R v Le

The offender's evidence

1. The offender tendered a bundle of evidence which became Exhibit 1. Exhibit 1.2 was a report from Dr C. Lennings dated 10 September 2021. Dr Lennings was a psychologist who interviewed the offender on 30 August 2021 for 95 minutes with the aid of an interpreter who assisted via AVL. He took a history of the offending conduct from the offender and was told that he became involved in the cultivation of cannabis as a result of COVID-19. Following the lockdown in 2020, he lost his job and thereby his means to support his family. At the time, he was separated from his wife and desperate to have money to try and save his relationship. As he was not a permanent resident of Australia, he was not eligible for COVID-19 welfare payments or other support. He felt he was in a precarious situation in which his survival needs were paramount when he was offered work assisting in cultivating the cannabis. He knew he was doing the wrong thing and was very disappointed in himself; however he was desperate to earn money and is now entirely remorseful for his conduct. The money found in his car comprised all of his savings at the time.
2. Since his discharge on bail, he had successfully completed an online course in drug awareness and had regained his employment in a grocery shop.
3. Dr Lennings set out the offender's personal history. He was educated to matriculation level and had commenced university studies in engineering in Vietnam. He arrived in Australia in April 2016 at 19-years-old with his wife, who was on a student visa. He initially studied English and engaged in a hotel management course at a college. His marriage broke up one year after his arrival in Australia and he thereafter commenced another relationship, which ended the year following. He subsequently divorced his second wife and is now in a relationship with another woman, whom he had met in senior high school. She had come from the same province in Vietnam as the offender and arrived in Australia in 2013.
4. Upon psychological assessment, Dr Lennings described the offender as "not a psychologically sophisticated person". He reported experiencing a lot of stress and anxiety however had no interventions by psychologists or psychiatrists. Dr Lennings opined that he had symptoms consistent with a persistent dysthymic condition, suggesting he had poor insight into his mental health.
5. Dr Lennings opined that his involvement in the offence could be explained by three coalescing factors. First was his desperation - as a bridging visa holder, he was unable to obtain employment. Secondly was his low mood and lack of sophistication, which impaired his judgment. Thirdly, because he was separated and had hopes of reconciliation, once he lost his job he was left with no means to try and turn around his marital problems. He now bitterly regrets his poor decision making and reveals significant remorse.
6. Dr Lennings opined that the offender has few criminogenic needs and was unlikely to reoffend.
7. Exhibit 1.3 was a letter from the financial counsellor stating that the offender had attended the service on 13 September 2021 by a phone call lasting approximately 30 minutes. He works casually in a grocery shop and has no debts.
8. Exhibit 1.4 was a letter written by the offender dated 14 September 2021 stating that he felt ashamed for having caused harm to the people of Australia. He stated that he understood his offending was serious and that drugs are the cause of many social evils. He now wanted to atone for his mistakes. He had completed an online course to learn about the impact of drugs and now understood how damaging drugs can be to people in the community.
9. The offender accepted responsibility for his criminal conduct and stated that he would adhere to the law and stay away from anything unlawful.
10. Exhibits 1.5, 1.6 and 1.7 are letters from the offender's wife, sister and employer. Each speaks highly of the offender's character and attests to his remorse for his offending and the progress he has made with his rehabilitation, including education about the harmful effect of drugs in the community and obtaining financial advice. He now wanted to make amends for his conduct and would like to volunteer in the community, except for the COVID-19 restrictions. His employer attested to his work ethic as well as his remorse. He was happy to continue the offender's employment.
11. Exhibit 1.8 was the online course drug completion certificate dated 27 August 2021.
12. Exhibit 1.9 was a schedule of comparative cases for the offence of cultivation of commercial quantity of cannabis.

