R v Stachiw

[2023] NSWDC 463

District Court

New South Wales

Medium Neutral Citation:

R v STACHIW [2023] NSWDC 463

Hearing dates:

27 October 2023

Date of orders:

1 November 2023

Decision date:

01 November 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [40 - 42]

Catchwords:

CRIME — Drug offences — Possess prohibited drug

CRIME — Drug offences — Enhanced indoor cultivate cannabis for commercial purpose

CRIME — Drug offences — Supply prohibited drug

CRIME — Drug offences — Manufacture prohibited drug

Legislation Cited:

Drugs Misuse and Trafficking Act 1985 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Rogers (a pseudonym) v The Secretary Department of Family and Community Services NSW [2019] NSWDC 194

Stanley v DPP (NSW) [2023] HCA 3

Muldrock (2011) 244 CLR 120

El Kheir v R [2019] NSWCCA

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Category:

Sentence

Parties:

Rex (The Crown)
Emma Stachiw (The Offender)

Representation:

Smart counsel for Stachiw
Boenisch solicitor for The Director of the Office of Public Prosecutions

File Number(s):

2021/200616

Publication restriction:

N/A

JUDGMENT

Introduction

1. The offender appears for sentence in respect of one charge under section 24(2) of the Drugs Misuse and Trafficking Act (“DMTA”) that she manufactured an amount of a prohibited drug not less than the commercial quantity applicable to the prohibited drug. The drug in question is cannabis oil and the amount in question was an amount that in the agreed facts is referred to as exceeding the large commercial quantity.

2. In addition to that there are six matters to be taken into account by way of the Form 1 procedure. Those matters are set out in the below table which includes reference to the particulars of the matter. The section references are all to the DMTA.

F1s	Charge and maximum penalty	Particulars
s10	Possession of 254g cannabis (300g is deemed supply); maximum penalty 2 years imprisonment	The drugs were found on the search of the offender’s house on 31 March 2021
s10	Possession of 2.6g cannabis seeds; maximum penalty is 2 years imprisonment	The seeds were found in the offender’s bedroom cupboard on the search of her house on 31 March 2021
23(1)	Cultivate by enhanced indoor means; 14 cannabis plants; maximum penalty of 10 years imprisonment	Located growing in a tent in a shed at the back of the offender’s property on the search on 31 March 2021
25(1)	Supply small quantity of cannabis, 182g of cannabis; maximum penalty of 10 years imprisonment	Supplied this between December 2019 and 12 November 2020
23(1)(a)	Cultivate small quantity; 1 cannabis plant; maximum penalty of 10 years imprisonment	1 plant in a pot outside the house leading to carport; found on search on 31.3.21
25(1)	Supply indictable; 55g tetrahydrocannabinol; the maximum penalty is 15 years imprisonment as the drug is not cannabis plant or leaf	Found on search; throughout house

3. The Crown sentence summary cover sheet states that the maximum sentence for the principal offence is life imprisonment with a standard non-parole period of 15 years. It was submitted on behalf of the offender that because the prohibited drug is cannabis oil section 33(3)(b) applies. That is to say that the offence “relates” to cannabis plant or cannabis leaf (because cannabis oil comes from the leaf) so that the maximum sentence would be 20 years imprisonment and by similar reasoning, item 17 of the table at Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act (CSPA) would not apply. The problem with that submission is that schedule 1 of the DMTA specifically refers to cannabis oil. The same table refers to cannabis plant and cannabis leaf. The table sets different quantities for each of those three identified prohibited drugs as to what constitutes a trafficable quantity, small quantity, indictable quantity, commercial quantity or large commercial quantity. Section 3 of the DMTA provides a definition of cannabis leaf, cannabis oil, and cannabis plant. Cannabis leaf is defined to expressly not include cannabis oil.

4. The argument that was sought to be put was that the offence relates to cannabis leaf because the oil itself comes from cannabis leaf and therefore the offence relates to cannabis leaf. The above provisions of the legislation make it plain that cannabis oil is dealt with differently to cannabis leaf or cannabis plant and the express exclusion or distinction drawn in both the table in the CSPA or the schedule to the DMTA of cannabis leaf and cannabis plant, but not cannabis oil from other prohibited drugs has the effect that cannabis oil is not treated any differently to the other range of prohibited drugs, other than of course cannabis plant and cannabis leaf.

5. That this is the better interpretation is supported by the fact that the penalty section itself, section 33 is in the terms of “where the offence relates to cannabis plant or cannabis leaf” (underlining added); that is the offence is one involving cannabis plant or cannabis leaf and the words “relates to” are not a reference to the drug involved relating to the cannabis plant, but a reference to the offence relating to cannabis plant or leaf.

