R v Newman

[2019] NSWDC 551

District Court

New South Wales

Medium Neutral Citation:	R v Newman [2019] NSWDC 551
Hearing dates:	13 March 2019
Date of orders:	13 March 2019
Decision date:	13 March 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Sentenced to imprisonment for 9 months to be served by means of an Intensive Corrections Order. Additional conditions that the offender continue to undertake drug and alcohol treatment and that he perform 100 hours of Community Service Work.
Catchwords:	CRIMINAL LAW - Sentence – Form 1 – Cultivation of a prohibited plant – Participation in a criminal group - Cannabis
Legislation Cited:	Drug Misuse and Trafficking Act
Category:	Sentence
Parties:	The Crown Andrew Bruce Newman
Representation:	Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender
File Number(s):	2018/104950

Judgment

1. HIS HONOUR: Andrew Bruce Newman pleads guilty in relation to the cultivation of a prohibited plant being cannabis in breach of s 23(1)(a) of the Drug Misuse and Trafficking Act. The maximum penalty for that matter is ten years imprisonment and or a fine of 2000 penalty units. Additionally the parties asked me to take into account Mr Newman’s acknowledgement of his participation in a criminal group for the purposes of committing a criminal act being cultivation of a prohibited plant in breach of s 93T(1). The parties engaged in a disputed facts hearing and I was ultimately not satisfied beyond reasonable doubt about Mr Newman’s participation in three other plots involved in seemingly the one operation and similarly his participation in the criminal group is circumscribed by that finding; across two locations he was involved in the cultivation of 77 plants. I am able to take into account that the plants were significantly advanced and would have resulted in the cultivation of a not insignificant amount of cannabis if and when harvested. I accept on the basis of the limited material capturing his involvement extrinsically and his early admissions that he was involved in the cultivation toward the lower end of the criminal hierarchy being somebody who watered the plants but did not have any involvement in the planning or construction of the relevant sites.

2. The two sites themselves showed a significant level of sophistication in terms of the water collection mechanisms and the protection of the plants both from intruders and native fauna. Against the backdrop of the plots being a relatively sophisticated operation by having regard to the total number of plants, I accept that Mr Newman’s involvement on the material before me was significantly less than Mr Jones who has yet to be tried in relation to the matter.

3. Mr Fisher entered a plea of guilty to participation in a criminal group in full satisfaction of his involvement and I accept from Ms Pinkerton that Mr Trevor Perry was apparently dealt with earlier this month for unrelated offences. The objective seriousness of Mr Newman’s offending was toward the lower end of the range but is not in the low range but somewhere about the boundary between the mid-range and the low range given my finding about his limited role. I accept that he undertook this matter for financial reward; that is to receive cannabis so that he did not have to spend his own money in enabling his not insignificant addiction to cannabis at the time. He gave evidence before me, which I accept, that at the relevant time he was smoking about $90 worth of cannabis every one and a half weeks and he has managed to reduce that to about $30 every week and a half recently.

4. He has a record that denies him leniency. Because the entries are of some age and a discrete type of offending they do not in any way aggravate the objective seriousness of the offending. The offender presents some material before the Court from Dr Farina at the Local Health Service making it clear that he has had and continues to undertake ongoing psychological assessment. He gave evidence before me today which I accept that he considers his father a significant source of support. His father and his mother were of about five per cent of his associates that did not smoke cannabis when he was a younger person. I accept his evidence that he is endeavouring to develop a more pro‑social lifestyle and there he has increasing prospects of at least part time employment.

5. Dr Farina’s report supports his evidence that he finds assisting his father with his mother’s debilitating levels of dementia as being something that encourages him toward making good his rehabilitation. The parties join issue as to whether the s 5 threshold has been crossed and Ms Pinkerton says that the number of plants and the sophistication of the operation even on my determination means that the s 5 threshold has been crossed whereas Mr Kwan says that it is within the Court’s sentencing discretion to deal with the matter by way of a Community Corrections Order. But for the matter on the Form 1, it might be that the matter could just avoid the s 5 threshold but considering that matter and dealing with that matter in a principled fashion I am ultimately persuaded that the s 5 threshold has been crossed. It is common ground between the parties that Mr Newman pleaded guilty at an early stage and he is entitled to a full utilitarian discount. Sometimes it will the case that a utilitarian discount can be undercut by a party challenging the facts and if unsuccessful in that regard that may have diluted the utilitarian benefit available to him but in circumstances where he prevailed in that argument, I propose to deal with the matter by way of a full utilitarian discount.

6. Stand up Mr Newman. You are convicted. I take into account the matter on the Form 1. You are sentenced to a term of imprisonment of nine months to commence on 13 March 2019 and expiring on 12 December 2019 to be served by means of an ICO.. There will be the standard conditions together with two additional conditions, one that you continue to undertake drug and alcohol treatment with Dr Farina of the Illawarra Local Health Service and second that you undertake 100 hours of Community Service Work and for that purpose you are to report to the Nowra Community Corrections Office within seven days. You will need to sign that order. You need to understand that even though it is expressed as being an Intensive Corrections Order that is an order of imprisonment to be served in that fashion. If there was a breach of the order either by you committing another offence or by not complying with the other conditions that is a matter that does not come back to Court and it is dealt with by way of the State Parole Authority Intervention and if you were in breach you would likely be locked up for that period of time or some of that time.

7. Given that I do not have a sentencing assessment report I form the view that there is enough material before me to satisfy myself that it is appropriate that he is eligible for Community Service and having read some many reports from the local service I am satisfied that work would be available.

**********

Decision last updated: 10 October 2019