HIS HONOUR: Van Truong Bui stands for sentence as a consequence of having pleaded guilty to two substantive charges. He also asks me to take into account the two charges on a Form 1.
The offender is from Vietnam. He came to Australian in February 2015 when he was 21 years old. He came to Australia on a student visa. He told me that he was studying accounting. I do not know how this occurred but there is on the sentencing assessment report handwritten material indicating that the offender was studying at a college of advanced education and completed two of a three year course in finance.
The first substantive charge to which the offender has pleaded guilty is that between 29 December 2016 and 8 March 2017 at Eastwood in this State did knowingly take part in the cultivation of a number of prohibited plants, namely 88 cannabis sativa plants, which was not less than the commercial quantity applicable to that plant. However, as the matter has been argued, the Crown cannot establish that the offender knew that there were 88 cannabis plants on the property and Crown accepts that the offender knowingly took part in the cultivation of prohibited plants by enhanced indoor means for a commercial purpose in an amount no more than the commercial quantity. The commercial quantity of cannabis plants is 50. The offence to which the offender has pleaded guilty is one contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is imprisonment for 15 years and/or a fine of 3,500 penalty units.
In December 2016, police commenced enquiries into the suspected cultivation of cannabis at premises at 25 Holway Street, Eastwood. On 29 December 2016, police conduced surveillance outside that property. At 7.30am a white Toyota Camry was parked outside the address and two Asian males left the vehicle. They then entered the address and stayed there for a very short period, until 7.38am, when they re-entered the vehicle. The vehicle was driven to Birchgrove where the two males began fishing. They were approached by uniformed police officers and one of the offenders identified himself as the current offender, giving his correct date of birth and telling the police that he resided at an address in Wiley Park, which was 19 kilometres distant from the Eastwood property.
R v Bui [2020] NSWDC 119 | Case summary | Zoe
On 11 January 2017 police installed a motion activated camera outside 25 Holway Street, Eastwood. However, it was incorrectly calibrated. Between 11 and 17 January 2017, the offender attended the property on three occasions, the exact dates for which cannot be ascertained from the camera footage. At the first occasion the offender stayed at the property for one hour and 47 minutes, on the second occasions for one hour and six minutes, and on the third occasion for 22 minutes. The offender is known to have gone to the property after those occasions on 18 January 2017, and stayed there for two hours and 14 minutes.
The offender did not attend the premises again prior to 8 March 2017, when police executed a search warrant at the property. Inside the house police discovered a hydroponic cannabis cultivation set-up where cannabis plants were being grown by enhanced indoor means. Five rooms of the property had been converted for the purpose of growing cannabis plants, with watering systems, heat lamps, electrical transformers and power boards and large carbon filters hanging from the ceiling. The hum of carbon filters could be heard throughout the house when it was entered. As I have already stated, the police found a total of 88 cannabis plants, but the offender is to be sentenced on the basis that the number of plants was less than the commercial quantity, that is less than 50 plants.
The Crown case is that in attending the address on multiple occasions for significant time periods at times, in circumstances where there was no-one residing at the address, and no other reason for attending the location, the only rational inference is that the offender must have taken part in the cultivation of cannabis at the address. The offender admitted as much today in his evidence. He said he had attended the premises on and off over a period of two months. He told me that he was paid $200 for attending in a two week period, and later in re-examination stated that he was in fact paid four times $200, that is he was paid for eight weeks attending at the rate of $100 per week. He admitted that he was attending to the watering process of the cannabis plants being grown in that property.
The second substantiative offence is more serious. The offender has pleaded guilty to a charge of knowingly taking part in the cultivation of prohibited plants, of a large commercial quantity of such plants, namely 282 plants. That is an offence contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, and it carried a maximum penalty of 20 years imprisonment and/or a fine of 5000 penalty units.
The police became interested in a property at 3 Maple Grove, Wentworth Falls in November 2018. The police suspected that cannabis was being cultivated on that property. The property is a two-story house with a double garage. On Thursday 3 January 2019, police investigators noticed a Toyota Camry sedan parked on the driveway of that property just after 1pm. A short time later that vehicle was driven from the property and onto the Great Western Highway, and then driven east towards Sydney. The vehicle was intercepted by the police on the Great Western Highway at Emu Plains. The vehicle was being driven by the offender. A lady that the offender calls his girlfriend was front-seat passenger.