The Crown submissions on sentence

1. The Crown relied on a written outline of submissions. In respect of the offending in sequence 1, the Crown submitted the following were factors relevant to an assessment of the objective seriousness of the offence. "a) Scale - The scale of the cultivation enterprise was substantial. A total of 149 cannabis plants were located in the cultivation site in various stages of growth. This is almost triple the threshold for a commercial quantity (50) for cannabis plants cultivated by enhanced indoor means. It is approaching the threshold for the large commercial range (200). The quantity of plants is a relevant circumstance to be taken into account on sentence: Nguyen v R [2011] NSWCCA 127 at [44]. b) Sophistication - The cultivation enterprise was relatively sophisticated. The property had been set up solely for use as a cannabis cultivation site, with 5 out of 7 rooms housing cannabis plants growing hydroponically underneath enhanced lighting. The property was being used solely for the growth of cannabis plants. Plants were grown in 5 separate rooms. The plants ranged in maturity. It is open to the Court to infer that this was an ongoing operation from the circumstances police located cannabis plants in varying degrees of maturity: Nguyen v R [2011] NSWCCA 127 at [36]. In the present case it is submitted that the grow-house operation had a high level of sophistication. c) Role of the offender - Police surveillance captured the offender attending the premises on a regular basis over a period of approximately 5 and a half weeks between 16 October 2020 and 25 November 2020. Usually, he attended for periods between 10 minutes and 1.5 hours. On three occasions, he remained for more than 2 hours and on 24 October 2020, he spent approximately 8 and a half hours at the premises. This pattern of attendance suggests that his role in maintaining the site was not insignificant. However, it is not submitted that the offender was the principal of the cultivation operation. He is not the owner or the lessee of the property. Nor is there evidence to suggest that the offender was involved in the initial set-up of the cultivation site, in obtaining the lease, or in funding the operation. The Court is entitled to make logical conclusions as to the role of the offender based on the evidence. To the extent that the offender's role is not known, the court is not obliged to find facts favourable to the offender or to accept his or her version of events: The Queen v Olbrich (1999) 199 CLR 270 at [27]-[28]."
2. The Crown submitted that the offending fell below the mid-range of objective seriousness for an offence pursuant to s 23(2)(a) of the DMTA. The Crown submitted that there were two aggravating factors to be taken into account on sentence pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). First, the offence formed part of an organised criminal activity (s 21A(2)(n)) and secondly, the offence was committed for financial gain (s 21A(2)(o)). The Crown submitted the court would need to be mindful of double counting when considering financial gain as an aggravating factor, as in any offence involving a commercial quantity of prohibited drugs, financial gain is to be expected. Here, it was the offender's own financial gain that was relevant if he did not stand to profit from the enterprise itself.
3. The Crown submitted the following mitigating factors were relevant. The offender had no prior criminal convictions and was a person of good character (s 21A(3)(e) and (f)). It was submitted good character will often carry less weight in offences involving cultivation of prohibited drugs. Secondly, the offender was assessed at a low risk of reoffending (s 21A(3)(g)) and the offender had entered a plea of guilty in the Local Court and was entitled to a utilitarian discount of 25% (s 21A(3)(k)).
4. The Crown submitted that both general and specific deterrence were important in sentencing for offences of cultivation by enhanced indoor means, relying on Tran v R [2018] NSWCCA 220. The Crown further submitted that rehabilitation should be given due weight and as the offender was young and had no prior criminal convictions, his prospects of rehabilitation were good.
5. The Crown submitted that the threshold in s 5 of the CSPA had been crossed and that full-time custody in prison was the only appropriate sentence. Any sentence should be backdated by the 35 days he had spent in pre-sentence custody. The offender had also consented to a confiscation order pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 in respect of the $1,120 cash located in his car.
6. In her oral submissions, the Crown noted the main divergence between the parties was the Crown's advocacy of a custodial sentence. This was based on the prevalent nature of the offence. Notwithstanding the offender's good character and minimal financial benefit from the offending, the offence was one in which detection was difficult and the criminal syndicate behind the operation was unable to be located.
7. The offending was not insignificant, involving three times the prescribed commercial quantity of 50 plants. It was well organised, involving plants at different growth levels in five areas of the premises.
8. The Crown acknowledged that there was no evidence that the offender had a role in the organisation of the operation. However, general deterrence was important as crop-sitting assisted in the cultivation of the prohibited plants. Here, the offender attended on a regular basis, however the Crown acknowledged that it was unable to clearly define his role, referring to [19]-[23] of the agreed facts. Notwithstanding that, his was a significant role in assisting in a sophisticated criminal enterprise and general deterrence therefore warranted a full-time custodial sentence being imposed.
9. The Crown rehearsed her submission that the objective seriousness of the offending fell just below the mid-range for an offence pursuant to s 23(2)(a) of the DMTA. The fact that the offender was claiming that he was under financial stress because of the COVID-19 pandemic did not excuse his conduct.
10. The Crown submitted that this was not an appropriate case for the imposition of an intensive correction order ("ICO"). Notwithstanding that, rehabilitation was a consideration and the offender was a low risk of reoffending.
11. In respect of sequence 3, the Crown submitted that the offending here was a "relatively minor example" of the offence pursuant to s 193C(2) of the Crimes Act. The Crown submitted that the s 5 threshold was not crossed and it could be dealt with by way of a community correction order given the amount of money involved. If such an order was imposed, it would be inappropriate to sentence the offender by way of an aggregate sentence for both offences and therefore for the offender to be eligible for an ICO, a sentence of two years or less would be required in respect of sequence 1.
12. Finally, the Crown conceded that the offender had exhibited remorse and also consented to the confiscation order.