6. Therefore the maximum penalty for this offence is life imprisonment and it does have a standard non-parole period of 15 years. I take both the maximum penalty and the standard non-parole period into account as being legislative guideposts indicating the legislature’s view of the seriousness of this offending so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period, I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

7. In regards to the Form 1 procedure, it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this, greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

8. The offender was not on conditional liberty at the time of this offending.

The facts

9. Without minimising the seriousness of this offending, the facts can be very shortly stated. Police executed a search warrant on the home of the offender on 31 March 2021. That search found a range of drugs. Included amongst the drugs was the drug Harmine in a large commercial quantity. Later in July 2021, the offender was charged with the deemed supply of that drug along with the charges she is being sentenced for today. The offender admitted to all offences alleged other than the Harmine charge, which proceeded to trial and at which a not guilty verdict was returned by a jury in June 2023.

10. In respect of the principal offence the search located a number of bottles and jars containing oil and green butter which were found to contain an amount of cannabis oil. The weight of the contents of those jars exceeded 2 kg. It is relevant to note that it is an agreed fact that the purity of those substances in terms of their cannabis oil content is 5%. This oil and butter was manufactured by the offender.

11. The offender admitted to selling a product called Greenwytch containing cannabis oil at $75 per 50 mL and $150 for 100 mL. It is an agreed fact that between 19 November 2019 to 27 March 2021 the offender supplied more than 2 kg of this drug, with a purity I infer of 5%. As this was supplied, it is in addition to the amount the subject of the principal charge, which was found on the search. Assuming that 2kg equates to 2000 mL, this equates over the approximate 16 month period to 125 g per month, so that the offender’s revenue from these sales was approximately a little less $200 per month. The Form 1 supply charge of 182g yielded revenue of $1310 over an 11 month period, so about $120 monthly. The drug operations of the offender are small to the point of negligible, at least so far as can be judged by revenue.

12. In terms of objective seriousness, there is no doubt that the offender is solely responsible for the manufacture of the prohibited drug. She is not some part of a chain of people leading to this result. The manufacturing operation is small. It involves a prohibited drug but as noted in the submissions for the offender the purity of the drug is an objective fact that affects the seriousness of the offence; see El Kheir v R [2019] NSWCCA. Quantity is not necessarily a determinative matter but is a relevant consideration. In this case, for the purposes of this sentence, the quantity must be taken to be an amount just over 2 kg to satisfy the large commercial quantity element of the offence and nothing more; the agreed fact does not allow for any adverse finding beyond this amount. The quantity involved is therefore the bare minimum that satisfies the element of the offence. At 5% purity, the amount of cannabis oil within the 2kg found is 100g, and whilst it could be argued that approach is somewhat artificial, places the amount far closer to the indictable amount (5g) than to the commercial quantity (500g).

13. The principal offence for these reasons is assessed in the low range of objective seriousness, a conclusion supported by the small nature of the offender's operation.

14. The Form 1 matters need to be taken into account in assessing the appropriate sentence. The brief particulars given in the above table relevantly set out the facts; in short these drugs were found when the search was carried out on 31 March 2021 in the home of the offender. Notably there is a good argument for each of those matters when looked at individually that they would not cross the section 5 threshold. The quantities are very modest. What they show really is the extent to which the offender is prepared to disregard laws relating to cannabis. It shows that as well as producing cannabis oil she is growing her own cannabis plants albeit on a very modest scale and is supplying cannabis in different forms to others as well as possessing it herself separate from the supply. These matters will be taken into account when determining the sentence for the principal offence.

Subjective case

15. The offender has no criminal record.

16. The offender is entitled to a 25% discount on her sentence by reason of her early plea of guilty. In addition to her plea, she made frank and full admissions when interviewed by police.

17. A sentencing assessment report was prepared dated 21 August 2023. The offender is a single mother with three children now aged 19, 17 and 16 with the youngest two still living with her. She is actively involved in a prosocial community and appears well supported by its members. She is in employment. She described the offending as “hard to see as illegal” though the report states that on reflection she felt naïve to think her behaviour was okay and was regretful in that regard.

18. She claimed her motivation was to help patients rather than being financially motivated. The report expresses some misgivings about this however given the revenue referred to above I accept the offender in this regard.

19. Part of her motivation was to provide a better product than what patients would obtain “from the streets” by which she meant a less dangerous and more effective product. By effective she refers to being of medical assistance.

