R v Tinker

[2019] NSWDC 819

District Court

New South Wales

Medium Neutral Citation:	R v Tinker [2019] NSWDC 819
Hearing dates:	13 September 2019
Decision date:	27 September 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Special circumstances found –1st time in custody, need for supervised parole, any required treatment during BT etc. Indicative sentences: Count 1: 6 months’ imprisonment Count 2: 1 year imprisonment + NPP of 6 months Count 3: 10 months’ imprisonment + NPP 5 months Count 4: 11 months’ imprisonment + NPP 4 ½ months Count 5: 18 months’ imprisonment Count 6: 7 months’ imprisonment Count 7: 5 months’ imprisonment Count 8: 10 months’ imprisonment Count 10: 1 year 10 months’ imprisonment s166 matter: SEQ 5: 3 months’ imprisonment Aggregate sentence: Sentenced to a term of imprisonment for 3 years comprising of a NPP of 1 year and 6 months to commence on 20/6/19 and to expire on 19/12/20, and a balance of term of 1 year and 6 months to commence on 20/12/20 and to expire on 19/6/22. Count 9: S10A - convicted. No penalty imposed. SEQ 6: s10A – convicted. No penalty imposed. SEQ 2 & 8 withdrawn and dismissed.
Catchwords:	CRIMINAL – Sentence – trial by judge alone on 6 counts & guilty pleas to 4 counts –aggregate sentence - supply prohibited drug (cannabis leaf) – supply commercial & large commercial quantities THC – supply cannabis resin – cultivate prohibited plant – possess firearm(double barrelled shotgun) – possess prohibited firearm (paint ball gun) - dealing with proceeds of crime - s166 matters - not keep firearm safely – anomaly re penalties in Firearms Act 1996 as at November 2017 re possess paint ball gun charge and possess shotgun charge - discounts for pleas – organic ‘cannabis connoisseur & guru’ - substantial drug related enterprise - “Aladdin’s cave of prohibited drugs” – high risk of reoffending – subjective matters
Legislation Cited:	Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Category:	Sentence
Parties:	Regina Tinker, Simon
Representation:	Counsel: Mr P Lynch Mr A Wong Solicitors: Mr W Logan Mr I Vizintin
File Number(s):	2017/33687

Judgment

1. Simon Tinker appears for sentence in respect of a number of offences.  Those are a combination of offences in respect of which I found him guilty in a judge alone trial, the trial having commenced on 18 June 2019 and concluded with addresses on 20 June 2019.  My judgment and verdicts were delivered on 22 July 2019 and the sentence proceedings were heard on 13 September 2019, and adjourned part heard to today for delivery of the sentence.

2. The offender came before the court in relation to an indictment that contained ten counts.  He entered pleas of guilty to four counts, and the remaining six counts proceeded to trial.  In addition, he is to be sentenced for two further offences which are included on a s 166 certificate.  I will note that the matters that he is to be sentenced for are as follows:

3. Count 1 on the indictment: supplying a prohibited drug, being 67.2 grams of cannabis leaf, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.  The maximum penalty provided is ten years, and/or a fine of $220,000.  There is no relevant standard non‑parole period.

4. Count 2 on the indictment is a matter to which he pleaded guilty on the first day of trial. It is supply prohibited drug, not less than the commercial quantity, being 502.3 grams of THC, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.  The maximum term penalty is 20 years’ imprisonment, and/or a fine of $385,000.  There is a relevant standard non‑parole period in relation to that offence of ten years.

5. Count 3 on the indictment is, again, one to which he pleaded guilty, and it is manufacture a prohibited drug, not less than a large commercial quantity, 8,873.76 grams of tetrahydrocannabinol, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985.  The maximum penalty is life imprisonment, and/or a fine of $550,000, and there is also a relevant standard non‑parole period of 15 years.

6. Count 4 on the indictment, in respect of which he entered a plea of not guilty, was supply prohibited drug, not less than a large commercial quantity, being 8,873.76 grams of tetrahydrocannabinol, again, contrary to s 24(2) of the Drug Misuse and Trafficking Act, with the same maximum penalty and standard non‑parole period as referred to in respect of the offence constituted by Count 3.