The offender's submissions

1. The offender also relied on a written outline of submissions. His role was characterised as one of assisting others on the occasions that he attended the premises in the cultivation of cannabis at those premises. He was not involved in any other way in the cultivation operation and therefore his role fell beneath the mid-level of criminality for the offence, although, not towards the bottom of the range.
2. The offender was entitled to a 25% utilitarian discount for his early plea of guilty, which it was submitted is demonstrative of contrition and remorse.
3. The offender relied on the history recorded by Dr Lennings and in the Sentencing Assessment Report as to his subjective factors. He was 25 years of age with no prior convictions. He had resided in Australia since 2016 and remains here on a valid visa. The depressive disorder identified by Dr Lennings was not submitted to be causal of his offending conduct. Rather, Dr Lennings had identified financial need as the determining feature of his criminality, given that he lost his employment due to the COVID-19 lockdown and was not entitled to government benefits.
4. The submissions referred to his 35 days in pre-sentence custody as "a salutary period for the young offender". If sentenced to a term of full-time custody, the offender submitted special circumstances should be found pursuant to s 44 of the CSPA.
5. The offender relied on statistics issued by the Judicial Commission to demonstrate that almost half of offenders under the index offence were dealt with by way of an ICO.
6. In his oral submissions, learned counsel for the offender highlighted the role of the offender as outlined in the agreed facts and in particular, [19]-[23] of those facts, which demonstrated that he did not know the exact number of plants being cultivated and demonstrated his lack of knowledge of the overall operation itself. This moderated the importance of the Crown submission as to the scale of the operation in assessing the objective seriousness of the offence. The Crown's characterisation of the role as being "substantial" was not borne out, relying on Gore v R; Hunter v R [2010] NSWCCA 330 at [69].
7. Further, the Crown submission as to the sophistication of the offending was not borne out. Implicit in any indoor cultivation offence was a degree of sophistication and it was not demonstrated here to be any more sophisticated than any other operation.
8. Learned counsel submitted that the aggravating features relied on by the Crown were not made out. It was clear that the offence involved a criminal activity that was organised and that there was no financial gain to the offender arising from the enterprise, relying on Huang v R [2017] NSWCCA 312 at [60] and [61]. Here, the offender had admitted his financial gain was limited to earning some money to survive, due to the impact of the COVID-19 pandemic on the availability of paid work. Thus, there were no aggravating features to be taken into account.
9. Learned counsel rehearsed his submissions as to the mitigating features to be taken into account as set out above. It was submitted that the offender had been assessed as a low risk of reoffending both by Dr Lennings and by the author of the Sentencing Assessment Report, and that he had good prospects of rehabilitation. He now understood that it was not a minor offence but a serious offence, and why it was serious. This demonstrated that he had good prospects of rehabilitation.
10. Counsel also referred to the offender's remorse and agreed that the s 5 threshold had been crossed in respect of sequence 1. It was submitted the offender was an ideal candidate for an ICO. He was in full-time employment and had progressed his rehabilitation. He was characterised as a remorseful and not violent person, which was important in terms of the assessment of community safety.
11. It was acknowledged that the offender's mental health issues were not causal to his offending conduct. However, it was submitted that it made him an inappropriate vehicle for general deterrence, that a full-time custodial sentence would weigh heavily on him and that he was not a danger to the community.
12. Counsel referred to the report of Dr Lennings which pointed out that the offender can now reach out to the Australian Vietnam Community Association and the Red Cross for support.
13. Counsel submitted that the time served in custody of 35 days could be taken into account in an aggregate sentence to be imposed on the offender, in accordance with the principle in Mandranis v R [2021] NSWCCA 97. Finally, learned counsel acknowledged the statistics were evenly balanced between full-time custodial sentences and ICOs being imposed for the offence. Counsel referred to the schedule of comparable cases where ICOs had been imposed for similar offending.