The offender's English is poor. The police needed to communicate with him through a Google audio translator. When asked where he had come from the offender wrote the address 3 Maple in dirt on the rear window of his motor car. The vehicle was searched by the police. In the boot they located a brown cardboard box which had been taped shut. Inside the box was a cannabis plant with its root system still attached. When asked by the police where the cannabis plant had come from, the accused pointed west, that is towards Wentworth Falls, and said in broken English "the house". When asked by officers whether there were more of these plants in the house the offender indicated there were "about 200". He was then arrested and taken to Penrith Police Station. After obtaining legal advice, he declined to participate in an electronically recorded interview.
Later the property at Wentworth Falls was searched pursuant to a warrant issued by the Local Court at Parramatta. There was no-one living on the property when police arrived there. Police found a sophisticated enhanced indoor hydroponic cultivation system with cannabis growing throughout the house. Police found cannabis plants, fertilisers, and lighting and other electrical equipment located in a number of rooms. Some of the rooms had been altered by the addition of gyprock and timber framing. An irrigation system linked the growing pots and there was a filtration system. A total of six rooms had been converted for the sole purpose of cultivating cannabis. The 282 cannabis plants were of varying heights. The approximate value of the plants found was $1,200,000.
Representatives of Endeavour Energy attended the property and located an illegal electrical bypass in the roof of the house. The illegal connection created a potentially dangerous situation due to the circuits powered from the illegal connection not being protected by consumer fuses and when the main switch was turned off all circuits applied by the illegal bypass could still be used live. No permission had been obtained from Endeavour Energy to use unmetered electricity. Tests conducted by Endeavour Energy revealed that the illegal connections were supplying unmetered electricity to the electrical hydroponics equipment. Representatives from Endeavour Energy estimate stolen electricity used by the illegal bypass amounted in value to over $100,000.
A large number of items were seized by the police. Amongst them were three toothbrushes. There were also four resealable plastic bags containing green vegetable matter. That vegetable matter was cannabis leaf. The total weight of cannabis leaf found in the four resealable bags was 784 grams.
The offender asks me to take into account on the Form 1 the offence of using, consuming or wasting electricity without authority and the deemed supply of the prohibited drug, cannabis sativa, namely the drugs found in the four resealable plastic bags.
The offender told me that he was recruited to care for this cannabis plantation by a gentleman he referred to as Minh. The offender was required to live at the property at Wentworth Falls. He lived there four weeks. He was promised and paid $10,000 for his six weeks work. In addition to the $10,000 he also received free accommodation. The offender indicated that one of the three toothbrushes was that of his girlfriend who stayed perhaps only occasionally overnight at the property. To whom the other toothbrush belongs is unknown.
The offender said that he did not harvest any cannabis, that when any harvesting was to be done he was told to leave the property and only invited back when the harvesters had left. However the presence of the packaged cannabis leaf on the property found at the time of the execution of the search warrant tells me that the offender was trusted by Minh not to use or sell the product of the plantation. That tells me that he was trusted.
Mr Fung, for the offender, seeks to make much of the fact that he did not actually harvest any of the leaf, but it appears to me that the significance of that only is that those who were doing the harvesting sought to conceal their identity from the offender. It was not a question of either expertise or trust, but rather the concealing of the identity of the harvesters, who may have been those beneficially entitled to the cannabis crop, and that may of course have included Minh.
The offender was clearly not a principal in either cannabis cultivation. However, he was a trusted person in the project at Wentworth Falls. He was trusted to care for and guard the crop. He was there to maintain the hydroponic set-up, the feeding of the plants with water and fertiliser, and to maintain the electrical supply to the equipment being used to grow the crop by enhanced indoor means.
The offender has not committed any crimes in Australia prior to these crimes. It is unlikely that he has been found guilty of any crime in Vietnam because had he been found guilty of a crime in Vietnam it appears to me to be unlikely that he would have been issued a student visa. However the student visa expired some time ago and certainly at the time of the Wentworth Falls cultivation the offender was an unlawful resident in this country. The facts tell me that he is liable to Immigration detention upon his release from custody, and no doubt will be returned to his native land. However, the offender is still to be given the benefit of being a man of prior good character.