7. Count 5 was another offence to which he pleaded not guilty, being supply prohibited drug, 2.4 kilograms of cannabis leaf, contrary to s 25(1) of the Drug Misuse and Trafficking Act.  The maximum penalty is ten years’ imprisonment, and/or a fine of $220,000, and there is no relevant standard non‑parole period.

8. Count 6 in respect of which he pleaded not guilty, being supply prohibited drug, 14.1 grams of cannabis resin, contrary to s 25(1) of the Drug Misuse and Trafficking Act.  The maximum penalty is 15 years’ imprisonment, and/or a fine of $220,000, and there is no relevant standard non‑parole period.

9. Count 7 was an offence of cultivate a prohibited plant, to wit, seven cannabis sativa plants, contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act. The maximum penalty is ten years’ imprisonment, and/or a fine of $220,000, and there is no relevant standard non‑parole period.

10. Count 8 was an offence of possession of a firearm, being a double‑barrelled shotgun, to which he entered a plea of guilty. That offence is contrary to s 7A(1) of the Firearms Act 1996.  The maximum penalty is five years’ imprisonment, and there is no relevant standard non‑parole period.

11. Count 9 was an offence of possession of a prohibited firearm, being a paint ball gun, in respect to which he entered a plea of guilty. The offence is contrary to s 7(1) of the Firearms Act 1996, and the maximum penalty is 14 years’ imprisonment, and there is a relevant standard non‑parole period of four years.

12. Count 10 is an offence of dealing with the proceeds of crime, in the sum of $49,830, contrary to s 193B(3) of the Crimes Act 1900.  The maximum term of imprisonment is ten years, and there is no relevant standard non‑parole period.  In respect of Count 10, the charge was that he dealt with that sum, being reckless as to whether it was the proceeds of crime.

13. In addition, subsequent to the verdicts, the Court has been asked to deal with two further offences contained on a s 166 certificate, those being:  Sequence 5, not keep firearm safely, shotgun; and Sequence 6, not keep firearm safely, paint ball gun.  The maximum penalty in relation to each of those offences is the same, that is, 20 years and/or 20 penalty units.

14. In delivering the verdicts, I set out a judgment on 22 July 2019, providing my reasons for the verdicts, the judgment itself being some 53 pages in length.  I do not intend to repeat, as part of this process, any significant part of the reasons that have already been set out.  These sentences should be interpreted in light of the content of the judgment and verdicts, which includes my observations in relation to the credibility of the then accused in his evidence.

15. I note that in respect of any discount for utility of the plea, that it was submitted by Mr Wong on behalf of the accused that the Court should allow a discount in relation to the matters on which he was arraigned at the commencement of the trial of 5% in respect of the matters which were defended at trial, and a discount in the range of 10 to 15% in respect of the matters in respect of which he entered a plea of guilty.  In short, he defended unsuccessfully Counts 1, 4, 5, 6, 7 and 10.  Pleas of guilty were entered in respect of Counts 2, 3, 8 and 9.

16. Mr Lynch on behalf of the Crown accepted in submissions that the discounts as referred to by Mr Wong were the appropriate ranges for consideration.  In my view, 5% is an appropriate discount in relation to the matters that proceeded as defended matters, due to the expeditious way in which a number of issues were dealt with by way of agreed facts, which significantly reduced the length of the trial, as I have already noted at the commencement of these reasons, as to its duration.

17. In respect of those matters to which he entered a plea of guilty at the beginning of the trial, the plea of guilty in each case was a very belated one, and in my view, an appropriate discount for the utility of those pleas is 10%.  I have accordingly applied a discount of 5% to each of the matters that proceeded as defended matters at trial, and a discount of 10% to each of the matters in respect of which there was a plea of guilty at the commencement of trial.

18. In relation to the two related charges on the s 166 certificate, although no submissions were made by either of the parties as to any particular discount, in my view, a 10% discount in each case would be appropriate, and I have applied that discount.  In my judgment and reasons for the verdicts, I set out the particular prohibited drugs and/or plants relevant to each of the charges.  There were, in effect, two occasions in relation to which the offender was charged.

