R v Rennix

[2021] NSWDC 154

District Court

New South Wales

Medium Neutral Citation:

R v Rennix [2021] NSWDC 154

Hearing dates:

2/3/21

Date of orders:

2/3/21

Decision date:

02 March 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 3 years 2 months with a NPP of 1 years 7 months (2/3/21-1/10/22).

I find special circumstances.

The indicative sentences are:

Seq 4 Cultivate – 3 years.

Seq 5 Supply – 13 months.

A copy of the psychologist report of S Borenstein dated 12/1/21 is to be forwarded to Corrective Services and Justice Health.

Catchwords:

Crime – Sentence – Cultivate cannabis plants not less than commercial quantity – Supply cannabis leaf

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crime (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

NSW DPP – Crown
Matthew Rennix - Offender

Representation:

Mr N Angelovski for Crown
Mr G Beveridge for Offender

File Number(s):

2020/143916

Publication restriction:

None

sentence

1. Mr Matthew Rennix is before the Court for sentence in relation to two offences, one being of cultivating a prohibited plant being not less than the commercial quantity. That relates to 123 cannabis plants, that being the sequence 4, which is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, and carries a maximum penalty of 15 years imprisonment. The second offence is one of supplying a prohibited plant, namely about 81.6 grams of cannabis leaf, which is an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of ten years' imprisonment, and that is the sequence 5 offence. The maximum penalties, of course, are important guideposts in the sentencing exercise to which I have had regard.

2. The offender pleaded guilty at an early stage and he is entitled to a discount of 25% on account of that plea, which I have taken into account.

FACTS   

3. The facts of the offences are agreed and are as follows:

4. At the relevant time the offender lived at an address in Bruce Place, North Kellyville, in respect of which he had signed a lease on 2 August 2019. In March 2020, police commenced an investigation into the indoor cultivation of cannabis plants at that house. On 13 May 2020, police obtained a search warrant for the house. The next day, 14 May 2020, the search warrant was executed early in the morning and police forced entry into the house and found the offender together with another male. The facts are silent about any action or charge relating to that other male.

5. During the search, the police found a clear bag containing 36.9 grams of dried cannabis leaf in one of the bedrooms. Police also found a cardboard box in the kitchen that was addressed to a person interstate with a return address which said, "From Billie. 22 Bruce Place, Kellyville NSW 2155." A small bag containing 7.6 grams of cannabis was found inside that box, which was wrapped in foil and sealed with tape. Police also observed a large hanging scale in the kitchen.

6. During the search, the police found a partitioned wall in the garage that had been converted into a hydroponic grow room. Beyond that partition there were two separate rooms. The first room contained 44 cannabis plants in black pots. The second room contained 55 cannabis plants in black pots. Behind the 55 plants was a small seedling tray. Each room was fitted with heat lamps and an exhaust fan. In total, 123 cannabis sativa plants were found in the garage.

7. The facts indicate that the plants contained roots, serrated compound leaves, stipules and cystolith hairs, indicating that many of them were in a reasonably mature state, I conclude. The police also found 37.1 grams of dried cannabis leaf in a small tupperware container in a shed connected to the garage. At the commencement of the search, the contents of the garage were seized by police, which included the cannabis plants, 66 heat LED lights, six reflector lamps and four hydroponic light sets.

8. The offender was placed under arrest and cautioned. Whilst in police custody, he provided police with the PIN number to his phone, which when examined was found to contain several messages on an application called Telegram. The facts note that this is an encrypted application which deletes messages after a set amount of time. One of the police took some photographs of some messages found on the offender's phone. One of those messages had been sent on 13 May 2020 to a person named "Rob Boy Unit 6" and said as follows, "So, can have ready for you tomorrow but will be 3,400 as my mate wants 3,300 for it. Have not even seen it so not sure if bomb or not. Or I can get five of good Asian for 3K each can bring sample."

9. The phone also indicated that on 14 May 2020, that is the date that the search warrant was executed, the offender had received a message from somebody with the name Dani which said, "Hey bro, if you have much VAC seal, can you please bring a roll." Also on the phone was found a message which had been sent by the offender to somebody called Donald on 30 July 2019 which stated:

"Hey mate, I'll send 30 tomorrow can take five for free so people can taste then other 25 are 50 each to you should be able to flick for 100 150 each NP. Can also turn into vape weed cause 1g turns into 3ml and people pay 150 for 1.5ml of vap weed and there is 2-3 different strains. I.e. Different flavours."

10. Also, the facts record that the offender's fingerprints were found on 11 separate locations on the hydroponic lights to which I have made reference.

11. The offender was, after being arrested, conveyed to Riverstone Police Station, and explained certain rights after which he declined to participate in an interview with police. But in the course of declining to be interview he said to police, "All I'd like to say is that Will wasn't involved." And when asked by police, "Involved in what though?", the offender said, "The reason I'm in here, the cultivation." Those are the agreed facts on which he is to be sentenced.

