Each of the two offenders, Anh Vu Hoang and Trong Dung Bui, appear today for sentence. They appear in relation to one principal offence each, being that they cultivated a prohibited plant by enhanced indoor means, namely cannabis, which was not less than the small quantity defined by the Act but less than the commercial quantity: in contravention of s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW). Those offences were committed by the offenders at separate premises.
The maximum sentence for this offence is 15 years' imprisonment and/or 3500 penalty units: s 33(2)(b) of the Drug Misuse and Trafficking Act 1985 (NSW). There is no standard non‑parole period for this offence.
R v Hoang; R v Bui [2021] NSWDC 299 | Case summary | Zoe
In addition to their principal offences, both offenders have requested that the Court take into account Form 1 matters, being:
1. Pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for possessing a prohibited drug, namely 24.5 grams of cannabis;
2. Pursuant to s 23(1)(a) of that Act, for cultivating a prohibited plant, namely 113 cannabis plants at an address on Weigand Avenue in Bankstown, NSW ("the Bankstown property"); and
3. Pursuant to s 64(1) of the Electricity Supply Act 1995 (NSW), for the use of electricity without authority.
The first and second offences above on each Form 1 took place at the same address where the co‑offenders resided. The third matter on each Form 1 was the same offence but committed by the offenders at different premises, namely the place where they respectively committed their principal offences.
Both of the offenders were arrested on 25 March 2020. The offender Hoang has remained in custody since that date, whereas the offender Bui was initially in custody but was later released on bail on 9 March 2021. For completeness, I note that the offender Hoang was granted bail on 23 December 2020, although has not been able to meet it.
The offenders each entered pleas of guilty to the principal offence charged at the earliest opportunity, following which they were committed for sentence. The Crown accepts that both offenders are entitled to a 25% discount off their sentences for these early appropriate pleas of guilty.
[2]
FACTS
The facts below are taken from statements of agreed facts and apply to each co‑offender.
In 2019, as part of an investigation by Strike Force Richie into the activities of a drug supply syndicate, the NSW Police Organised Crime Squad lawfully intercepted mobile phone services which they identified as belonging to the co‑offenders. These intercepts included recorded conversations in relation to the cultivation and supply of cannabis.
At approximately 6:45am on 25 March 2020, as part of the abovementioned investigation, police lawfully conducted a search of premises at the Bankstown property, which was also the residential address of both co‑offenders. During that search, police seized various items including, inter alia, the following:
1. Two trays containing 113 cannabis seedlings (which is the subject of the offenders' respective charges under s 23(1)(a) and contained within their Form 1 documents); and
2. 24.5 grams of cannabis leaf (which is the subject of the offenders' respective charges under s 10(1) and contained within their Form 1 documents).
Police also located fingerprints from both co‑offenders on numerous items located on the premises.
[3]
Police Search of the Revesby Property - Hoang
The following facts relate to the principal offence to which the offender Hoang has pleaded guilty.
At approximately the same time as the search of the Bankstown premises on 25 March 2020, police concurrently undertook a lawful search of another property at Vega Street in Revesby, NSW (the "Revesby property").
During that search, police found 90 cannabis plants and equipment for a sophisticated hydroponic set‑up. That set‑up had been engineered to bypass the electrical meter (which is the relevant fact the subject of the offender Hoang's charge under s 64(1) of the Electricity Supply Act 1995 (NSW) and contained within his Form 1). Police also found DNA matching that of the offender Hoang on a gardening glove seized from the kitchen of the Revesby property.
In addition, the police were able to capture surveillance footage of the offender Hoang at the Revesby premises.
[4]
Police Search of the Punchbowl Property - Bui
The following facts relate to the principal offence to which the offender Bui has pleaded guilty.
At approximately 10:02am on 25 March 2020, police conducted a search of a third premises located on Rossmore Avenue in Punchbowl, NSW (the "Punchbowl property").