19. The first occasion was in relation to Counts 1 and 2, which were the result of a vehicle stop on 25 May 2017, and prohibited drugs then found in his possession.  Counts 3 to 6 related to offences committed between 24 May 2017 and 4 November 2017 at Daceyville.  In each case, the charges were based not on actual supplies or agreements to supply, but on quantities located in his premises at Daceyville on 3 November 2017.  Counts 7, 8, 9 and 10 all related to items found in the premises on 3 November 2017. 

20. In short, the offender was living in premises with his on-and-off partner of 28 years, together with two young children, and located in the premises were a number of individual quantities of prohibited drugs, all being cannabis or cannabis derivatives, as well as cannabis plants, a paint ball gun and a shotgun.

21. It is relevant to refer to some of the other materials located during the course of the search and in respect of which evidence was placed before the Court, those being referred to in para 25 of my judgment, being:

• Scales

• 3 x vacuum sealing machines (2 x on kitchen bench and one under computer desk).

• Plastic bags for use in vacuum sealers.

• Rosin press in shed.

• Vacuum oven in shed.

• Bongs and pipes in laundry.

• 2 x boxes of vaping pens on veranda (containing hundreds of pens in commercial packaging).

• HomeBox brand grow tent on veranda in unassembled state, together with bags of potting mix.

• Money contained in vacuum sealed bags, being 4 x $10,000 in each vacuum sealed bag in the main bedroom, 1 x $6,000 in $50 notes, and 1 x $1,000 in $100 notes in vacuum sealed bags in the freezer.

• A plastic bag containing multiple empty capsules in filing cabinet.

• Bundle of small, empty, yellow envelopes with the logo of a bearded skateboard rider located in a shed, and one of the same envelopes located in the kitchen with baking type paper in it, with 0.52 grams of THC resin/oil on it.

22. Those being part of Count 4.  Additional material provided to the Court by way of intercepted telephone calls indicated that in the period preceding the search of his premises, the offender was engaged in supplying prohibited drugs to a number of persons, at least on some occasions, for financial reward.

23. In addition to the items that I have referred to, I also note the presence of the paint ball gun and an unloaded shotgun in the main bedroom, underneath the bed.  There were a significant number of individual items found in various locations throughout the premises, including the adjoining shed, where the rosin press and the vacuum oven and some other items were located.  It is reasonable to describe the house as having been littered with various varieties of cannabis derivatives as well as utensils, or items for the production, cultivation and use of cannabis and its derivatives.  Video obtained from the offender's phone recorded himself and an unknown male utilising his smoking apparatus in the laundry, to consume what can be inferred was cannabis in one form or other.

24. As referred to at p 23, and in relation to the electronically recorded interview on 3 November 2017, Exhibit 6, the accused portrayed himself as a cannabis connoisseur and guru, passionate about cannabis in various strains and forms, as long as they were organic, and an aficionado of various techniques of production and use.  As to his attitude to the use and production of cannabis and its derivatives, in his evidence at trial he quoted a quote generally attributed to Thomas Jefferson, "If a law is unjust, a man is not only right to disobey it, he is obligated to do so".  It is clear that that was the offender's attitude to what he had been doing.

25. It is necessary to refer to the objective seriousness of the individual offences, although in the circumstances of this matter, considering in particular those varieties and quantities of prohibited drug located at his premises, it is perhaps less important.  However, in relation to Count 1, 67.2 grams of leaf, I note that trafficable quantity is 300 grams, and 30 grams is a small quantity.  An indictable quantity is 1 kilogram.

26. The offender therefore had, during the vehicle stop at Kingsford on 25 May 2017, slightly more than twice the small quantity, and well less than the indictable quantity of 1 kilogram, and indeed, less than one third of the trafficable quantity.  That is a matter which, if it stood on its own as a single offence, would no doubt have been dealt with in the Local Court, but it came before this Court as a result of all of the materials, and relevant utensils and devices subsequently located.  I assess Count 1 as falling at the lower end of seriousness in respect of an offence such as this.

