R v Trewin

[2018] ACTSC 256

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Trewin

Citation:

[2018] ACTSC 256

Hearing Date:

30 July 2018

DecisionDate:

30 July 2018

Before:

Burns J

Decision:

See [8] – [12]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a trafficable quantity of cannabis – cultivating a trafficable quantity of cannabis – finding of guilt after judge-alone trial – level of remorse – appropriateness of a term of imprisonment

Parties:

The Queen (Crown)

Simon Trewin (Offender)

Representation:

Counsel

Mr P Dixon (Crown)

Ms B Dunne (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 87 of 2015; SCC 88 of 2015

BURNS J

1. Mr Trewin, on 27 April 2018 I found you guilty of two offences, the first being trafficking in a trafficable quantity of cannabis (CC15/1129), and the second being cultivating a trafficable quantity of cannabis with the intention of selling any of the plants or the products (CC15/1128). That finding of guilt was made after a judge-alone trial which extended over a period between June 2016 and December 2017.

1. I note with regard to the cultivation charge that there were some 44 cannabis plants involved and that there was a hydroponic setup which involved a moderate degree of sophistication. I note that there was also a significant cost revealed by the evidence in terms of the setup used in the cultivation of those plants.

1. I note, as was submitted by your counsel, that there were no other indicia of supply or trafficking with respect to either the cannabis that was found being cultivated or, alternatively, the dry cannabis which was also located at your premises.

1. The prosecution case succeeded on the basis of your failure to satisfy the onus which had been cast upon you to demonstrate that the cannabis in your possession was not for the purpose of supplying it. In other words, there was a rebuttal presumption in the relevant legislation which required you to demonstrate, on the balance of probabilities, that you were either cultivating or in possession of the cannabis for some purpose other than the sale or supply of that cannabis. You failed to satisfy me with regard to the onus which the legislation cast upon you. The point that I am making in that regard is that there were no other indicia at that place before me with respect to any significant involvement in supply.

1. I note that you had a minor criminal history prior to the commission of these offences. It is true, as has been submitted by the Crown, that you have not demonstrated any remorse with respect to these offences. However, that does not impact upon the objective seriousness of the offences; rather it means that you are not entitled to the reduction in penalty that you may have been entitled to had you demonstrated remorse, for example, by way of an early plea of guilty.

1. It has been accepted, and I think rightly so, by your counsel that terms of imprisonment are appropriate with respect to these matters. I take into account in determining how such sentences of imprisonment should be served the evidence which has been put before me with regard to your current physical and mental health. I accept that a term of immediate imprisonment is likely to weigh more heavily upon you because of those circumstances than would be the case if you did not suffer from the conditions which are set out in the reports.

1. I am satisfied that terms of imprisonment to be served by way of suspended sentence with a Good Behaviour Order will be adequate to appropriately reflect your criminality and to address the requirements of sentencing.

Sentence

1. With regard to the charge of cultivation (CC15/1128), you will be convicted and you will be sentenced to two years' imprisonment commencing today, 30 July 2018.

1. With regard to the charge of trafficking in cannabis (CC15/1129), you will be convicted and sentenced to 12 months' imprisonment, six months of which will be cumulative with the sentence for cultivation which I have just imposed, commencing 30 January 2020.

10.  I have therefore imposed an aggregate sentence of two years and six months' imprisonment, commencing today, 30 July 2018.

11.  Those sentences will be suspended forthwith and there will be a Good Behaviour Order for a period of three years requiring you to accept the supervision of the Director-General of ACT Corrective Services for that period of three years, or such lesser period as deemed appropriate by your supervising officer.

12.  There will be a further condition that you are to undertake such counselling or treatment as directed by the Director-General of ACT Corrective Services or that person's delegate for that period of three years or such lesser period as determined by your supervising officer.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 10 September 2018