OBJECTIVE SERIOUSNESS

12. I am, of course, required in sentencing the offender to have regard to the objective seriousness of the relevant offences. In this matter, the objective seriousness is marked firstly by the maximum penalties to which I have already referred. In addition, the Courts have stated for many years that drug manufacture and drug trafficking is a crime that calls for significant penalties. There is no hierarchy in sentences to be applied by reference to the type of drug involved, rather the Courts are required to have regard to the seriousness of the particular offence as indicated by guideposts such as the maximum penalties and as informed by an analysis of the role that was performed by the particular offender. The quantity of drug, of course, is also important, as is precisely where in the scale of quantities specified by parliament the offence falls, whether it be large commercial quantity or something less. But, of course, care must be taken not to attach undue weight to the quantity, as it is only one of a number of factors that I must take into account.

13. As I have said, a fundamental part of assessing the objective seriousness of these offences is that I form a view as to the offender's role. In other words, what he did. In this regard, the offender gave evidence today in which he claimed that he was cultivating the cannabis for the purposes of personal use, in that he had a practice of using it to create a concentrated form of oil which he claimed he would use on a daily basis. This is consistent with a version given by him to the psychologist, Mr Borenstein. Furthermore, he told the author of the Sentencing Assessment Report that, "The reason behind the amount he was growing was to create concentrated oils for personal use and not to be sold." The offender conceded in his evidence today, however, that there had been some occasions where he had sold cannabis to friends and had made perhaps $2,000 or a bit more from these supplies. It has been argued on his behalf that I should be satisfied that the offences arose out of personal use and not because of a motivation for profit. However, there are a number of difficulties with this submission:

1. 1. The number of plants, being 123, represents, in my view, a very significant quantity and one that is not consistent with personal use.

2. 2. No evidence has been placed before the Court of any finding of cannabis oil or systems for cannabis oil production having been located at the house.

3. 3. The agreed facts contain references to text messages on 30 July 2019 and 13 May 2020 that are consistent with drug dealing in exchange for money.

4. 4. There is the fact that the offender's phone included the use of an encrypted application known as Telegram which is capable of deleting messages after a set amount of time.

5. 5. There is the fact that dried cannabis product was found in three different locations in the house, with one quantity being found in a box addressed to a person interstate and with the offender's return address noted on the box.

6. 6. There is the contents of the Sentencing Assessment Report in which the author notes that the offender said that at the time of his index offences, he was unemployed and was having financial difficulties and chose to grow cannabis to make money and that he had also said that he had no other options of making money due to being unable to work as a result of a motorcycle accident occurring in 2019.

14. Having regard to all of the evidence, I am not able to accept the offender's claim that his offences were solely or principally engaged in for personal use. While I do accept that some of the crop was for the offender's own use, I am of the view that this was, in large part, a commercial enterprise carried out for profit. In effect, the offender was the principal in his own cannabis production enterprise.

15. Although I have mentioned the text messages referring to other drug dealings, the offender is not to be sentenced for those and I do not approach the evidence in that way. But the evidence of past transactions is relevant in demonstrating that the offences detected on the day of arrest were not isolated lapses in otherwise law-abiding behaviour.

16. The quantity of plants the subject of the sequence 4 offence was significant, being almost two and half times the commercial quantity of plants specified in the legislation for cases of enhanced indoor cultivation. The equipment found at the house indicates that this was a reasonably elaborate operation, involving the conversion of part of the house into a hot house with multiple lights and an exhaust fan. It was, in effect, a production line. In my opinion, the objective seriousness rises just into the mid-range for the sequence 4 offence.

17. As to the second offence, being a deemed supply of about 81 grams of cannabis, I accept that there is a degree of overlap between this offence and the sequence 4 offence given that this was presumably some of the product of the offender's cultivation efforts. However, it does represent a reasonably substantial quantity. I agree with the Crown's submission that this offence falls somewhat below the mid-range, although I do not regard it as being in the low range. It was not being argued by the Crown that there are any aggravating features in this case.

SUBJECTIVE MATTERS

18. Turning then to subjective matters, I note that the offender is now 36 years of age. This is not his first time before a court, although most of his appearances have been for driving and drink driving-type offences. He has one prior drug offence, committed in 2005 when he was only 20, which involved a possession offence, but he has no priors for drug cultivation or supply. His prior record is not such that it aggravates the offences before the Court, but it does mean that he is not entitled to the leniency that he might be extended if these had been his first offences.

19. The offender's personal background has been placed before the Court, in part by a psychological report of Mr Borenstein, the contents of which the offender affirmed in his evidence today. He reported a good family upbringing with no history of trauma, abuse, or domestic violence. After leaving school, in about year 10, he successfully completed an automotive mechanics apprenticeship and later established his own mobile mechanic business in which he was self-employed for about 18 months. After that he established a car detailing business which he said he later sold for about $70,000. Then he commenced an electrical apprenticeship but apparently discontinued that due to a motorcycle accident.