27. In respect of Count 2, being supply not less than a commercial quantity, being 502.33 grams of tetrahydrocannabinol, I note that it was not 502.33 grams of pure THC, but THC adulterated honey. The total amount of adulterated honey is caught by s 4 of the Drug Misuse and Trafficking Act, which provides:

"Admixture. 

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug".

28. There is no information as to what proportion of the 502.33 grams of adulterated honey was actually constituted by THC.  I note that a trafficable quantity is 3 grams, 1 gram is a small quantity, 5 grams is an indictable quantity, and 500 grams or more is a commercial quantity.  This was an adulterated quantity, in respect of which the offender is liable as an admixture, of just more than the commercial threshold.

29. I note that Schedule.1 of the Drug Misuse and Trafficking Act provides a number of exceptions to liability in relation to tetrahydrocannabinol in its alkyl homologs. While there was no evidence before the Court as to the proportion of THC, no defence was raised to suggest that the offender did not commit the offence because those exceptions I have just referred to would apply.  Accordingly, it must be accepted that his possession of 502.33 grams was not defensible, on the basis of those exceptions. 

30. In my view, it is relevant to give the offender the benefit of the doubt in terms of the THC quantity per mg/kg, and accept that it was at the lowest range which would have qualified for an offence and then in my view falling at the low end of the range of objective seriousness.

31. In relation to Count 3, being manufacture not less than a large commercial quantity, 8,873.76 grams of THC, and Count 4, supply the same quantity, I note that of the 8873.76 grams, a total of 8,615 grams was comprised by the contents of two saucepans located in the shed:  that is, one of 4,053 grams, and another of 4,562 grams.  The balance of the total amount is 258.76 grams, which was composed of a number of items contained variously in glass jars, plastic containers, glass containers, paper, capsules, and a number of small amounts found in the butter drawer of the fridge.

32. Count 3 and Count 4 each have available as the maximum penalty life imprisonment, and a significant standard non‑parole period of 15 years.  However, it is clear in my view, in relation to that which was accepted in the trial as being an admixture, in particular the 8,615 grams that I have referred to in the two saucepans, as being a combination of THC, coconut oil, beeswax and shea butter, in respect of which the offender said he was endeavouring to create a topical, that the contents of the saucepans were not designed to be consumed by inhalation, injection or oral consumption, and in those circumstances I accept, as the Crown accepted in relation to Mr Wong's submission on behalf of the offender, that they were clearly less than the midrange of objective seriousness, and in my view fall, for a commercial quantity, towards the lower end of the range, again giving the accused the benefit of the fact that there is no evidence before the Court as to the particular percentage or quantity of THC per kilogram.  That applies to most, if not all, of the other items relevant to Count 4, as set out at p 17 of my judgment.

33. As to Count 5, supply prohibited drug, being 2.4 kilograms of cannabis leaf, again I note that 300 grams is the trafficable quantity, 30 grams is a small quantity, 1 kilogram is an indictable quantity, and the next level of seriousness above the indictable quantity is a commercial quantity which is 25 kilograms.  The 2.4 kilograms of cannabis leaf is of course significantly more than the trafficable quantity, and 1.4 kilograms more than the indictable quantity, but significantly less than the next level of seriousness, 25 kilograms.  In respect of Count 5, I note that three vacuum sealed plastic packages were located in the main bedroom, each containing approximately 1 pound of cannabis leaf, and two vacuum sealed packages were located in the second drawer of the filing cabinet, one containing approximately 1 pound, and the other containing 111.8 grams.

34. The total of those five vacuum sealed packages in the bedroom and the second drawer of the filing cabinet was 1,470.8 grams, that is, more than 50% of the total quantity. In respect of the balance, it consisted of approximately 12 or 13 smaller packages of cannabis leaf, ranging from 0.3 grams to 213.8 grams, located in various parts of the premises, including the shed, the kitchen, the filing cabinet, above the vacuum oven in the shed, and also the bottom drawer of the desk in the study.

35. As to the objective seriousness in respect to Count 5, I am of the opinion that it falls below the midrange of objective seriousness for such an offence, although I regard it as a significant offence. 

