(2) requires the Court to consider whether serving the sentence by way of fulltime imprisonment or by way of an intensive correction order is more likely to address the offender’s risk of re-offending. S 66(3) requires the Court to take into account s 3A the purposes of sentencing and any other general sentencing principles.

61. Whilst I am satisfied that an intensive correction order is more likely to address the offender’s risk of re-offending, having regard to the objective seriousness of the offence, I am satisfied that only a fulltime custodial sentence is appropriate to take into account s 3A, Crimes (Sentencing Procedure) Act and the purposes of sentencing.

Special circumstances

62. I am satisfied that special circumstances are established warranting a variation in the ratio between the non-parole period and the parole period having regard to the offender’s youth and that this is his first time in fulltime custody.

63. Mr Momoka, in relation to the offence of cultivate large commercial quantity of cannabis by enhanced indoor means, you are convicted.

64. Taking into account the two Form 1 offences:

1. I sentence you to a non-parole period of nine months to date from 27 May 2021 and expire on 26 February 2022 with a balance of parole of nine months to expire on 26 November 2022.

2. I direct your release to parole on 26 February 2022.

65. In relation to callup for the breach of the conditional release order, I direct that no action be taken on the breach.

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Decision last updated: 24 May 2022