R v Chien; R v TA

District Court of NSW|2023-06-19

The Offenders

HIS HONOUR: The Co-Offenders in these matters are Tran Quyet Chien ("Chien") and Quang Trung Ta ("Ta"). They appear before me for sentence for a number of matters to which they have pleaded guilty.
Chien was 40 years old at the time of the offences and is still that age. Ta was 35 years old at the time of the offences and is still that age. Ta was residing unlawfully in Australia at the time of the offences.

Timing of plea

Chien entered a plea of guilty in the Local Court and was committed for sentence on 23 March 2023. He is entitled to the 25% utilitarian discount pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
Ta entered a plea of guilty in the Local Court and was committed for sentence on9 March 2023. He is entitled to the 25% utilitarian discount pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act.

Time in custody

Both Offenders were arrested on 26 August 2022 and were remanded in custody on 26 August 2022. They have both been bail refused since that time. The Offenders have spent 309 days in custody solely referable to the above offences.

General principles in the sentencing of cultivational offences

It is the intention of Parliament that there be a substantial sentencing response for offences of cultivation of commercial quantities of prohibited plants by enhanced indoor means.
In sentencing the Offenders it is necessary for the Court to have regard to the objects of the legislation concerning the suppression of organised criminal activity involving the clandestine cultivation of valuable cannabis crops in residential settings in urban areas. This is a well-known and widespread practice among organisers of hydroponic cannabis operations and difficult to detect.
Assumptions that marijuana is a "recreational drug", with lower addictive qualities and few potential health dangers, has been called into serious question, Courts have recognised that cannabis can have very serious consequences for users with destructive potential for the lives of young persons in particular.
The Courts have emphasised that both specific deterrence and general deterrence play an important part on sentence for this class of offending, as does the need for adequate punishment and denunciation of these offences.
The Crown has submitted that any sentence the Court sees fit to impose should necessarily recognise the harm done to the community by the commission of these offences, should hold the Offender to account and should denounce their behaviour (s 3A Crimes (Sentencing Procedure) Act 1999).
It is submitted on behalf of the Co-Offenders that community attitudes to the sale and use of marijuana have softened significantly in recent years. It was suggested that we are living in changing times and that the Court should acknowledge this change in community sentiment. Without forming any view as to the current attitudes of the community, a task which a single judge could resolve by doing no more than applying their own subjective views, I reject that submission. It is a matter for Parliament by legislation to reflect community standards, not the Courts. Unless and until Parliament alters the law the Courts are required to apply that law.

Material tendered by the Crown

There is a statement of agreed facts for each Offender.
In relation to the matter of Chien, the facts are agreed and are accepted as relevant to the question of his sentence.
In relation to the matter of Ta, the facts are agreed as facts, however, Mr Gould who appears for Mr Ta, has submitted that some of the facts alleged by the Crown (which relate to the Carlingford premises cultivation) are irrelevant to the case against his client insofar as he has been charged for offences concerning the Jannali cultivation.
I largely agree with the submissions made by Mr Gould in that regard and have taken no account, as I consider then irrelevant the facts alleged against his client at paragraphs 3 - 10 of the statement of agreed facts.
At paragraph 29 of the statement of agreed facts in relation to Ta the evidence was updated so that the combined seizure value of the plants in the granny flat at Jannali was $381,000 in relation to the 93 cannabis sativa plants and $195,000 in relation to the 81 cannabis sativa plants located inside the granny flat.
Mr Gould submits I should give little or no weight to the valuations proved prima facie by the certificate tendered on behalf of the Crown although he does accept that the value of the cannabis involved was obviously to be measured in the hundreds of thousands of dollars.
I do not think that there is any real significance in the difference once that concession is made and will proceed that the value of the plants was in the vicinity of the amount proved in the certificate.
I shall summarise the facts as briefly as I can.

The Carlingford premises

On 21 April 2022 police attended the Carlingford premises and observed an exhaust fan running from inside the premises and saw that all the windows had been blacked out.
Police returned to the premises on 22 April 2022 with the owner of the premises where they saw inside the premises a large number of mature plants. They applied for and were granted a crime scene warrant.
The execution of the Carlingford premises crime scene warrant occurred at 10.50am on 23 April 2022 wherein 185 cannabis plants in pots were identified. The plants were being grown inside the premises with a watering system and artificial light to enhance their growth. The premises were not being used for any other purpose than cultivating the plants.
On 23 April 2022 at about 12.30am, police saw two males of Asian appearance walking toward the Carlingford premises. One of these males was the Offender Chien.
The Offender Chien, having seen the police officers approaching, got into a grey Nissan vehicle which was followed by police, pulled over and all four males inside apprehended and placed under arrest.
After declining a police interview the Offender Chien was charged in relation to the Carlingford offence on 27 September 2022.