During that search, police found 68 cannabis plants and equipment for a sophisticated hydroponic set‑up. That set‑up had been engineered to bypass the electrical meter (which is the relevant fact the subject of the offender Bui's charge under s 64(1) of the Electricity Supply Act 1995 (NSW) and contained within his Form 1). It is agreed that the offender Bui was instructed by another co‑offender (who is not the subject of this Judgment) as to how to set‑up the electricity connection to the Punchbowl property.
Following his arrest, the offender Bui's mobile phone was seized and later found to contain material consistent with his involvement in the cultivation of the cannabis plants at the Punchbowl property, such as data recording him having attended the property and cookies from websites with cannabis use and cultivation content.
[5]
The Nature of the Offences Applicable to Each Co‑Offender
For the purposes of sentencing of both offenders, it is agreed that their respective roles at each property is to be categorised as "crop‑sitters" and not principals in the syndicate responsible for the financing, design, set up and construction of the cultivation operations at the Revesby and Punchbowl properties. Whilst the agreed facts do not specify the extent to which they each attended the respective premises and "crop sat" the plants, it is plain that their involvement was more than a one off attendance at the places where the cultivation was taking place.
It is clear from the maximum penalty of 15 years for the principal offence which each of the co‑offenders has committed, that offences of this type are to be regarded as serious ones. The cultivation by sophisticated enhanced indoor means using hydroponic mechanisms is a crime which must be punished and denounced by appropriate penalties to achieve the aim of specific and general deterrence to reflect the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999: R v Nguyen [2019] NSWCCA 209 at [79].
The authorities now recognise that marijuana can have serious consequences for users with a destructive potential for the lives of young persons. This has been recognised by the legislature imposing the maximum penalty of 15 years for this offence: R v Nguyen [2006] NSWCCA 389.
Also relevant to the seriousness of the offence committed by each of the offenders are the number of plants being cultivated. In respect of the offender Hoang, there were 90 plants located at the Revesby property, whereas there were 68 plants located at the Punchbowl property relative to the offence against the offender Bui: Nguyen v R [2007] NSWCCA 94; and the sophisticated nature of the cultivation at the sites as described above: R v Godden [2005] NSWCCA 160.
Further matters to be considered when assessing the seriousness of the offending are the profit that was sought to be made by the offender: Nguyen v R [2007] NSWCCA 94; and the extent of any horticultural skills brought to the operation by an offender: R v Mangano [2006] NSWCCA 35.
A very significant matter to be weighed when considering the objective seriousness of the offence is the role played by the offender in the cultivation operation. As the Court said in R v Melikian [ 2008] NSWCCA 156 at [42]:
[42] It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]:
"What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity."
[6]
Form 1 Matters
Counsel for the offenders indicated that they wished to have these matters taken into account and had admitted their guilt with respect to them. I consider it appropriate that they are to be taken into account.
The matters in each Form 1 operate to increase the sentences that I will impose on each offender for the principal offences. This increase operates to recognise the need for personal deterrence and retribution for the offence which is for sentence: Attorney General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 140; 56 NSWLR 146.
I am, of course, not imposing a separate penalty on the offenders for the Form 1 offences. I take these matters into account as part of the synthesis required for the exercise of my sentencing discretion.
[7]
Subjective Features
The Court has received the Sentencing Assessment Report of Ms Susan Page dated 16 June 2021 and the report of Andrew Wong, psychologist, dated 9 June 2021. There was no other material placed before the Court in respect to the offender's subjective circumstances.
The offender Hoang was born in September 1982 and has two children who continue to reside in Vietnam with his parents. He immigrated to Australia in 2018 on a Protection Visa, sponsored by his brother who had a bakery in Western Sydney. However, the offender Hoang otherwise has had minimal familial support and was relatively socially isolated in Australia. As at the date of offending, 25 March 2020, he was 37 years and 6 months of age. As at the date of this Judgment, he is 38 years and 9 months of age.
The offender Hoang reported that he had a consistent employment history prior to his arrival in Australia but due to his visa status, he was financially supported by his brother as he could not work. He assisted in his brother's bakery on a voluntary basis and he was not eligible for any Centrelink payments. During the first COVID‑19 lockdown, his brother's business began to suffer. Hoang felt guilty for relying on his brother for financial support. He said he would get work in a café to support himself.