20. She was willing for intervention and willing to undertake community service work.

21. She was assessed as a low risk of reoffending. She was assessed as suitable to undertake community service work.

22. The offender read an affidavit affirmed by her on her sentencing hearing which was not the subject of cross examination or any other challenge. Rather the Crown relied on its contents to show that even now the offender has no remorse for her offending but rather sees herself as some kind of Robin Hood figure defying the authorities for the benefit of the unfortunate.

23. In her affidavit, the offender outlines that she is a fully qualified naturopathic practitioner receiving her qualification in 2017. She has a home dispensary with a range of tinctures and herbs. She has worked in a compounding pharmacy where she was trained in, amongst other things, compounding nutritional supplements. She worked with patients undergoing bowel surgery and colonoscopy. She worked at a medical centre. She encountered people with severe health conditions and chronic pain and was often asked about medicinal cannabis and whether it would assist them.

24. It is at paragraph 11 that the offender outlines how she committed the offences at a time when it was difficult to obtain affordable medicinal cannabis. She obtained seed stock and then grew cannabis to make the cannabis oil products. It was a small service which as outlined above is something I accept. She sets out the research that she undertook. She identifies the seed stock she chose which had a THC strength of 5%.

25. She provided her patients with educational material. She sets out her understanding of the effect of cannabis. She talks of having developed a rubbing butter to assist patients.

26. She says that she has never been informed of any client of hers being harmed in any way and there is no evidence to the contrary.

27. She notes that the time since her property was searched, which was March 2021 until now, has been very stressful with the fear of a term of imprisonment. That period also includes her trial in respect of the Harmine.

28. She concludes by saying she is no longer willing to take the risk of offending and says she will not reoffend as it is far less stressful to simply refer clients to licensed medical practitioners qualified to prescribe medicinal cannabis.

29. The submission of the Crown that this affidavit reflects a lack of remorse is made out to some extent. The affidavit conveys a terrific sense of justification for the conduct rather than a frank acknowledgement of wrongdoing. Yet at the same time the offender does acknowledge her wrongdoing and on oath states she will not reoffend. She plainly holds certain views about the benefits of cannabis oil which are at odds with the legal prohibition on her manufacturing and supplying them. It is not illegal to hold a view different to that which is legislated; what is prohibited is to engage in conduct which contravenes that legislation. I accept the assertion of the offender that she will not reoffend again. I also find that she has acted in a way which she knew she was not entitled to because she was not qualified to.

30. The offender relied on no less than 13 testimonials from a range of people, ranging from those that she had worked with, people she knows, and people she has treated. Uniformly they speak highly of her passion for health and well-being and commendable personal attributes. Based on these testimonials I accept the offender to be passionate about health and well-being, who goes about her business with professionalism, who seeks to help people. It has been in pursuit of aiding people that she has become involved with the use of cannabis products as medical treatment.

31. The evidence also reveals that the offender was involved in a motor vehicle accident and suffered significant injuries and has shown fortitude, courage and determination in overcoming the effects of that accident.

Determination

32. The submissions of the Crown accept that the objective seriousness of the offending is below the mid range. The Crown plainly does not submit that the offending is as low in objective seriousness as I have assessed it above. The Crown argues for a custodial sentence and further argues that section 68 of the CSPA would prohibit the imposition of an ICO. The Crown relies on statistics to support that view. The problem with the reliance on statistics is twofold. Firstly, as is commonly recognised they must be viewed very guardedly due to the facts behind those statistics not being known, so that it is also not known how they compare to the present facts. Secondly, that need for caution is well demonstrated by looking at the facts of the present case. It could not seriously be suggested that the manufacture of 2 kg of methylamphetamine of say 70% purity to fuel the addiction of methylamphetamine users who in turn are very likely to engage in antisocial behaviour is to be considered on a par with the manufacture of 2 kg of cannabis oil of 5% purity with a street value it would seem of $3000, to be used by people who are suffering pain and with no evidence of it causing any harm.

33. One criticism of that view may be that there should not be a distinction drawn between different types of drugs, for the legislation makes no such distinction. That is not what the above is doing. Rather it is a reflection of the reasoning of the Court of Criminal Appeal referred to above from El Kheir and it is relevant in considering the objective seriousness of a matter that the manufacture of prohibited drugs of lesser purity is less objectively serious than the manufacture of a drug of greater purity. This is because the harm to the community and the potential financial gain are less the less pure the drug. Put another way if the THC content of the drugs manufactured by the offender were greater then so too would its objective seriousness.