36. In relation to Count 6, being the supply of 14.1 grams of cannabis resin, the trafficable quantity is 30 grams, 5 grams or less is a small quantity, and an indictable quantity is 90 grams or more.  The offender had accordingly less than half the trafficable quantity.  In my view, the offence falls towards the lower end of objective seriousness for such an offence.

37. In respect of Count 7, cultivate a prohibited plant, being seven cannabis sativa plants found located in an Esky in the kitchen.  A small quantity is five or less plants and an indictable quantity is 50 plants or more.  There were, accordingly, two plants more than a small quantity and significantly less than the indictable quantity.  Again, in my view, the offence falls towards the lower end of objective seriousness in respect of such an offence.

38. In respect of Count 8, being the possession of the double‑barrelled shotgun, the appearance of the shotgun from photographs - the weapon itself not being an exhibit - to my view appears to be neglected.  There was no evidence presented that it was capable of discharging a shotgun cartridge.  There was no evidence that any shotgun cartridge was located by the police during a search of the premises.

28. However, I note that the offender in his evidence conceded that that he in fact did have shotgun cartridges or ammunition for the shotgun.  There was no evidence of it having been used on any occasion.  In my view, considering the significant quantities of prohibited drug that the offender had in his premises, together with the substantial sum of cash money, a significant proportion of which was actually located in the same room as the shotgun, the offender had the shotgun at least for the purpose of being able to present it, should anyone knowing of his activities endeavour to commit a home invasion for the purpose of stealing his product, devices or funds.

29. In respect of his possession of the double barrelled shotgun, I am similarly prepared to accept that it falls towards the lower end of the range of objective seriousness for such possession.

30. As to Count 9, the possession of a prohibited firearm, being a paint ball gun, I note that as the Firearms Act of 1996 stood, at the time of his possession of the paint ball gun on 3 November 2017, that it fell within Schedule 1 of the listing of prohibited firearms. That list includes, inter alia, weapons such as machine guns, submachine guns, self‑loading rim fire rifles, self‑loading or pump action shotguns, lever action shotguns with a capacity of more than five rounds, a shotgun fitted, or designed to be fitted, with a drum magazine, firearms to which there is attached a silencer or device capable of muffling, reducing or stopping the noise. . Schedule 1 also included cannon, with a bore in excess of 10 gauge.

31. Paint ball guns were specifically referred to in para 13 of Schedule 1, which is as follows:

"A firearm capable of discharging, by any means,

(a) any irritant matter in liquid, powder, gas or chemical form, or

(b) any pyrotechnic flare or dye, or

(c) any article known as a "paint ball".

43. In my view, it is somewhat anomalous that as of 3 November 2017, possession of a paint ball gun was classified as possession of a prohibited firearm, contrary to s 7(1) the Firearms Act, which attracted a maximum penalty of 14 years with a standard non‑parole period of four years, when possession of a firearm, such as the double barrelled shotgun, was only contrary to s 7A(1) of the Firearms Act, which attracted a much less significant maximum penalty of five years and had no relevant standard non-parole period.

44. On any view of Schedule 1, as it applied on 3 November 2017, a paint ball gun must be the least significant weapon referred to. However, that is the relevant provision and the content of Schedule 1 as at 3 November 2017. Not too long after, perhaps because someone realised the anomaly, the legislation was changed, the only change to Schedule 1 being the repealing of para 13C, that is, the deletion of paint ball guns from the Schedule.

45. I note that the paint ball gun was located together with the shotgun under the bed, in my view, it was probably for exactly the same purpose as I have expressed in relation to the shotgun.  It would have at least potentially presented, unless closely inspected, as being a firearm, and acted as a deterrent.  I also note that from the photograph it appears that it did not have any appropriate attachment into which paint balls might be placed.  However, I am not familiar with paint ball guns, so I may be wrong, but in any event, I assess Count 9 as being at the ‑ if I can phrase it this way, the absolute bottom of any range of objective seriousness in relation to such an offence.

46. As to Count 10, recklessly dealing with the proceeds of crime, in the sum of $49,830, that particular section can cover significantly more substantial sums of money, and while $49,830 is not an insubstantial sum, it is significantly less than what might otherwise come within the terms of the section, and I assess the objective seriousness of Count 10 as being towards the bottom end of the range of objective seriousness.