The offender from the witness box today expressed his regret for the crime which he committed, and apologised to the Court and the Australian community for his illegal activity. However there must be some doubt about the sincerity of that evidence. A presentence report was prepared by Ms Clare MacRae, a Community Corrections officer, on 18 February 2020. Shortly prior to that she interviewed the offender. Under the heading "Attitude" Ms MacRae recorded this:
"Mr Bui claimed that he has never consumed illicit substances and identified the harmful effects drug use has upon the community. Despite this, Mr Bui justified his offending behaviour in his belief that he was 'doing it for the right reasons in itself'. Mr Bui was referring to the money he made through his offending, which he claimed was solely for the purpose of sending home to his family in Vietnam".
In cross-examination the offender sought to tell me that that was what he initially believed, but that clearly is still what he believed earlier this month. It is not uncommon for offenders to tell me of their remorse for the crime, but often that remorse is not genuine. Discussing the offender's response to his crime Ms MacRae stated this:
"Mr Bui stated that he disagrees with illicit substance use, however was not deterred by this in pursuit of his offences".
If that be the case the offender cares nothing for the law, the rule of law, or the Australian community. As I said, it is difficult to know where the truth lies. Therefore it is difficult know whether the offender will offend again. If he does, it will not be in Australia. Nevertheless Ms MacRae herself thought that the offender was at a low risk of reoffending, according to the assessment tools used by Community Corrections.
The offender through his solicitor concedes that the commonly noted s 5 threshold, the threshold under the Crime (Sentencing Procedure) Act 1999, has been crossed and therefore the offender ought be sentenced to imprisonment.
For the first offence, statistics from the Judicial Commission tell me that only three sentences have been passed. In each case the sentence passed was an intensive correction order of between 18 months and 24 months. For the offence against s 23(2)(a), one offender has obtained a conditional release order, six offenders have received an intensive corrections order, but the majority of offenders, 22, have been sentenced to imprisonment. The lowest penalty imposed was imprisonment for 24 months, with a non-parole period of 12 months. The median sentence passed was three years and six months with a non-parole period of two years, and the highest sentence passed was five years, with a non-parole period of three years. As far as the old 80% range is concerned, that is chopping off the bottom 10% of cases, and the top 10% of cases, the range of head sentences is between four years and two and a half years imprisonment.
It is conceded by the Crown that the offender pleaded guilty at the earliest available opportunity and therefore is entitled to discount of 25% of the sentence to be properly passed for the utilitarian value of his pleas of guilty.
After allowing for that discount I believe that the appropriate sentence to pass for the first offence is a fixed term of imprisonment of three months.
For the offence contrary to s 23(2)(a), I believe the appropriate starting point is a term of two years and four months, which I reduce by 25% for the utilitarian value of the offender's plea, which reduces the sentence to one year and nine months. Applying the statutory ratio between the head sentence and the non-parole period, but rounding it down in favour of the offender, that gives me a non-parole period of one year and three months.
I have been addressed on there being "special circumstances" to break the statutory nexus between the head sentence and the non-parole period. The authorities make it abundantly clear that the reason for special circumstances must relate to rehabilitation. However, there is no recommendation of any necessary rehabilitative steps that must be taken in the sentencing assessment report, nor can any such reasons come to mind. Accordingly I will fix the non-parole period at one year and three months.
HIS HONOUR: Anyone want any further reasons?
PINKERTON: No, thank you.
FUNG: No, your Honour.
HIS HONOUR: Van Truong Bui, on the charge that between 29 December 2016 and 8 March 2017 at Eastwood in this State, you did knowingly take part in the cultivation by enhanced indoor means of prohibited plant, namely cannabis, you are convicted. I sentence you to imprisonment for three months commencing on 3 January 2019, and expiring on 2 April 2019.
On the charge that on 3 January 2019 at Wentworth Falls in this State you did knowingly take part in the cultivation of a number of prohibited plants, namely 282 cannabis sativa plants, which was not less than a large commercial quantity applicable to that prohibited drug you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing 3 April 2019 and expiring 2 July 2020. I impose a third period of imprisonment of six months to commence upon the expiration of the non-parole period and expiring on 2 January 2021. The total sentence is therefore one year and nine months, comprising the non-parole period, and the balance of the sentence. I do not find special circumstances. You are eligible to be considered for release on parole at the end of the non-parole period. In passing those sentences I take into account the two matters on the Form 1.
HIS HONOUR: Any other orders sought?
PINKERTON: Yes, your Honour, the Crown formally withdraws sequence 4.
HIS HONOUR: Leave to the Crown to withdraw the charge numbered 870647065/4.
Any other orders sought?
PINKERTON: No, your Honour.
FUNG: No, your Honour.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 April 2020