In respect to his involvement in the cultivation operation, Hoang had sought cash‑in‑hand work to ease the financial strain he had placed on his brother. He was offered employment that included accommodation in exchange for the maintenance of a property, which included the care of plants. Following an advance payment prior to commencing that work, he commenced that work and quickly realised he said the illegal nature of the operation. That is, he knew he was involved in the illegal cultivation of cannabis plants at the Revesby Property. He says that he did not want to continue his participation but was unable to repay the advance payment and was consequently forced to continue.
The offender Hoang has no criminal history and appears to have abided by Corrective Services routines since being in custody.
[8]
Objective Seriousness
As I have stated above, it is agreed that the role played by the offender Hoang at the cultivation at the Revesby Property was one of crop sitter. The Court was not further assisted with any further information about the nature of the role played by, or the extent of the involvement of the offender in, the cultivation operation.
I note that it is also agreed that whilst the number of cannabis plants located at the Revesby Property was 90 plants, the Crown cannot prove beyond reasonable doubt the offender's state of knowledge in relation to the exact number of plants, or that he was aware that there was a commercial quantity of plants being cultivated there. It is agreed, however, that the offender knew that there was close to a commercial quantity of plants being cultivated at the Revesby Property.
The offender had been "pre‑paid" for the work he was to do at the property. When he knew of the illegality of the operation, he said he wanted to leave but that he could not repay the money he had been paid in advance, so felt forced to stay. Whilst that may have been a concern of his, it is tolerably clear that despite knowing of the illegal nature of the enterprise, he continued to engage in it.
In all of the circumstances, I find that the offending falls just below the mid‑range of seriousness.
[9]
Plea of Guilty
As I have observed, the offender pleaded guilty at the first available opportunity and is entitled to a 25% discount on his sentence to reflect the utilitarian value of his plea: see s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[10]
Sentencing Principles
In approaching the task of sentencing the offender, I have had regard to the principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the need for appropriate punishment with the aim of specific and general deterrence.
The Crown submits that I should find that the offence was aggravated by virtue of it being part of a planned or organised criminal activity: see s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It submitted that whilst the degree of planning and organisation is not unusual for offences of this nature, that there is an inference to be drawn that the seedlings were grown at the offender's home with a view to moving them to a larger set up when they were of an appropriate size. The Crown submitted that if the court drew this inference, then the planning and organisation of the cultivation at the Revesby property is greater than would ordinarily be associated with an offence of this nature or for the role of a crop sitter.
There are difficulties with that submission. The first is that before I find the aggravating factor law applies, the evidence must permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be part of an offence of this kind: Knight v R [2010] NSWCCA 51. Here, there is no evidence before me which would enable me to make a finding beyond reasonable doubt that the planning of the Revesby operation exceeded that which would ordinarily be expected for an offence of this nature. Additionally, insofar as the Crown seeks the Court to draw an inference that the cultivation of the seedlings at the residence of the co‑offenders was for the purposes of moving those seedlings to a larger set up when they were at an appropriate size, I cannot accept that this is the only rational inference available from this fact. For example, it may well be that the seedlings were being cultivated by the co‑offenders at their premises for personal use or sale quite apart from the operation at the Revesby (or for that matter the Punchbowl premises). I do not accept that this is an aggravating factor.
In terms of mitigating factors, the offender Hoang has no prior record of any criminal offences (s 21A(3)(e)) and pleaded guilty at the earliest opportunity. He is entitled to a 25% reduction of the penalty to be imposed on him.
The psychologist who assessed the offender Hoang reported that he had expressed guilt and shame about the offence and was ashamed of the situation that he had put himself into, accepting that he had done the wrong thing by being part of the cultivation operation. The Crown submits that I should treat such exculpatory or mitigating histories with caution when they are not supported by sworn evidence: Lewin v R [2017] NSWCCA 65 at [26]; PH v R [2017] NSWCCA 79 at [53], [56]. The offender did not give sworn evidence here. I accept that the offender expressed some remorse and contrition to the psychologist about his involvement in the enterprise. I propose to take that into account, although I accept that the limited nature of this and the other material put before me by the offender reduces the importance of the expressions of remorse and contrition.