The Jannali offences

After Police made a number of observations of the premises throughout July and August 2022 an execution of crime scene warrant was issued and executed on the Jannali premises at around 4.45pm on Thursday 25 August 2022.
Inside the premises police observed five rooms continuing cannabis plants of various sizes, lighting equipment, irrigation and other electrical setups, no rooms appeared to be habitable as there was no furniture or items found in a typical residential premises, the growing rooms contained medium height potted cannabis plants with high intensity lighting overhead with light shades, there was black coloured polyester pipes leading into the bottom of the cannabis plants and there were numerous electrical boards running electrical extension cords, every room was either dedicated for growing of cannabis or for the storage of material used in the growing of cannabis.
There was a granny flat attached to the Jannali premises where similar observations were made by the police.
The Offender Ta was arrested at the scene, conveyed to Sutherland police station wherein he declined to take part in an interview. He was subsequently charged with the offences.

Objective seriousness - cultivation of cannabis at the Carlingford and Jannali premises

Considerable modifications had been made to the Carlingford premises and the Jannali premises. These modifications are only referable to the growth of plants inside what are otherwise residential premises. Cultivation at the two premises can be described as a relatively sophisticated hydroponic cultivation clearly involving extensive planning and organisation. 1. Specifically, at the Carlingford premises (relating to Chien only): 2. The premises contained 76 large cannabis plants that were 1.5 t 2 metres tall, 37 medium cannabis plants that were 1 to 1.5 metres tall, and 72 small cannabis plants that were between 10 and 60 centimetres. 3. The four bedrooms, combined dining/living area and kitchen in the premise were used for the cultivation of cannabis. 4. The main bathroom and toilet stored plant-growing chemicals in containers, mulch, pot and buckets. 5. There was an irrigation system for watering the plants as the bath was full of brown water with hoses leading from the bank and sink taps to other areas of the house. 6. The plants were cultivated in a structure with the application of an artificial light source. Across the 6 grow rooms, 119 lights and shades were seized by police. 7. All rooms had air filtering ducting, which was suspended from the ceilings. 8. The windows of the premises had all been blacked out, and makeshift gyprock walls had been erected in some of the rooms. 9. Electricity had been diverted from the main. 10. Damage had been done to the property in the course of altering the property to make it suitable for cultivation. The fins of the ceiling fans in most rooms had been broken off or completely removed to allow for the ceiling mounted fixtures, a makeshift hole was cut using a saw into the wall of the garage, the hallway carpet was saturated, and doors to the built-in wardrobe within Room 4 had been removed. 11. There was a wireless CCTV camera set up at the premises. The CCTV captured the front door at the house.
Specially, in relation to the Jannali premises (relating to both Offenders): 1. 93 Cannabis plants under 1 metre were found in the premises. 2. Five rooms in the premises were used for the cultivation of cannabis. 3. Every room in the premises was either dedicated for the growing of cannabis or for the storage of material used in the growing of cannabis. 4. There was an irrigation system in Rooms 2, 3, 4 and 5 for watering the plants. Plants in Room 1 needed to be manually watered. 5. Across the premises, 44 transformers, 85 light globes, 59 lamp shades and 72 batwings were seized by police.
In relation to the granny flat of the Jannali premises (relating to both Offenders): 1. 11 Cannabis plants over 1 metre in height and 70 Cannabis plants under one metre in height were found. 2. The granny flat contained of three additional "grow rooms" and various ventilation tubes running across the kitchen floor. 3. There was an irrigation system for watering plants in rooms 1 and 3. Manual watering of the plants was required for room 2. 4. 30 transformers, 22 light globes, 31 batwings, 6 light fittings and 6 lamp shades were seized by police from within the granny flat.
The Carlingford premises contained a total of 185 cannabis plants and the Jannali premises contained a combined total of 174 plants. Therefore, each property contained an amount being more than three times the commercial quantity of cannabis (50 plants) and is relatively close to "large commercial quantity" of 200 plants. The value of the plants being cultivated at the Jannali premises had a combined value of a significant amount.
The plants at both premises were various sizes and at different stages of development, indicating that the operation had been occurring for some time and was an ongoing venture.
The cultivation operations taking place at both premises were relatively sophisticated and extensive and were clearly for commercial supply as evidenced by the volume of crop being cultivated.