47. As to the s 166 offence of not keep firearms safely, the shotgun, it being secreted and not loaded with ammunition, or there being any evidence of ammunition in the near vicinity, in my view falls similarly towards the bottom end of the range of objective seriousness, and in relation to the not keep firearm safely, being the paint ball gun, again, for the same reasons as expressed previously, at the absolute bottom of any range of objective seriousness.

48. I am however of the view that it was appropriate to take into account, in relation to each of the individual offences, concerning what was located on 3 November 2017 in his premises, and which constitutes a charge or part of a charge, that it was sensible to assess the objective seriousness of each of those offences, bearing in mind the overall circumstances of what was, in effect, an Aladdin's cave of various prohibited drugs, being cannabis derivatives, located on the one occasion, distributed in various locations, at the offender's premises.

49. I have endeavoured in what I have so far said to distinguish between the individual quantities, as relevant to the individual charges, as quantity is relevant to any sentence that might be imposed in respect of the individual charge. Quantity alone is of course not the sole determinant of an appropriate sentence, but in my view, in relation to this matter and particularly the materials that I have referred to, it was sensible to take into account the overall circumstances of what was clearly a drug related enterprise of a substantial nature, which was also evidenced by the matters I earlier referred to, in terms of other items, videos, and phone calls.

50. Turning to subjective matters, the offender was 46 years of age at the time and is now 48. While he gave evidence at trial, he did not give evidence on sentence in relation to subjective matters. There is the following:  his criminal history, which in respect of drug offences includes a number of offences dealt with at the Fairfield Local Court in June of 1994, being possession of prohibited drugs, self‑administer prohibited drugs, supply prohibited drug, possession of equipment. In relation to those matters, he received 52 hours community service for the possession of a prohibited drug, and in relation to the self‑administer, supply and possession, he was sentenced to the rising of the Court. There was also one other charge of goods in custody, which considering its nature was probably drug related, in respect of which he received also a 52 hours Community Service Order concurrent with the other order, and was fined in each case $1,000.  In my view, the fact that they were matters that were dealt with in the Local Court and dealt with in the way in which they were dealt with, they were clearly of a relatively minor nature.

51. In July of 2002, he was dealt with at Liverpool Local Court for an offence of possess prohibited drug, in respect of which he was fined $200.  On 16 January 2004, there were two offences of possess prohibited drug, and one of cultivate prohibited plant. In relation to the first possess prohibited drug, he received a s 9 bond of 18 months, with supervision and counselling.  In respect of the second offence, a $500 fine, and in respect of the cultivate prohibited plant, a sentence of 12 months imprisonment, suspended on entering a s 12 bond. He was not called up in relation to the bond or the suspended sentence. There was a further drug offence dealt with at the Downing Centre Local Court on 2 December 2003 of possess prohibited drug, in respect of which he was fined $500.

52. All of the drug related offences contained on his record, in my view, are of a relatively minor nature, as can be determined from the penalties imposed, and the fact that they were all dealt with in the Local Court.  He has a number of other offences in relation to driving motor vehicles, which in my view are not relevant to the current sentencing process. 

53. There was also an offence of break and enter with intent dealt with at the Liverpool Local Court on 17 March 1993, in respect to which he received a 100 hours Community Service Order.

54. I do not consider his past criminal history to be such as can be regarded as having any significant adverse effect in relation to this matter, other than to note, of course, that he has clearly had difficulties as a result of being detected with prohibited drugs in the past. In addition, before the Court is a report from Dr Dayalan, psychiatrist, dated 10 September 2019, and a series of letters being references from his oldest daughter, Jessica Pierce, dated 11 September 2019; Israel Garrido, dated 11 September 2019, being the fiancé of Jessica Pierce; Abigail Rose Tinker, being the offender's 14 year old daughter, undated; Kiera Tinker, being an 18 year old daughter.  Finally, there is a letter to the Court from the offender's parents, Alan and Petra Tinker.

