Mr R Keller (Counsel for the offender)
File Number(s): 2020/125670
[2]
Judgment
Nam Son Dinh arrived in Australia from Vietnam on a student visa in 2014, aged 20. He says that he stopped studying because his family could not afford to continue paying his fees. He has been employed since then. He is, according to the Australian Border Force, an unlawful non-citizen and he is liable for immigration detention upon his release from custody and likely to be ultimately deported, but that, of course, is not of any relevance in the sentencing process.
He pleads guilty to one count of cultivating a prohibited plant in excess of the large commercial quantity, namely 2,441 cannabis plants contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period ten years. The maximum penalty and standard non-parole period are important yardsticks in the sentencing process, as are the purposes of sentencing to be taken into account under s 3A of the Crimes (Sentencing Procedure) Act 1999.
There is a related offence on s 166 certificate of possessing 9.1 grams of cannabis. I will deal with that offence pursuant to under s 10A of the Crimes (Sentencing Procedure) Act 1999.
Nam Sun Dinh has been in custody since his arrest on 27 April 2020. It is acknowledged by Mr Keller that a term of full-time custody is required, and that the term should commence on that date.
There are a number of co-offenders whose matters have not yet been dealt with.
The plea of guilty was entered in circumstances justifying 25% discount for the utilitarian value of the plea.
The offending concerns a rural property of almost 400 hectares at Ballymore. The property was in remote bushland with a small house and various other sheds and caravans. It was under police surveillance from August 2019 till April 2020. The property was purchased by Mr Vu. Following the purchase 13commercial grade greenhouses were installed, each measuring about 100 metres by 40 metres.
Mr Dinh was observed on numerous occasions going to Bunnings at Bonnyrigg with two other co-accused and making several purchases between 31 January 2020 and 10 March 2020. They purchased items that were clearly used in a cultivation operation.
Police had the property under surveillance on 19 April. They saw movement inside the greenhouse and cannabis growing there. Mr Dinh and others were seen coming out of the greenhouse.
On 26 April police were again watching the property. Mr Dinh was seen walking out of the greenhouse to the rainwater tanks and returning to the greenhouse.
On 27 April, at about 7.30am, Dinh went into the greenhouse. Shortly after police approached and yelled out "police search warrant". Seven of the accused were arrested, one of them managed to escape. Dinh was searched by police. They found a mobile phone and 9.1 grams of cannabis, which is the subject of the s 166 certificate offence.
Inside the greenhouse there were 2,441 cannabis plants between 30 and 40 centimetres in height and 427 kilograms of cannabis leaf, as well as a number of items apparently used in the cultivation operation.
The offender participated in an interview. He made the following admissions:
That he was working in greenhouse with the drugs on 27 April,
He said, "They told me to come and grow the plants and weed the flowers,"
The plants were "already big" when he arrived so he only watered them and then he took the flowers off the plants.
He said he only got paid once. But then he said he hadn't been paid, but he was told he would be paid $50,000 after harvesting the flowers.
He said, "They say that if the plant has flowered I have to collect them all, I don't know how, how much, how many, I don't know, I just have to harvest them all" in order to be paid. He said he had been to the property and watered the plants four times, once with his uncle and other times by himself.
He said there was a man called "Duc" who was in charge of the operation.
His uncle was the one who told him to go to the property.
He did this because he lost his job during COVID and his family in Vietnam could not support him.
He did not know how many plants were there, but he thought there were about 500 plants.
He said that 26 April was the first time he had harvested the plants.
The Crown acknowledges in the agreed facts that apart from the additional trips to Bunnings, to which I have referred, there is no evidence pointing to Dinh having any wider role in the enterprise than he admits in his interview.
He has no criminal record and his custodial record shows that he has been a model inmate.
In talking to the author of the sentence assessment report he made no attempt to dispute the facts and attributed his offending behaviour to the financial hardship he was experiencing at the time. He expressed regret for his actions. He said that as an illegal immigrant he found it difficult legal employment and he felt that he had no other options. He knew that his behaviour was unlawful but he did not understand the severity of his actions. He acknowledged the impact his behaviour had on the community and his family. He was assessed as being of a low risk of reoffending.
The defence sentence bundle includes a lengthy letter from Mr Dinh to the Court, in his favourable custodial records and a letter of support from his girlfriend and from his girlfriend's best friend. They all speak uniformly of his prior good character. He says he spent the first 12 months in custody as a maximum A2 inmate at Wellington which opened his eyes to the effect drugs can have on the community. He said it is a very violent place and almost all the violent incidents were caused by drug debts and people under the influence of drugs. He said:
"I understand that these inmates' addiction to have started from my actions and my crimes and I'm very sorry for the damage I've caused to the community and the family and the loved ones of people who do do drugs."
He got employment at the print shop within a month of arriving at Wellington and has been in regular employment both there and at the MRRC.
Although untested and not adopted in evidence, I see no reason not to accept his expressions of remorse and regret. He acknowledges that he will be deported back to Vietnam and he wants to make sure he is a positive influence in the community for the rest of his life.
As the Crown points out, when looking at objective seriousness, this was a large, significant commercial operation and the role of the offender has to be considered. I have indicated the trips to Bunnings and the admissions that have been made which outline his role. The suggested promise of $50,000 upon harvest suggest a bit more labour than conceded, as submitted by the Crown, but one cannot discount the possibility that his employers exaggerated his wage. The Crown acknowledges that there is some support to his assertion that he was inveigled into the enterprise by his uncle who was a co-offender participating at a much more significant, managerial role. He was not far from what was described as a "crop sitter" or a "foot soldier" by Berman DCJ in R v Duong; R v Phan [2016] NSWDC 414.
As to aggravating factors, it was clearly part of a planned criminal activity over a number of months. The Crown helpfully points to three particular cases as alleged comparators and provides the statistics and a lengthy extract from the Public Defender's website.
The parties are also aware of sentences that I imposed in not dissimilar circumstances of commercial cultivation involving people in a similar position to that of Mr Dinh. Those cases included R v Huat [2021] NSWDC 87, R v Tan [2021] NSWDC 355 and R v Choo [2021] NSWDC 351 dealt with this year.
Mr Keller acknowledges that the maximum penalty, and of course the standard non-parole period, reflect the position of the legislature; that commercial cannabis cultivations are to be dealt with very seriously. He notes that there is insufficient evidence to make a finding that the cultivation was by enhanced indoor means, which is a more serious offence, but I accept his submission that overall this offending is well below the midrange of objective seriousness for offences of this kind, and that whether one describes him as a "crop sitter", "foot soldier", or a "hired labourer" in the low range, is an important factor to be considered.
I accept that there is a low risk of reoffending and I accept his expressions of remorse. His prospects of rehabilitation are good, given his excellent performance while in custody, and I acknowledge that he has family support.
I acknowledge that his time in custody has been much harsher than pre‑pandemic and the restrictions in the custodial environment as to visitation, courses and extended lockdowns and periods in isolation have significance in determining the appropriate sentence.
I accept that there is a clear basis for a finding of special circumstances given that this is his first time in custody, and by virtue of his relative youth.
The orders that I will make are:
[3]
Sequence 2 Cultivate prohibited plant >= large commercial qty
1. The offender is convicted of the offence.
2. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 28 months, to commence on 27 April 2020.
3. I impose a non-parole period of 18 months, expiring on 26 October 2021.
4. I find special circumstances.
[4]
Sequence 4 Possess prohibited drug
1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and I impose no further penalty.
[5]
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Decision last updated: 15 December 2021