The role of the Offenders

That the Offenders were arrested at an early rather than a late stage of cultivation for some of the plants does not entitle them to any particular mitigation. Rather, the Offenders' criminality is tied to the fact that they were cultivating cannabis as part of an illegal enterprise, which sought to make a profit. It is immaterial whether the intention was to sell the plants when they matured, rather than at the time the Offenders were arrested.
In Andreata v R [2015] NSWCCA 239, after revising several authorities on sentencing for cultivating not less than a commercial quality of cannabis, Beech-Jones (Ward JA and Adams J agreeing) noted that: "What can be discerned by way of "unifying principles" from the above cases is that two important factors relevant to sentencing in this area are the scale and sophistication of the cultivation and the role of the offender whether as a principal or as "babysitter" or something in between .."
The Crown submitted that the objective seriousness of the cultivation offences relating to both premises are at the mid-range for offending of this type, considering the nature and sophistication of the operation, the number of prohibited plants, and the roles of the Offenders.
The agreed facts do not detail whether either offender was involved in specific decision-making processes, in contributing financially to setting up the operation, or in sharing in the profit in relation to either the Carlingford or Jannali premises. The paltry amount of cash seized at the time of these events tends to suggest they were not really paid much at all.
While the roles and levels of involvement of Chien at both premises and the role of Ta at the Jannali premises and level of involvement could be placed towards the lower end of any discernible hierarchy, the care and maintenance tasks involved in fulfilling a "labourer" type of role, are undoubtedly important and necessary for successful cultivation.
Furthermore, the Court has previously stated that "labourers" not involved in the planning of the venture can expect to receive heavy sentences, as the overall venture could not succeed without their efforts: R v Akeljic (CCA (NSW)) , 17 December 1981, unreported); R v Catanzarita (CCA (NSW)), 31 October 1997, unreported); R v Le Cerf (1975) 13 SASR 237; 1 ALR 349.
The submissions for both Offenders was that their involvement can be descried as low level gardeners in the criminal activity of growing the crop.
I accept the submissions for the Offenders. They were involved at a manual labour level in what was a relatively sophisticated crime. I find that the objective seriousness of the crimes committed by each offender is towards the lower end of the range.

Aggravating factors - s 21A(2) Crimes (Sentencing Procedure) Act 1999

It is conceded by the Crown that there are no aggravating factors present in relation to these matters.

Mitigating factors - s 21A(3) Crimes (Sentencing Procedure) Act 1999

There are a number of mitigating factors. Neither Offender has any record of previous convictions (s 21A(3)(e)), both Offenders were persons of good character (s 21A(3)(g)) and both Offenders had entered an early plea of guilty (s 21A(3)(k)), both Offenders have expressed remorse and contrition.

Sentencing assessment report

In relation to Mr Chien there is a comprehensive sentencing assessment report dated 19 June 2023.
His risk of reoffending has been assessed at low and a supervision plan recommended in the event it is determined he serve any part of his sentence in the community.
I heard the matter on an agreed assumption that there would be a sentencing assessment report along similar lines in relation to Mr Ta. That report dated 22 June 2023 has since been received into evidence and is consistent with that assumption.

Offenders' subjective circumstances

Each Offender has no prior criminal record. They both entered a plea of guilty in the Local Court and are both entitled to a 25% discount.
The circumstances which led to their offending are similar. They both came to Australia from Vietnam, have little or no command over the English language, found themselves in the COVID lockdown era without any employment or support, became desperate to obtain money and found themselves lured into involvement in the criminal activity.
As I have said, they have both expressed contrition and remorse. As far as I can tell they participated to no degree in the profits of the illegal enterprise.

Deportation

It was agreed by all parties that the prospect of deportation of either Offender in the future is irrelevant to the structuring of a sentence and I have therefore taken no account of any speculation as to what might happen to the Offenders in relation to their status in that regard.

Parity

The parity principle is an important aspect of the process of sentencing. The treatment of like cases should be seen as far as possible to be at least similar.
In relation to the activities of both Offenders at the Jannali premises, the Crown has submitted, and I agree that it is impossible to distinguish the activities of the Offenders in that regard. They should receive the same sentence for that conduct.
As far as Chien's role in the Carlingford offences is concerned, the Crown submits that it is appropriate that there is some partial accumulation as between the sentences imposed at each premises. The Crown points to the gap of two or three months between the offences, and the fact that there was a large quantity of marijuana involved in each offence.
Mr Adams, who appeared for Mr Chien, in what I found were persuasive submissions, essentially made the point that Mr Chien like Mr Ta was doing what he was told to do by those above him in the criminal enterprise. It was therefore simply a matter of happenstance that he was instructed to become involved at two separate locations, whereas Mr Ta was only instructed to work at one premises.
In other words, his submission was that the proper analysis of the criminality involved was his client's decision to accept instructions to be involved in the cultivation of marijuana wherever that cultivation was taking place. On that analysis there was no separate element of criminality in attending to that task at each premises and the conduct is a continuation of the one decision.
I have decided to accept the submissions of Mr Adams in that regard and propose to accumulate the indicative sentences relevant to Mr Chien totally.