20. In November 2020, the offender admitted himself to a residential rehabilitation program which involved a complete detox and which he successfully completed after three months. The offender is also supported by a character reference from his friend, Mr Wise, who says that the offender has turned his life around in the last 18 months and has spoken about his regret for things getting out of control. His current employer, Mr Rogers, also supports him by means of a letter confirming that the offender works as a leading hand/supervisor in construction. Mr Rogers describes him as a dedicated employee who is respectful and hardworking and says that the offender sincerely regrets his involvement in drugs.

21. The psychological report of Mr Borenstein notes that the offender claimed to have been diagnosed by psychiatrist, Dr Malik, as being affected by adult ADHD and autism spectrum disorder. During the hearing I raised the fact that no independent evidence of any such diagnoses have been placed before me, to which at that stage counsel for the offender submitted it was a matter of weight. I note, however, that shortly after adjourning this morning, I was, with the consent of the Crown, provided in chambers with a photocopy of a medical discharge summary dated 3 October 2020. That document which has now been admitted into evidence and which is apparently signed by the consultant psychiatrist, Dr Malik, describes a primary diagnosis in the offender of substance dependence and an additional diagnosis of ADHD and autism. As this document was not contested by the Crown, I will proceed on the basis of those diagnoses.

22. The psychological report also refers to a number of incidents in which the offender has suffered some impacts involving the head. The submissions by counsel for the offender argued in part that the offender was at the time of his offences affected by acquired brain injuries. As I indicated during the course of the sentence hearing, however, no evidence has been placed before the Court from a relevantly qualified medical expert to substantiate that the offender is or was affected by any such acquired brain injury. The Sentencing Assessment Report placed before the Court notes comments by the offender's sister about his suffering some mental health issues in about 2015 involving depressive symptoms. While I accept, based on the sister's assertion and the diagnoses by Dr Malik, that the offender has struggled and perhaps continues to struggle with mental issues including ADHD and some degree of autism, I am not satisfied that those conditions explain his offending or mitigate its seriousness or his moral culpability to a significant degree.

23. I have had the opportunity of observing the offender give evidence. On my observation he presented as a reasonably intelligent man and his history of work and study support the conclusion that he is a resourceful and, when he puts his mind to it, hardworking and successful man. This conclusion is supported, in my view, not only by his history of successful study and legitimate work, but also by the considerable amount of planning and physical activity and expertise involved in setting up and running the hydroponic set up at his house.

24. I do not consider that there is much in the way of genuine remorse in this case. It is very positive, however, that the offender completed a three month residential rehabilitation program in January 2021, which included a complete detoxification. The fact that he voluntarily entered that program and completed it provides some hope towards his future rehabilitation. However, his long-term drug and alcohol and mental problems and the fact that the Sentencing Assessment Report assesses him as a medium risk of reoffending leads me to conclude that his future prospects are guarded.

25. In determining the appropriate sentence, I have had regard to the principles of sentencing set out in s 3A of the Crime (Sentencing Procedure) Act 1999. I am satisfied that the s 5 threshold in that Act is crossed and that, having considered all possible alternatives, no penalty other than full time imprisonment is appropriate in this case. In reaching that conclusion I have had regard to statistics for these offences, as well as a range of other sentencing decisions including those referred to by counsel for the offender.

26. As I have found that the cannabis leaf found at the property was the product of the offender's own cultivation, it is appropriate in my view to treat the sequence 5 offence as being largely part of a single transaction involving growing, harvesting and then preparing for sale or use the cannabis product. In those circumstances, while I am required to set an individual penalty for each offence, the sentence to be served, should, in my opinion, be substantially although not completely concurrent.

27. I intend to impose an aggregate sentence. I intend to find special circumstances for varying the ratio of non-parole period to head sentence. I make that finding based upon this being the first period in custody for the offender, plus the evidence that he has certain psychological conditions which, in my view, will make his period in custody more difficult and also the need for an extensive period of supervision once he is considered for released on parole.

28. I am required to nominate indicative sentences; these are not the sentences that I will impose. I will indicate the actual sentence in just a moment. The indicate sentences for the two offences are as follows. For the sequence 4 offence of cultivation, after the 25% discount, a head sentence of three years' imprisonment. For the sequence 5 offence, after a 25% discount, a term of imprisonment of 13 months' imprisonment.

29. Mr Rennix, if you could just stand up and I will explain to you the sentence. I impose an aggregate sentence of three years, two months, and a non-parole period of one year, seven months. Those will date from today, 2 March 2021. The head sentence will expire on 1 May 2024 and the non-parole period on 1 October 2022.

30. I direct that a copy of the psychological report of Mr Borenstein be sent to Corrective Services and to Justice Health.

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Decision last updated: 03 May 2021