Court: Southport District Court
Lawyers: Erin Mitchell and Bill Potts
Author: Joy Qin
Date: August 2021
Sentence: 18 months’ imprisonment, wholly suspended for an operational period of 2 years for producing a dangerous drug.
Lesser terms of imprisonment for the other offences (counts 2, 3 and 5). These sentences are concurrent (eg. they run at the same time).
Convicted and not further punished for count 4 and the charge of possess utensils.
Convictions recorded for all offences.
Our client was sentenced on indictment for a number of drug charges, primarily in relation to cannabis. The most serious charge was producing a dangerous drug in excess of 500g. Located by police at our client’s residence was a sophisticated hydroponic set up and a significant quantity of plants and dried cannabis. There was over 100 plants and over 23 kilograms of cannabis plants and loose cannabis.
During the search police also located a number of items used in the set up, a pipe for consuming cannabis, some DMT, cannabis oil and GHB.
Police also had a warrant to seize our client’s mobile phone and to access the phone. They provided our client her mobile so she could unlock it for them and instead our client damaged the phone. Our client’s failure to provide Police with access to the phone was considered such a serious offence that the Court imposed 12 months’ imprisonment for that offence alone.
Police initially tried to allege that the production of cannabis was for a commercial purpose, which makes the offending more serious and increases the penalty the Court would impose. Prior to the sentence, we entered into negotiations with the Prosecution about how the production should be characterised. We argued that while the quantity, sophistication and storage of the cannabis plants could lead to a suggestion of commerciality, there was no evidence of actual commerciality. For example, there was no evidence of tick sheets, cash or excessive wealth, nor was there diversion of water and electricity which might indicate a commercial intent or attempts to evade authority.
Ultimately, this submission was fairly accepted by the Prosecution prior to sentence and both the Crown and Defence submitted to the sentencing Judge, that whilst there was elements of commerciality, there was no actual evidence of any commercial purpose and that the penalty should be adjusted accordingly.
We addressed the Court in relation to our client’s unique personal circumstances, including that she suffered from mental health diagnoses which were supported by psychological reports and character references tendered. Self-medication through consuming cannabis personally was a mitigating factor which the Judge considered. These facts are also consistent with the idea that the production of cannabis was not strictly commercial.
We had asked our client from the outset of her matter, to undertake counselling and drug education courses so we were able to show the Court that she was rehabilitated at the time of her sentence. In our client’s favour was her lack of any criminal history prior to this offending.
The Prosecution emphasised the scale and quantity of cannabis found. We made extensive written submissions about the mitigating features in our client’s case and also provided the Court with case law to assist them in determining the most appropriate penalty.
The penalty range for this type of drug offending is broad from the case law, but there was a real risk that actual time in custody would be served. The prior negotiations with Prosecution, supported by our written submissions, and our client’s rehabilitation ensured that the Court could reduce the penalty they would have otherwise imposed.
Ultimately, this resulted in a suspended sentence where our client did not have to go into actual custody which was a sure relief and an excellent outcome. Our client will have 18 months’ jail hanging over her head for the next 2 years. As long as she stays out of trouble, she will not be required to serve a day in jail. If she does get convicted of an offence in that period, she would have to go back to Court and they would consider making her serve some or all of that 18 months’ imprisonment.
This is a summary of an actual case. Details have been omitted to protect the privacy of our client. We select cases which are informative and no guarantee is provided that similar results are achievable in all cases. Every case is different and you should obtain legal advice specific to your matter and circumstances.
Despite the serious nature of the offences, the court ultimately accepted Mr Hanlon’s submissions and sentenced both defendants to a period of probation and, importantly for both young men, no convictions were recorded for the offences.