R v Eng; R v Ong

SURVEILLANCE 1. Surveillance was commenced on the property between 1 March 2022 and 20 March 2022. Eng and Ong were observed to attend the property on ten occasions. On every occasion they attended the property, they were observed to be wearing bum bags. 2. On all except one occasion, where Ong arrived after Eng. Ong and Eng attended the property together and exited some hours later. The shortest period they attended for was 2 hours and 25 minutes, and the longest was 10 hours and 5 minutes, the average period of time being 4 hours and 12 minutes. Both Ong and Eng unlocked and locked the driveway gate to the property, but it is Eng who did this the majority of the time. 3. On 21 March 2022, Ong and Eng attended the property at 3:20 PM. Eng unlocked and locked the gate and was carrying a white and green plastic Woolworths bag. At 5:45 PM, Eng exited the property alone. He no longer had the black bum bag he had been wearing when entering. 6 minutes later, Eng re‑entered the gate, followed by Pham and closed and locked the gate behind him.

SEARCH WARRANT 1. On 21 March 2022, investigators applied for and were granted a crime scene warrant to search the property. 2. At 5:55 PM, police approached the driveway and gate of the property and used bolt‑cutters to remove the locked padlock attached to the gate. 3. After walking down the driveway on the northern side of the property, they assessed a metal door on the western side as the best point of entry. Upon announcing their office and receiving no response, the officers attempted to open the door. 4. During the attempt to open the door, people were heard running across the metal driveway roof. An officer looked up and saw Pham running across the roof and yelled at him to stop and get down. Pham stopped briefly as he looked down onto the driveway before continuing to run. Pham then climbed over the fence of a neighbouring property and onto a balcony before running out of sight.

ARREST OF ENG, ONG, AND PHAM 1. An officer then observed Eng and Ong running across the roof of the driveway and shouted at them to stop. Eng and Ong looked down onto the driveway and paced back and forth on the roof. An officer directed them to sit, and Eng squatted down while Ong started to walk back across the roof in the direction he had come from and out of sight. An officer directed Ong to come back into view and he complied and walked back to where Eng was sitting. 2. Several officers climbed onto the roof and Ong and Eng were arrested. Before being arrested, Eng dropped a pair of latex gloves he had been holding onto the roof. The gloves were then seized. A set of keys were found on Ong, one of them being the key to a Honda vehicle, later found parked on Forest Road. Pham was arrested a short distance away on Hudson Street, Hurstville. 3. Ong and Eng were conveyed to Kogarah police station and provided with the assistance of a Mandarin interpreter. Both consented to photographs and buccal swabs being taken by police.

SEARCH OF THE PROPERTY 1. After police gained entry to the property, a walk‑through was conducted which revealed that the entire property had been converted for the purpose of growing cannabis plants by enhanced indoor means. This included the portioning of the property using plasterboard into six grow rooms and the installation of lights, fans, ventilation, and filters. 2. During the search warrant 742 cannabis plants, of which 518 were under 1 metre in height, and 224 were above 1 metre in height, were located. The cannabis plants were located in each room as follows: Room one, 229 plants. Room two, 289 plants. Rooms three, four, five and six, 56 plants in each. 3. During the search, the following items were seized from the property: 1 water pump tap, 223 x light globes, 273 x light shades, 18 x light fittings, 55 x light bulbs, 3 x power boards, 1 x irrigation hose, and 14 x transformers. 4. Footage taken during the execution of the search warrant recorded a number of other relevant items in the property, including:

• A quantity of distinct types of fertilisers including Rhizotonic, Canna PK13/14, Super Bud Aussie Magic Grow Juice, Canna Coco, and Cannazym.
• BlueLab truncheon nutrient meter.
• Clonex propagating gel.
• HydroCorn single hydroponic substrate.
• Hydro Breeze fan - fans specifically designed for hydroponics - installed on the walls.
• A number of water bins.
• Backpack fertilizer sprayers.
• Stacks of black plant buckets.
• Charcoal filters.
• Numerous bamboo stakes. 1. Rooms 1 and 2 contained younger cannabis plants in black pots. Functional Hydro Breeze fans were installed on each wall and were in operation at the time of the search warrant. Grow lamps, charcoal filters and extract fans were installed in the ceiling. The Agreed Facts contains photos of the plants in situ. 2. Some of the pots in room 2 were labelled by hand with what appears to be the name of the strain of cannabis including "Animal Tree," "Kosher Kosh," and "Bannana Runts". 3. Rooms 3, 4, 5 and 6 contained more mature cannabis plants staked with bamboo, grow lamps and ventilation installed in the ceiling, reflective film adhering to the walls. Rooms 3, 4, and 6 had an irrigation system present. Photographs are included in the facts of the crop, the lamps, and the irrigation system. 4. There were a number of power boards and ventilation equipment set up in the space above the grow rooms. 5. An inflatable mattress was also located in the middle of a small room on the southern side of the property that overlooked a room where cannabis was being cultivated.

PERSONAL ITEMS OF ONG 1. A set of keys were found on Ong upon his arrest. One of the keys was found to unlock a black Honda vehicle, number plate DC93GE parked on Forest Road. A length of black tubing was found in a black garbage back in the boot of the car.

PERSONAL ITEMS OF ENG 1. A black bum bag that Eng was seen wearing in the surveillance video on each occasion was found in the rear hallway of the property. Its contents included Eng's Malaysian passport and car keys, which were later found to unlock a silver Toyota Camry, number plate BPT96T, parked on Forest Road. 2. Registration papers found in the vehicle note that the vehicle was registered to a Rafat Reyad Mustafa Yacoub. A printout of Eng's Covid‑19 digital certificate was also found in the vehicle, as well as a mobile phone. 3. There is no evidence Eng and Ong were the principals of the operation; their role was that of crop‑sitters. 4. Eng and Ong were not the owners nor lessees of the premises. 5. Eng and Ong were not named on the utility bills. 6. There is no evidence that they set up the premises or financed the operation.