55. I note in relation to each of his relatives, that is, his daughters and his parents, that they all hold him in high regard. They refer to him in such terms as being “adored”, “kind”, “generous”, “protective”, “intelligent” and “loving”, "The kindest and most generous man I've been able to have in my life", "a terrific father", "a nurturing grandfather", and from Abigail Rose Tinker "I could not have asked for a better father, growing up, he was the best loved role model towards me and my family" and from his 18 year old daughter, "My dad was an amazing role model".

56. I accept that his immediate family hold him in high regard. However, I note that considering the quantities of prohibited drug located throughout the premises, and the various pieces of equipment for manufacturing various derivatives, and utensils, I am unable to accept that anyone could see him as an appropriate role model. He clearly, knowingly and deliberately breached the law in such a fashion that all of his relatives must have been aware of his attitude and his conduct, and it would appear to be inevitable that the children must have been exposed to his attitudes. That, in my view, is anything but a good role model. I accept, however, that he will continue to enjoy the support of his family, although I doubt in the circumstances whether that will include discouragement from committing further offences relating, in particular, to cannabis and its derivatives in the future.

57. From the psychiatric report the following is available:  He has three children aged 28, 18 and 14. He has been in the relationship with his partner over the last 28 years, and I note that she was the lessee of the premises in which all of the drugs were found, and as she lived there with him at the time, she similarly must have been aware of his flagrant disregard for the law.

58. While he has been in custody since the conclusion of the trial and the return of the verdicts, he has had ongoing contact from all of his family and his partner.  He is said to have been the subject of sexual abuse at the age of five, and he relates later behavioural problems to that prior sexual abuse. He claimed to the psychiatrist that he used cannabis to calm himself down, and spoke at length to the psychiatrist about the benefits of cannabis for his mental health and physical wellbeing. He has no history of psychotic symptoms, panic attacks, or manic episodes, and he has apparently never been admitted to any inpatient psychiatric facilities.

59. He said that he was using daily at the time of the offending approximately two grams of cannabinoid oil, and to have been pleased that he had been able to assist a number of people with physical health issues by supplying cannabinoid oil to them, and I accept on the basis of the evidence at trial that he was in fact doing so.

60. However, I note that he claimed to the psychiatrist that a person who had been diagnosed with lung cancer had been cured of the cancer following treatment with the cannabinoid oil. Later in the report, the psychiatrist expressed the opinion that Mr Tinker appeared to have selectively researched the positive effects of cannabis and had convinced himself about its various therapeutic effects. He spoke to the psychiatrist, "… at length about the lies that had been spread about cannabis. He claimed that it had been made illegal for racist reasons, as cannabis had been predominantly sold by African people in the United States".

61. He is said to have no chronic physical health conditions, that he binge drank between the age of 19 and 21 years before cutting down on the use of alcohol, and/or started smoking cannabis at 15 years of age, and regularly using from 21 years of age. He has also experimented with MDMA, ecstasy and cocaine in his late 20s and early 30s, but denied use of those drugs in recent years.

62. Having been born in Wentworthville, his parents separated when he was four years of age, and he maintains a good relationship with them, as I have already referred to. He was the only child of the marriage.

63. The psychiatrist supported him as having suffered from PTSD, and unsurprisingly, states that his history indicates that he suffers from cannabis use disorder.  The report also contains the following sentence, "Mr Tinker regretted the impact of his offending behaviour on his family members, as it had resulted in incarceration".

64. I note that there is nothing in the psychiatric report which would indicate that the offender has expressed remorse or contrition in any way for his offending behaviour.  There is similarly, in relation to the references provided by his daughters and his daughter's fiancé, nothing to suggest that the offender has ever expressed remorse or contrition to them.  His parents' joint letter states, "Since his arrest he has expressed his deep regret of the stress, pain and hardship he has caused his family".

65. I have no difficulty in accepting the offender regrets the fact that he was detected committing these offences on the two separate occasions, and the consequences that have followed, including his present incarceration pending sentence, but it is clear that the offender has, in my view, no remorse or contrition in relation to this offending. All of these matters are relevant to the issue, in addition of the prospect of rehabilitation and reoffending.

