[T]he evidence does not permit me to make a positive finding in respect of intended profit share, ownership of or involvement in the cultivation of the crop on any day, other than the date of the raid. ... Nor does the evidence or the law permit me to make a positive finding of intention to cultivate a commercial quantity, as against Mr Nguyen, by reason of his knowledge of the existence of the crop and his presence on the day of the raid.
However, insofar as it is put as a mitigating factor that Mr Nguyen's role is confined to knowledge on the day of the raid that Ms Kieawkaew was cultivating a crop for her own benefit and that he did not stand to benefit in any way, Mr Nguyen has not discharged his onus of satisfying me on the balance of probabilities that his knowledge and role was so confined. Nothing in the materials or the submissions now provided has altered that view.
So far as Mr Nguyen's role is concerned, I am satisfied ... that he, together with Ms Kieawkaew, a woman with whom he was in a relationship of some sort for two years, was present at a house owned by him and in which two bedrooms were set up in a professional manner as grow rooms for a large crop of marijuana in various stages of maturity and where in other parts of the house, other items and paraphernalia connected with the cultivation of marijuana were present. I must view that in the context of Mr Nguyen having been sentenced only the previous day for cultivation of a crop of marijuana in an apartment in which he and his co-defendant had lived for some time and which was rented in her name, before it was turned into a grow house for a marijuana crop, which he claimed was his own and cultivated in order to pay for his own drug habit.
... The evidence does not permit me to make a finding that the crop was, in truth, Mr Nguyen's, or that he and Ms Kieawkaew were co-owners of it, or that they were to share, in any percentage, in the proceeds of the cultivation of the crop. Nor does the evidence permit me to find that Ms Kieawkaew is taking responsibility for possession of weapons which were Mr Nguyen's, or jointly possessed. The evidence does not permit me to make findings adverse to Mr Nguyen about those matters.
However ... there is no evidence which supports the acceptance, that is being satisfied on the balance of probabilities, of the matters asserted as mitigatory in respect of Mr Nguyen's knowledge of the crop, and his role. Insofar as the matters asserted on Mr Nguyen's instructions as to Ms Kieawkaew's role, are to be treated as mitigatory when sentencing him, that is, that it was her crop, grown to provide funds to support her ice habit, I am not satisfied on the balance of probabilities for the purposes of sentencing Mr Nguyen, of those matters.
I should add, I am not prepared, on the evidence and having regard to the matters I have set out about the manner in which the cases were presented, for the purposes of sentencing Ms Kieawkaew, to find, that is to be satisfied, beyond reasonable doubt, that she was solely responsible for the crop and stood solely to benefit from it.[21]