1. The agreed facts as set out include at para 26, "There is no evidence Eng and Ong were the principals of the operation, their role was that of crop‑sitters." I express my view that is entirely inappropriate for the parties to attempt to bind the Court to the role of an offender by way of including it in agreed facts. It is always appropriate and welcomed for the parties to make submissions as to the role that should be found by the Court based on the facts, but it is my view, not appropriate to include the role as an agreed fact.
2. It is well proved that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge's sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts, even though they may be agreed, Chow v DPP (1992) 28 NSWLR 593 (per Kirby at 606), and R v Uzabeaga [2000] NSWCCA 381 (per Bell J at 34) as referred to in Nguyen v R [2015] NSWCCA 268 at para 45. However, in this matter, having given consideration to all of the relevant evidence to the role of the offender, I accept that each of the offenders can be referred to appropriately as "crop‑sitters". That is, there is no evidence which would suggest they had any greater role.
3. This might in general be referred to as a typical case in relation to the cultivation of cannabis by enhanced indoor means, where the principals remain unknown as well as those responsible for renting or leasing the premises or installing or reconstructing the premises for the purposes of growing a crop.
4. There is a constant stream of like‑matters that come through this Court on a regular basis. Most of the persons charged in relation to such offences are usually referred to as "crop‑sitters", they do not participate in records of interview and they do not give evidence and fail to disclose anyone more responsible than them for what happened, and the evidence against them is generally limited to observations from police officers as to when they visited the premises from time‑to‑time.
5. It is evident that those who are engaged for the purpose of crop‑sitting or cultivating the crop are generally drawn from members of the public who are middle‑aged, have no previous convictions and can anticipate accordingly that there will be a considerable degree of leniency in the sentence imposed. I note in that regard that according to the statistics available via JIRS, despite the fact that 20 years is the maximum sentence and there is a standard non‑parole period of 10 years, no case referred to in the statistics has resulted in any individual receiving, whether on a plea of guilty or not, a head sentence in excess of the standard non‑parole period of 10 years.
6. As these cases are so consistently before the Court, it is apparent that the sentences imposed do not provide general deterrence; however, the offenders must be sentenced on the basis of what they did and their role taking into account sentencing principles and the outcome range.
7. The number of plants is, of course, a very relevant factor in relation to this offending. 200 or more plants constitute a large commercial quantity, as provided by the legislation. In this matter, there were 742 plants, that is, accordingly, more than three times the large commercial threshold of 200 plants. There is, of course, no upper limit. 742 plants are in my view a very significant quantity.
8. The premises had been converted by way of the construction of separate rooms and the installation of lights, fans, insulating materials, ventilation filters and transformers. There is no reference contained in the facts to the possible value of the set‑up, but it is consistent with a very substantial operation at considerable cost. Clearly, considering the stages of growth, this was to be part of an ongoing process where seedlings or cuttings would be used to propagate plants, which would move through the system until mature enough to harvest. No potential value is provided for the crop, but clearly, on maturity, it would be of a substantial nature.
9. I note, of course, that these offenders did not own or lease the premises and they were apparently not named on the utility bills, and that there is no evidence they were responsible for the initial set‑up or financing of the operation. However, as the "crop‑sitters", they were performing a vital role. It would have only been from their efforts, unless they were replaced by others from time to time, that the plants would have reached maturity and then been able to be distributed into the community. This is a prime example of organised criminal activity, although, the offenders' role was limited in the sense that I have suggested.
10. I note in each case that they come within the usual circumstances I referred to earlier in that they are middle‑aged. Mr Eng at the time was 44 years of age, Mr Ong at the time was 52 years of age. Neither has any previous criminal history. Neither participated in a record of interview nor provided any assistance to the police at any time with the exception that Mr Ong, through his solicitor, Ms T Mai Pham of AKN and Associates, wrote to the authorities on the 30th of November 2022 indicating that Mr Ong wished to provide assistance, as had been raised by me in the proceedings on Friday 25 November 2022.
11. Her email communication apparently received no response until the 10th of February 2023, when Constable Pietermsa responded, stating: "I have received no application from the ODPP in this matter that Ong may want to provide assistance to police, they always give persons the opportunity to debrief after all formalities on the date of their arrest and was told by the ODPP that the presiding magistrate may have prompted this idea with Ong on a previous mention date."
12. That was in fact me on the sentence date. He continues, "New South Wales police will not be seeking to meet with him to gain information from him at this time unless the nature of the information can be provided by your office. Please contact, and we can discuss."
13. The response from Ms Pham two days later, on 12 February 202,3 was as follows: "I think Mr Ong would like to tell you about Pham who was also arrested the same time with him. Kind Regards."
14. As I have referred to. the facts indicate that Mr Pham was in fact arrested in the vicinity of the premises at the same time or approximately the same time as the two offenders. Having been released from custody on bail, he has absconded. There is really no information provided by Ms Pham as to what information Mr Ong can provide which would have been of any relevance to the police investigation in respect of Mr Pham, and accordingly, there can be no assessment as to the value of any such information because none has been provided. I will, however, take it into account as being some indication that Mr Ong is remorseful and has made some offer, albeit of what would appear on the facts to be entirely limited utility, even if given, in my view.
15. Even though their presence at the premises was only detected on a small number of occasions, it is appropriate to find that this matter falls towards the mid‑range of objective seriousness, taking into account all the matters that I have previously referred to.