The offender also reported to the psychologist that he hoped to be allowed to become engaged in work in Australia once he was released and that he did not want to do anything illegal in case it affected his Visa status and forced him to return to Vietnam. The psychologist reported that there was no clinical or psychological disorder affecting the offender. Once again, the Crown submits that having regard to the nature of the material placed before the Court (or the absence of more persuasive material), I should find the prospects of rehabilitation as "guarded". The Sentencing Assessment Report finds that the offender's risk of re-offending as "medium to low".
Having regard to the comments I have made above, and to the material before the Court, including that this is his first offence and his expressions to the psychologist, I accept that in all of the circumstances the offender's prospects of rehabilitation are relatively good.
[11]
Other Matters
The Crown submits, and the solicitor for the offender accepted in submissions, that no other sentence other than a sentence of imprisonment is appropriate. Having regard to all of the circumstances, I accept that this is so and the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been met.
I have taken into account the matters on the Form 1. As I said, they will increase the sentence I impose and this serves to recognise the need for personal deterrence and retribution for the offence for which the offender is sentenced.
[12]
Parity
The offender Hoang is one of two offenders to be sentenced by me for the same principal offence (at different premises but otherwise remarkably similar in terms) and co‑offenders on two of the matters to be taken into account on the Form 1 (namely, the matters dealing with the seedlings and cannabis leaf at the Bankstown Property where they resided). I will apply the principles of parity in considering the sentences which I impose. I note, however, that there was relatively limited material on which I could assess the subjective features of the offender Hoang as compared to the material provided on behalf of the offender Bui. The additional material provided to the Court for the purposes of the sentencing of Bui is reflected in the slightly different sentences imposed on the respective offenders.
[13]
Special Circumstances
The offender submits that I should find special circumstances within the meaning of s 44 of the Act. He submits that this finding should be made on the basis that this is the offender's first time in custody, he has no familial support with the majority of his family still in Vietnam, he has had limited contact with his family in Vietnam (and then only by phone) and prison would have been more difficult in these COVID times.
I accept special circumstances exist.
[14]
Sentence
The offender has been in custody since he was arrested on 25 March 2020. That is 1 year, 3 months and 7 days as at today's date.
In all of the circumstances, the head sentence I impose is a sentence of 2 years and 6 months (30 months) imprisonment. With the discount for the early plea of guilty, this brings the sentence to 1 year and 10 months and 15 days (rounding it down to 22 months). Having found special circumstances, I set a non‑parole period of 16 months.
The sentence is to commence on 25 March 2020 and will expire on 24 January 2022. The first date the offender will be eligible for parole is 24 July 2021.
[15]
Subjective Features
The offender Bui attended an interview with clinical psychologist Dr Green. He is also been the subject of a sentencing assessment report. I have also had provided to me the following material:
1. Drug counselling letter from DAMEC dated 10 June 2021;
2. Urine Drug Testing reports dated 30 April 2021, 6 May 2021, 14 May 2021, 20 May 2021, 28 May 2021 and 4 June 2021;
3. Letter from Trong Dung Bui (the offender) dated 15 June 2021;
4. Reference letter from Pho Minh Temple dated 15 June 2021;
5. Reference letter from the offender's employer, Pho Mai at Parramatta, dated 15 June 2021;
6. Reference letter from the offender's employer, Crystal Car Wash Café, dated 15 June 2021; and
7. Reference letter from a friend of the offender, Mr Steven Lane, dated 16 June 2021.
From the material, it can be seen that the offender was born in in Vietnam in September 1999. He lived near the port city of Hai Phong in North Vietnam with his family, who are described as being relatively well off.
