R v Hoang; R v Bui

[2021] NSWDC 299

District Court of NSW|2021-06-18

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-06-18

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

OFFENCES

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.
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.

[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."

[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.

[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.

[15]