SUBJECTIVE MATTERS

1. In respect of Mr Ong, before the Court is a psychological report by David Green, dated 21 November 2022, a medical report from Dr Wei Chen Luo, dated 10 November 2022, a letter of apology to the Court from the offender, dated 18 September 2022, and a reference letter from his friend Khee Yang The, dated 18 October 2022, as well as a Sentencing Assessment Report under the hand of Kevin Bentrup, Community Corrections Officer, dated 25 October 2022, the offender's criminal history, and his custodial history.
2. In respect of the offender Eng, before the Court in respect of subjective matters is a psychological report from Dr Christopher Lennings, dated 14 October 2022, a letter of apology from the offender, dated 24 November 2022, and a reference letter from a friend, Cok Leong Tan, dated 23 November 2022, as well as his criminal history and custodial history, and a Sentencing Assessment Report under the hand of Kristina Aird, a Senior Community Corrections Officer, dated 1 November 2022.
3. In each case, subjective matters are drawn from the material I have just referred to. I note, of course, in relation to all information supplied to either psychologist or either Community Corrections Officer that it was supplied entirely by each of the offenders, and there is no independent material to support any of the assertions by either of them.
4. In respect of Mr Ong, the psychologist referred to him as "a difficult man to interview, his answers to my questions were sometimes vague and indirect, he provided a paucity of information." Although, the psychologist did not form the opinion that he was being deliberately misleading. The psychologist went on to refer to: "He was raised in a remote fishing village on an island in the north of Malaysia, he had a couple of attempts at spelling the name of the island but the internet search of the names I was provided did not produce a result."
5. He said initially he had six siblings but then corrected himself to say that he had 4 brothers and 1 sister and that including him there were 6 in the family. He was said to have come to Australia in 2012 to improve his life; he came to Australia on a 3‑month tourist visa but remained without a valid visa thereafter. He is said to have a wife and 3 children in Malaysia; 1 daughter aged 19 years of age, studying history at university, a son, 15 years of age, and an 11‑year‑old daughter.
6. As he has been in Australia continuously since 2012 and all of his immediate family remained in Malaysia, it is obvious he has very limited contact with them as a matter of choice. He is said to have injured his back when working in Singapore before coming to Australia and to be diagnosed with lower back pain of a chronic nature. The report from Mr Luo indicates that he has consulted him on some 53 occasions between May 2012 and March 2022. It is said to include, "injuries to his lower back, elbow, knee, wrist, and so on."
7. He explained his participation in the offence arising from the fact that he had lost work during the Covid lockdowns, borrowed money from a friend at work, and was eventually introduced to the work at Hurstville, cultivating the crop, and understanding that cannabis was being cultivated in the factory, and that he knew it was against the law to do so, but he was desperate for money when he decided to involve himself in the offence.
8. He informed the psychologist that he was cleaning in the factory and watering the plants and was at the factory for several hours at a time. That is, he provided no more information to the psychologist than was already evident from the police facts and surveillance. He informed the psychologist that his relationship with his wife had broken down, although the psychologist opined that it appeared to have been in difficulty before he came to Australia. She apparently now wants a divorce.
9. The psychologist, without testing him, assessed him as being below average in intellectual functioning on the basis of what appeared to be his way of communicating during the interview with a limited vocabulary and a poor memory for events and dates with what appeared to be poor comprehension. The psychologist diagnosed him as suffering from a major depressive disorder of moderate severity and a generalised anxiety disorder also of moderate severity and noted that the offender had referred to contemplating suicide; although he had not endeavoured to do so.
10. The offender is now approximately some 53 years and 6 months of age. He has no prior history of anti‑social behaviour, and I note that while currently incarcerated there is no evidence of any institutional misconduct. Although he can speak English, it is limited. And although there is no independent evidence, I accept that he comes from a relatively impoverished background, which is typical of those who are hired to carry out tasks such as this. He apparently did not excel in school, and as I have referred to, he appeared to the psychologist, without testing, to be below average intellectual ability.
11. I accept the psychologist's opinion that his overall risk of reoffending is low, which is not inconsistent with Mr Bentrup's assessment of his risk of reoffending as being medium‑low. I note that Mr Ong is an unlawful non‑citizen and will be subject to detention under s 189 of the Migration Act 1958 upon release from custody. However, that is a matter that is irrelevant to the sentence to be imposed. There is no particular evidence as to how much he was being paid or was expecting to be paid in relation to his role, but clearly, he was not doing it for no reward, and was fully aware of the fact that he was cultivating cannabis in the particular circumstances of his ongoing attendance at the premises.