66. In my view, considering the offender's history as evident from the material before the Court, and his perception of himself as a cannabis connoisseur and guru, passionate about cannabis in its various strains and forms, and an aficionado of the various techniques of production and use, in my view there is a high risk of the offender reoffending when released, particularly in view of his adoption of the quote attributed to Thomas Jefferson, "If a law is unjust, a man is not only right to disobey it, he is obligated to do so".

67. The offender is a person who demonstrated in his evidence not only a contempt for the law as it relates to cannabis, but perceives himself as having an obligation to disobey it. As I have previously indicated, in those circumstances there is a high prospect of the offender reoffending in the future, and no real prospect of rehabilitation.

68. I have taken all of those matters into account, including the particular discounts for the utility of the belated pleas, and the limited utility of the resolution of matters which shortened the length of the trial. In my view, in relation to this offender, specific deterrence is an important matter to take into account, and general deterrence is an important matter to take into account in relation to deterring others from adopting the same course as this offender.

69. I intend to proceed by way of an aggregate sentence. I am required to indicate in those circumstances the indicative sentence in respect of each count. I indicate that I have also taken into account where appropriate, in relation to the charges, where they could have been dealt with in the absence of the more serious charges in the Local Court, the limitation on the Local Court.

70. In respect of Count 1, the indicative sentence is six months imprisonment.

71. In respect of Count 2, the indicative sentence is one year, as that has a standard non‑parole period.

72. I would find special circumstances for the purposes of the indicative sentence, considering it would be the offender's first sentence, and I would, in providing the indicative non‑parole period, make a substantial reduction from the statutory relationship to provide a non‑parole period of six months: that is, 50% rather than 75% of the one year.

73. In relation to Count 3, the indicative sentence, also again taking into account the need to provide an indicative non‑parole period, the indicative sentence is ten months with a non‑parole period of five months.

74. In relation to Count 4, the indicative sentence is 11 months, with an indicative non‑parole period of four and a half months.

75. In respect of Count 5 the indicative sentence is one year and six months.

76. In relation to Count 6, the indicative sentence is seven months.

77. In relation to Count 7, the indicative sentence is five months.

78. In relation to Count 8, the indicative sentence is ten months.

79. In relation to Count 10, the indicative sentence is one year and ten months.

80. In relation to the s 166 matter of not keep firearm safely, being in respect of the shotgun, the indicative sentence is three months.

81. In relation to Count 9, being possession of the paint ball gun, I would give the offender the benefit of s 10A, that is, a conviction with no other penalty, and similarly, in relation to the s 166 matter of not keep firearm safely, being in respect of the paint ball gun the benefit of s 10A, a conviction with no other penalty.

82. In relation to the indicative sentences expressed, taking into account the overall circumstances and the need for some accumulation, and the fact that the sentence needs to reflect those overall circumstances as well as the individual sentences, allowing that there must be some concurrence, taking into account the principle of totality, the sentence is a non‑parole period of one year six months to date from 20 June 2019, when he entered custody. The offender will be eligible for parole on 19 December 2020; the balance of term is one year and six months, that is, expressed otherwise, a sentence of three years with a non‑parole period of one year, six months. The total sentence will expire on 19 June 2022.

83. The offender can reasonably expect to be released on or about 19 December 2020, but that is a matter for the authorities. I have allowed special circumstances as a result of this being his first time in custody, and what I perceive as the offender needing to have a more significant period with the Damocles’ sword of re-imprisonment, should he breach the conditions of his parole, in order to assist him in ceasing his criminal conduct, and, of course, allowing for any potential treatment that he might be required to participate in during that period.

84. I will also make the order requested pursuant to s 18(1), cash in the approximate sum of $49,830 found at 1 Solander Road, Daceyville, on 3 November 2017, is forfeited to the State, and also pursuant to s 18(1), the black iPhone (IMEI 353813085348943) seized from Simon Tinker on 3 November 2017, is forfeited to the State, and I give leave, pursuant to s 19(3)(a) for the property forfeited herein to be disposed of forthwith.  And further, pursuant to s 35, the items referred to in Schedule A are forfeited to the State and to be destroyed, that is the rosin press in the photograph of Schedule A, and the vacuum oven, also shown in the photograph in Schedule A.

**********

Decision last updated: 25 February 2020