The offender completed his school studies in 2017 and then sat for university entrance examinations, gaining a place in the Maritime University in Hai Phong for a bachelor's degree in civil engineering. He did not enjoy the course, was disillusioned with study in Vietnam because of the emphasis on Communist ideology. He left university in 2018 after one year of study.
The offender Bui then worked at a karaoke bar owned by his parents, before his father asked him whether he would consider further study in Australia. This was attractive to Mr Bui, who was concerned about the focus on ideology by the Communist Party in Vietnam. He regarded his prospects as being better if he completed studies overseas. He intended to come to Australia to learn English, get a degree in Australia and return to Vietnam.
The offender Bui arrived in Australia in March 2019. Originally, he lived with a cousin and her family but he did not get along with her and subsequently moved into an apartment with the offender Hoang in Bankstown. The offender Hoang and the offender Bui's father were acquainted in Vietnam and the offender Bui had known the offender Hoang since he was a small child in Vietnam. At that time, the offender Bui was about 19 years old and he thought the offender Hoang was in his 40s (whereas he was actually in his late 30s).
The offender Bui commenced an English language course at a college in Elizabeth Street, Sydney, and then a diploma course at the Sydney campus of Latrobe University. He did not complete the diploma course. He dropped out of the course in August or September 2019 feeling lost and unsure as to what he wanted to do.
The offender Bui then became very stressed because of his inability to find direction in his life and a potential career. He was lonely and concerned about being reliant upon his parents for financial support rather than him making money in Australia and being able to send it back to them. At that point, he did not know what he wanted in life and felt under great pressure, without family support and was very stressed
Mr Green opined that, at this time, the offender Bui was suffering from depression and showed symptoms of social withdrawal, sleep disturbance, lack of appetite and poor self‑esteem. He began smoking cigarettes and using illicit drugs, mostly cannabis, to deal with his depression.
The offender Bui said that he became aware when he moved in with the offender Hoang that Hoang was involved in cannabis cultivation. He saw plants in the apartment which they shared in Bankstown which he realised was cannabis. Shortly after he moved into that apartment the offender Hoang introduced the offender Bui to smoking cannabis which became a daily habit for him.
The offender Bui was not working at this time, apart from some very brief work as a construction worker and as a waiter at a restaurant in Bankstown.
The offender became involved in the offences when offered work at the punchbowl property by the offender Hoang. He said he commenced to work there at about the end of 2019. He said that the offender Hoang said words to the effect to him that it was a safe job and if the offender Bui did it, then he would give him money to help with his living expenses. He was told that all he had to do was to clean and cut some of the plants.
The offender Bui said he did not know that Hoang was involved in any large scale or syndicated cultivation of cannabis.
After his arrest on 25 March 2020, the offender Bui spent time in custody. Once released, he commenced working at a restaurant in Parramatta and a car wash in Strathfield. He is now living with a relative in Lansvale in Sydney.
References from the owner of the restaurant in Parramatta confirmed that the offender works there, 3 days a week from 10am to 7pm. He is said to be a hard worker, trustworthy and responsible with a good work ethic and a person who gets along with other workers. The owner is aware of the charges which bring the offender Bui before the court but says that he is happy to continue his employment at the restaurant.
Reference from the manager of the Crystal Carwash Cafe at Strathfield confirms that the offender works as a car wash help on a part‑time basis three days a week from 10am to 3pm. He is said to be a hard‑working person with good ethics and completes his tasks to a high standard. He is said to be punctual and friendly with his colleagues. The manager states awareness of the charges which bring the offender Bui before the Court and confirms that he would be happy to continue to employ him at the car wash cafe.
The offender told Dr Green that, on completion of his sentence in this matter, he would like to return to Vietnam to study languages and logistics.
Dr Green diagnosed the offender Bui with Depressive Disorder - Major Depressive Disorder of mild severity. Dr Green suggested that the offender had become dependent on cannabis although was reluctant to make a diagnosis of such dependence. Dr Green opined that the offender made a bad decision by deciding to become involved in the cultivation the subject of the offence. He said it was quite likely that his judgement was impaired to a degree by his depression and by his state of being constantly intoxicated by cannabis.