12. I accept that during the time that he has been in custody, Covid has been circulating within the prison system and has frequently resulted in prisoners, whether serving on sentence or on remand, being held in conditions more restrictive than the usual. I note that Covid continues to be a problem in the community; although its impact seems to be reducing in terms of the effect on individuals. However, it can be anticipated that any further time in custody, will be marred by the future need for isolations and or lockdowns.
13. As to Tan Chee Eng and subjective matters, I note that he is now approximately 45 years and 9 months of age and was 44 at the time of the offending. He came to Australia in 2017. He is divorced and has no children. He claimed to the Community Corrections Officer that he was initially unaware that cannabis was an illicit substance, being unfamiliar with this drug, and by the time he realised his involvement in illegal activity, it was too late. I note, again, that Mr Eng did not give evidence on sentence, and he must have realised what he was involved in at the very latest on the first occasion that he attended the premises.
14. In my view, it is most unlikely that he would have been taken to those premises for the prospective job in the absence of being provided with information as to what the job was to be. Those involved in significant enterprises such as this do not want to expose themselves by taking along someone to the premises who has not already agreed and might decide to go to the authorities. In my view, he is simply trying to diminish his participation and moral culpability.
15. He referred to the offence being presented to him as a job opportunity, where he could receive wages plus accommodation, in exchange for his involvement. Again, as I have said before, he has provided no evidence as to exactly what he expected to obtain by way of his engagement, but considering what he would have observed at the premises, he must have expected some substantial reward for his participation in a very serious criminal offence, which, as I have said, he must have appreciated at the very latest from the moment he first arrived at the factory premises.
16. He was assessed by the Community Corrections Officer as being a medium‑low risk of reoffending. He informed Dr Lennings that he developed a gambling problem, or re‑developed a gambling problem while in Australia in relation to poker machines and borrowed money from friends that he could not pay back, and in those circumstances, he had then been introduced to his role as a crop‑sitter to pay off his debts and have a place to live and be able to eat. He informed the psychologist, "He knew he was doing the wrong thing by agreeing to this proposition. He said at first, he was suspicious of the offer, and then by the time he got to the property and realised they were growing cannabis, it was too late to back out."
17. He gives no explanation for why it was too late to back out. Having attended once there was no need for him to ever attend again unless, as I have suggested, on the first time that he attended it was with knowledge of what the task was to be.
18. Like Mr Ong, he is a Mandarin speaker, having been born in Ipoh, Malaysia. He is the youngest of 4 children, with 3 older sisters. He claims during the past to having remitted money for his mother's daily expenses, and that his childhood was marred by poverty, his father being a house painter who had a gambling problem, and his mother selling noodles in the street. His father had a gambling problem, to which he exposed Mr Eng.
19. He was apparently a reasonable student at school but could not keep up with the work and began looking for employment at age 15 and obtaining work as an auto‑mechanic without training. Apparently, he worked for a year in that role then travelled with an uncle to "do some business" in Kuala Lumpur, where he spent 3‑4 years and had some savings as a result. It was after that period of time that he began gambling.
20. After his uncle went bankrupt, he returned to the family and carried out some business in the local markets selling seafood at a store, which he continued to do until he was 31. It was then that his gambling became a problem and he immigrated to Australia in the hope of finding a job and making some money. He came to Australia and apparently worked as a kitchenhand in various restaurants and maintained that role. He was infected with Covid while in custody and claims to have some ongoing fatigue as a result, and to have experienced sleeping problems and pain in his back. He was introduced to alcohol in his twenties and had some difficulty with respect to alcohol after having some success in his personal business prior to coming to Australia.
21. He claims to have been able to abstain appropriately after coming to Australia for approximately 4 years, but then his alcohol use crept up and he resumed to gambling. He has never sought any treatment for his gambling. He had used ecstasy and ketamine while in Malaysia, but not in Australia. He reported feeling depressed and anxious, but depression and anxiety are frequently the result of offenders being in custody, particularly while awaiting resolution of sentencing.