Section 5 threshold and sentencing disposition

Cultivation offences are still regarded by the community through parliament as gravely serious. Any sentence that I impose needs to incorporate a strong degree of both general and specific deterrence.
It is submitted by the Crown and conceded on behalf of both Offenders that the s 5 threshold has been crossed. I agree.
Both Offenders submitted that it might be appropriate for me to conclude that the time in custody to date (309 days) is sufficient punishment. I do not agree. In my judgment, notwithstanding the relatively low objective seriousness of the matters and the relatively strong subjective case of each offender, significant weight has to be given to general deterrence so that people in the community who are contemplating this sort of offence are aware that if they come to the attention of the authorities significant penalties await them.

Special circumstances

Each offender has submitted that "special circumstances" and for that reason deviate from the statutory ratio of the non-parole period to the head sentence.
On behalf of the Offender Ta, the special circumstance relied upon were that it was offence and his first term of full time imprisonment, and in relation to the Offender Chien, it was submitted that his lack of English and family support made him vulnerable, he has young children aged 9 and 5 years who need his support, the $175 he had in his possession indicates his status in the illegal operation and he has already spent 309 days in custody.
I do not regard either Offender has having made out any special circumstances. My understanding of the intent of the legislation is that the type of circumstances that are to be considered are really directed to the question of whether a longer period on parole at the conclusion of full time imprisonment would be more conducive to the rehabilitation of the Offenders. The matters to which I have been directed seem to me to not have any real relevance to that question in the present cases. True it is that it is each Offender's first time in goal but they have clearly served 309 days so that relevant factor has much reduced weight.
As to the other matters, I have taken them all into account when determining the head sentence and think that there would be an element of double counting for me to again consider them at the "special circumstances" stage.
For these reasons I reject the submissions on behalf of both Offenders that I should deviate from the statutory ratio of the non-parole period to the head sentence.

Determination

In all the circumstances I have determined that that an indicative sentence for both Offenders relating to the drug offence at Carlingford premises should be a period of imprisonment of 24 months less 25% discount for the early plea. being a head sentence of 18 months with a minimum non-parole period of 1 year and 1 month, meaning the first date he is eligible for release is 10 October 2023.
The same sentence is appropriate for the Offender Chien in relation to the drag offences at the Jannali premises.
In relation to Chien the sentences should be wholly accumulated.
In relation to the proceeds of crime offences I propose to enter a conviction against both Offenders but impose no additional penalty.

Should the balance of the sentences be served in the community?

Both Mr Gould for the Offender Ta and Mr Adams for the Offender Chien submitted that in all the circumstances an Intensive Corrections Order to be served in the community would be appropriate.
The submissions really boil down to the proposition that such a method of serving the sentences would promote community safety. I do not think that submission has been made out. In this case there is no suggestion that either offender is proposing to undertake any treatment of counselling for addiction, mental health issues or anything of that kind.
Accordingly, I am not persuaded that community safety, being the paramount matter to be taken into account under s 66, has any real application in the present case.
Accordingly, I have decided not to order that the sentences be served in the community pursuant to an Intensive Correction Order.

Tran Quyet Chien

You are convicted of the offences to which you have pleaded guilty.
For the offences of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, I sentence you to an aggregate sentence of imprisonment of 18 months with a minimum non-parole period of 13 months.
For the offence of possessing $175.00 in cash I convict you but impose no sentence (s 10A).
The sentence is to commence on 25 August 2022.
The first date you are eligible for parole will be 24 September 2023.

Quang Trung Ta

You are convicted of the offences to which you have pleaded guilty.
For the offence of cultivating a prohibited plant pursuant to s 23(2)(a) of the Drug Misuse and Trafficking Act 1995, I sentence you to 18 months imprisonment with a minimum non-parole period of 13 months.
For the offence of possessing property ($1,290.00) I convict you but impose no sentence (s 10A).
The sentence is to commence on 5 August 2022.
The first date you are eligible for parole will be 24 September 2023.

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: 30 June 2023

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Judgment (23 paragraphs)

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