I note that the offender Bui has undergone assessments for his cannabis abuse in April, May and June 2021. He has a further appointment in July 2021. The drug counsellors recommended that the offender attend a program so that issues with respect to his drug use can be undertaken.
The Urine drug test reports tendered by the offender show that, since April 2021, he has not tested positive to any illicit substances including cannabis.
[16]
Objective Seriousness
It is agreed between the Crown and the offender Bui that his role in the cultivation operation which was being undertaken at the Punchbowl property was as a crop sitter. As with the offender Hoang, there is little additional information with respect to this offender's role or the extent of his attendance at the Punchbowl property for the purposes of the cultivation operation.
The number of cannabis plants found at the punchbowl premises was 68. The Crown accepts that it cannot prove beyond reasonable doubt the offender's state of knowledge in relation to the exact number of plants, or that he was aware that there was a commercial quantity being cultivated at the property. It is agreed, however, that the offender was aware that there was at least close to the commercial quantity of cannabis plants being cultivated at the property.
The number of plants found at the property was not insignificant and part of what appears to be a significant cultivation operation. However, the agreed facts and the lack of other evidence before me suggest that the offender's involvement was not at a level which influenced the size or significance of the operation.
Taking into account all of those facts and observations, in a similar sense to that which I stated in relation to the offender Hoang, I do not consider that the offender Bui was a principal beneficiary of the enterprise from a financial perspective and what he sought to make when compared to others was minimal, in the form of payment for his services. This was in the context of him suffering from the depressive condition he did at the time and being assured by Hoang, whom he trusted, that it was safe to do the work he did.
Overall, having regard to the above matters, including the matters which apply to the nature of the offence which I regard applicable to each offender, I find that the offending of Bui is towards the very lower end of the range.
[17]
Plea of Guilty
As I have observed, the offender pleaded guilty at the first available opportunity and is entitled to a 25% discount to reflect the utilitarian value of his plea: see s 25D(2)(A) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[18]
Sentencing Principles
I approach the task of sentencing in relation to the offender Bui in the same way as I have outlined in relation to the offender Hoang: see especially, paragraph [38] of this Judgment above. I do not reiterate the entirety of the principles again at this point.
As with the offender Hoang, the Crown submits that I should find that the planned and sophisticated nature of the cultivation at the Punchbowl Property is an aggravating factor within the meaning of s 21(A)(2)(n) of the Act. I dealt with this issue in [39] above and I will not repeat that again. I do not find this as an aggravating factor.
With regard to mitigating factors, the offender Bui has no prior criminal history. He appears to have abided by Corrective Services routines.
In addition, as I have noted, the offender Bui has entered an early appropriate guilty plea and is entitled to the 25% reduction of the penalty to be imposed on him.
Overall, Mr Green considered that the offender Bui does not have significant risk factors for re‑offending and that the risk of recidivism is low. The sentencing assessment report regarded him as being of low risk of re‑offending. I note that the offender currently works at two jobs and the evidence suggests that employment will continue if he is not returned to prison. This is a matter which I consider will aid in his rehabilitation.
As for contrition, I have received a letter from the offender which speaks strongly of his remorse for his actions. He states that he is sorry to the Australian community, his family and friends, and to himself, for becoming "the person I thought I would never become". I accept that the offender is sincerely contrite for his actions.
I accept that the offender Bui is of very low risk of offending again and has good prospects of rehabilitation.
There is also a character reference from a Mr Lane, a friend of the offender. He speaks about the change that came over the offender once he began associating with his new house mate (Hoang), which included a loss of motivation. Mr Lane lost contact with Bui. He was shocked to learn that Bui had become involved in the cultivation of cannabis. Contact with Bui resumed who opened up to Mr Lane on the circumstances of his offending. Mr Lane notes changes for the better in Bui since he has been on bail, including his attendance at drug counselling and how sorry he is for his actions. Mr Lane in fact posted the surety for Mr Bui's bail.