34. Put yet another way the criminality involved in this matter by reason of the matter just discussed, is with one qualification quite minor. That qualification is that there is about the offending a flagrant disregard for the laws which prohibited the manufacture of the drug that was manufactured. The offender has misguidedly engrossed herself in a range of ways in conduct which she knew was illegal and for which she knew she was not qualified. The use of prohibited drugs including cannabis oil by those who consider it is of assistance can lead to catastrophic results as is demonstrated by the facts of Rogers (a pseudonym) v The Secretary Department of Family and Community Services NSW [2019] NSWDC 194. The people involved in the use of cannabis oil in that case were of an entirely different character to the offender in the present case but it serves to demonstrate just why there are laws prohibiting the unregulated manufacture and supply of prohibited substances.

35. One finding that emerges from the above is that the objective seriousness of this offending which has been found to be significantly low informs the extent of the sentence to be imposed bearing in mind the proportionality principle. That is also important in this case given the six matters on the Form 1 which whilst they may add to the sentence cannot extend it beyond the range appropriate for the objective seriousness and criminality of the matter.

36. I accept the range of mitigating factors relied on by the offender, namely:

1. There is no evidence of anybody being harmed by her conduct;

2. The offender is a person of good character that is tempered somewhat by the fact that she was engaged over some period in this illegal conduct. At the time of the offending, she was 41 years of age and had no criminal record. She is, apart from this offending, a responsible member of the community who is pro social, working, well regarded by her community and raising her children as a single mother.

3. She has been under significant stress for a lengthy period now stretching to some 2 ½ years while the criminal justice system has worked its way through these matters;

1. Her prospects of rehabilitation on the evidence before me are good;

2. I accept that her chances of reoffending are very low.

37. As to remorse I accept that expressions of remorse have been made however consider her regret is not so much a recognition of her wrongdoing but of the unpleasantness of the consequences that have followed. I take this into account in determining the ultimate sentence.

38. I do not accept the submission that the planning involved here is outside that contemplated by the legislation; this was considered and planned conduct of the very type contemplated by the legislation.

39. The ultimate submission for the offender was that the section 5 threshold “may” be crossed in which case there should be the imposition of intensive correction order though the submission seems to be based on the misconception that a sentence of no more than three years would not engage the provisions of section 68 and the prohibition of an ICO. As there is only one offence being sentenced here and with the six form one matters to be taken into account in relation to that principal offence section 68 prohibits an ICO if the sentence imposed exceeds two years.

40. In my view despite the obvious low-level criminality of the offending and despite the well-intentioned but misguided motivations of the offender there is such a total disregard for the prohibition on her conduct that the section 5 threshold is crossed.

41. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offences

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

7. To recognise the harm done to the victim of the crime and the community

42. In this case, it is the purposes of deterrence, denunciation protection of the community and rehabilitation that require emphasis. At the same time the sentence needs to be proportional.

43. The maximum sentence for the offence is life imprisonment. For the reasons discussed above this case is far removed from the type of case for which severe sentences are reserved. In my view taking into account the Form 1 matters there should be a term of imprisonment before the 25% discount of two years so that after the discount the term is 18 months.

44. The question then is whether or not to impose an intensive correction order. Section 66(1) CSPA provides that the paramount consideration is community safety. By section 66(2) the court is to assess whether the making of the ICO is more likely to address the risk of reoffending than if a full time custodial sentence was imposed. The view I take in this matter is that the likelihood of the offender reoffending as things stand is very low. The most likely situation is that the likelihood of her reoffending will not be impacted as to whether it was a full-time period of custody or an ICO.

45. As was recognised in Stanley [2023] HCA 3, the section 66(2) assessment is not determinative. I would add however that the likelihood would probably be that a term of imprisonment could possibly only make things worse rather than better by engendering a sense of grievance at the inflexibility of the system that might in some ways in fact be understandable. There is also the prospect of becoming exposed to antisocial elements in custody, in contrast to the pro-social elements the offender is exposed to in the community. By section 66(3) the court is to then assess the other purposes of sentencing set out in section 3A. In this case what is required to be emphasised is denunciation, deterrence, protection of the community and rehabilitation. In my view each of those purposes of sentencing are well met by the imposition of an ICO. Overwhelmingly the consideration of community safety is well met by that result.

Orders

46. Of the offence under section 24(2) the offender is convicted.

47. The offender is sentenced to a term of imprisonment of 18 months to date from 1 November 2023 and expiring on 30 April 2025.

48. That term of imprisonment is to be served by way of the imposition of an intensive correction order to date from 1 November 2023 and expiring on 30 April 2025 and being subject to the following conditions:

1. That the offender commit no offence;

2. That the offender submit to the supervision of the office of community corrections and for that purpose I direct that she attended at the Coffs Harbour office of community corrections by no later than 8 November 2023;

3. That the offender carry out 150 hours of community service work.

**********

Decision last updated: 01 November 2023