22. In neither case (of Mr Eng or Mr Ong) does their past history raise any relevance in terms of the factors referred to in Bugmy, nor does their past history reduce their moral culpability in relation to this offending. In Tran v R [2018] NSWCCA 220 at 79 it was said that in relation to offences concerning the hydroponic cultivation of cannabis crops, "It may be seen from the second reading speech that the mischief to which the 2006 legislation was directed included the suppression of organised criminal activity, whereby extremely valuable cannabis crops could be cultivated in residential or commercial premises in urban areas utilising hydroponic cultivation measures and illegally diverted electricity. The legislation was directed at suppressing a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities. ..."
23. In this matter, the premises were a large, industrial property on the edge of the Hurstville CBD. It was also said in Tran at [158] that in respect of such offences concerning the cultivation of prohibited plants, "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 the offending conduct ... Persons who commit these offences do so for the purpose of substantial financial gain and there is a significant level of organisation involved concerning the selection and use of both residential and commercial premises for these illegal purposes."
24. That quote was more directed to the circumstances of Tran which involved an offender who performed the role of finding and leasing commercial factory‑type premises in the Sydney Metropolitan area on a number of separate occasions, as well as cultivating a crop in the basement of his own house, where he lived with his wife and child. It is the only case that I am aware of where the head sentence on a plea of guilty actually exceeded the standard non‑parole period provided by the legislation. R v Tran, Tony [2017] NSWDC 397. But it was effectively a sentence in respect of, from memory, 6 large commercial crops and 1 commercial crop.
25. Nonetheless, general and specific deterrence are important in relation to matters such as this, particularly in the circumstances where the principals hide behind, in effect, the prior good character of those that they employ to carry out the offence by attending the premises on a regular basis to look after the crop; to water it, to fertilise it, to propagate further plants, and indeed, in the usual course, to harvest the mature crop.
26. The comments that I made in relation to Covid apply to each of the offenders, acknowledging that their time in custody so far, from the date of their arrest, will have been in harsher circumstances than what otherwise would have been the case and also in circumstances where they are largely away from their family and friends.
27. In each case, there is a letter tendered from a friend, which I have referred to previously. In each case, that has been taken into account, but they are, in my view, frankly of little weight. I have taken into account in respect of each of the offenders all of the matters to which I have so far referred. I have given consideration to what is an appropriate sentence to reflect what they did as crop‑sitters lending their assistance to a serious criminal operation, which can be referred to as an organised criminal activity and noting that both general and specific deterrence are important.
28. Although I accept in relation to each of the offenders, that they are at least a low to medium risk of reoffending; I would suggest that a low risk would be a more appropriate description, considering their age and past history. Taking all of those matters into account, I have determined a sentence for each; although there is an approximately 8‑year difference in age between each of them, I can find no real distinguishing feature. Accordingly, I will impose the same sentence in respect of each of the offenders.
29. That is, a term of imprisonment with a total term, after the 25% discount, of 4 years and 6 months, and I will provide a non‑parole period of 3 years, having found special circumstances in order to ensure that there is at least 18 months of potential parole. The sentence will commence on the date that they were arrested, as they have been in custody continuously since that time. So, the non‑parole period of 3 years will start from the 21st of March 2022, and they will be first eligible for parole on the 30th of March 2025. The balance of term is 1 year and 6 months, and the total sentence of 4 years 6 months will expire on the 20th of September 2026.
30. Mr Ong and Mr Eng, while it is possible that you will be released at the earliest possible time, which is the 20th of March 2025, that is, in fact, a matter for the authorities to decide. If you behave yourselves while in custody and make a full effort to rehabilitate yourselves, then it is likely that you will be released at the earliest opportunity. But if you commit breaches of prison discipline, then you can expect that you will probably not be released at the earliest possible time, which I will repeat for your benefit is that the expiry of the non‑parole period is the 20th of March 2025. Now, is there any significant matter that I have omitted or any error? CUNNINGHAM‑BURKE: No, your Honour. O'CONNOR: No, your Honour. HIS HONOUR: All right. CHOI: No, your Honour. HIS HONOUR: Thank you. All right then, I'll adjourn. O'CONNOR: Your Honour, may I just seek your permission to have the use of the Court interpreter to have a short conference? HIS HONOUR: Yes, certainly, no problem, Mr O'Connor. O'CONNOR: Yes, your Honour.

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