[19]
Other Matters
The Crown submits that no other sentence other than a sentence of imprisonment is appropriate. This was conceded by counsel for the offender in submissions. I accept that this is so and the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been met.
I have taken into account the matters on the Form 1. As I said, they will increase the sentence I impose and this serves to recognise the need for personal deterrence and retribution for the offence for which the offender is sentenced.
[20]
Special Circumstances
The offender submits that I should find special circumstances within the meaning of s 44 of the Act. He submits that this finding should be made on the basis that this is his first time in custody, he has no familial support with all of his family still in Vietnam, he has had limited contact with his family in Vietnam and prison would have been more difficult in these COVID times. He also points to his youth and the issues this presents whilst being in custody.
I accept special circumstances exist.
[21]
Parity
I reiterate the comments which I have already made in relation to parity. I do not repeat them here, save to say that the sentencing court can only properly exercise the sentencing discretion and the synthesis required based on the material before it, including that placed before it by the offender. Even where the offences may, for all intents and purposes be the same, where there is material for one offender which enables the Court to have regard, or give more weight, to matters going to the objective features of the offending, the offender's subjective circumstances or to matters of mitigation specified in the Act, which material is not present or as extensive for the other offender, there may be a justifiable difference in the sentences imposed on the respective offenders. After all, both offenders are before me for sentencing so I can consider the interrelationship between the objective and subjective features of the offenders in an overarching way: Usher v R [2016] NSWCCA 276 at [73]. That can only be done on the material placed before the Court.
In this case, the difference in the lengths of the sentences I have imposed on the offender Hoang, and will now impose on the offender Bui, is explained at least in part on the difference in the material I have had put before me together with a consideration of the differences in the offenders' age and the circumstances of their offending.
[22]
Sentence
This offender was also taken into custody on 25 March 2020, although was later granted bail on 9 March 2021. That totals 11 months and 13 days (349 days). Having regard to all of the circumstances I have identified above, including his youth, the minimal role of the offender in the operation, the fact that it is his first offence, his remorse and his prospects of rehabilitation I would have imposed for this offender a head sentence of 2 years (24 months). Allowing for the discount of 25% for the early guilty plea, this would result in a head sentence of 18 months.
Having found special circumstances, I impose a non‑parole period of 11 months.
I therefore backdate the sentence to allow time served in custody so that the commencement date is 17 July 2020. The sentence expires on 16 January 2022.
The first date that the offender became eligible for parole was 16 June 2021.
[23]
ORDERS
In relation to Anh Vu Hoang, the orders I make are as follows:
1. For the offence of knowingly cultivate a prohibited plant by enhanced indoor means, namely cannabis, which was not less than the small quantity defined by the Drug Misuse and Trafficking Act 1985 (NSW) but less than the commercial quantity, the offender, Anh Vu Hoang, is convicted.
2. Taking into account all Form 1 matters, the offender is sentenced to full‑time imprisonment for a term of 22 months, with a non‑parole period of 16 months. That sentence is backdated to commence from the date which he was taken into custody, being 25 March 2020. The head sentence expires on 24 January 2022 and the non‑parole period expires on 24 July 2021.
In relation to Trong Dung Bui, the orders I make are as follows:
1. For the offence of knowingly cultivate a prohibited plant by enhanced indoor means, namely cannabis, which was not less than the small quantity defined by the Drug Misuse and Trafficking Act 1985 (NSW) but less than the commercial quantity, the offender, Trong Dung Bui, is convicted.
2. Taking into account all Form 1 matters, the offender is sentenced to full‑time imprisonment for a term of 18 months, with a non‑parole period of 11 months. That sentence is backdated to take into account time already served and will commence from 17 July 2020. The head sentence expires on 16 January 2022 and the non‑parole period expired on 16 June 2021.
3. I order that the offender attend to the local parole office listed on the Sentencing Assessment Report within 3 days of the date of these orders.
[24]
Amendments
07 July 2021 - Minor amendment to paragraph 1.
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Decision last updated: 07 July 2021