Crown submissions in reply

1. The Crown made the following three submissions in reply. First, [23] of the agreed facts had to be read in light of the whole of the facts including [14]. In relative terms, the offender knew how many plants were on the premises.
2. Secondly, with respect to the submissions made as to the offender's mental health, Dr Lennings as a psychologist had not made a diagnosis of depression but had identified features of dysthymia. This was based on the self-reporting of the offender, which was untested. Community expectations would not be met by the court making a finding that the offender suffered clinical depression, relying on Kearsley v R [2017] NSWCCA 28 at [6] and [8], referring to R v Engert (1995) 84 A Crim R 67 at [72]. The Crown submitted the offender's mental health issues would not warrant a diminution in sentence here.
3. Thirdly, the Crown referred to the selective use of the comparative cases by the offender in only listing cases where an ICO had been imposed. 50% of the cases otherwise had full-time custodial sentences imposed.

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. The enterprise to cultivate a commercial quantity of cannabis plants was well organised and sophisticated - the crop was being grown underneath enhanced lighting with water filtration systems in place in secured premises which were solely used for that purpose. However, the role of the offender was limited to assisting others in generating the crop. Although the structure of and those responsible for the enterprise is unknown, the offender is to be sentenced on the basis that he was not the principal of the cultivation operation, was neither the owner of the property nor the lessee of it, was not responsible for payment of utilities or other rates regarding the property and there was no evidence to suggest he was involved in the initial set up of the property or funding of the operation.
3. Whilst the premises contained 149 plants, almost three times the prescribed commercial quantity, they were spread within five rooms of the premises and the offender did not know the exact number. The offender did however attend the premises on a regular basis over a period of five and a half weeks, usually for periods between 10 minutes and 1.5 hours, however on occasion he was there for much longer. I accept the Crown submission that this pattern of attendance suggests that the offender's role in maintaining the plants was not insignificant. I do however accept the offender's submission that implicit in the offence is a degree of sophistication required and it was not demonstrated here to be any more sophisticated than any other enhanced cultivation operation.
4. Having regard to all of the circumstances of the offending, I find that the objective seriousness of the offending in sequence 1 fell below the mid-range for an offence pursuant to s 23(2)(a) of the DMTA and towards the middle of the low range for such an offence.
5. In respect of sequence 3, given the sum of cash involved of $1120, the offending fell towards the lowest end of the range for an offence pursuant to s 193C(2) of the Crimes Act 1900.
6. The Crown has identified two aggravating factors to be taken into account pursuant to s 21A(2) of the CSPA. Namely, that the offence formed part of an organised criminal activity (s 21A(2)(n)) and that the offence was committed for financial gain (s 21A(2)(o)). Given that it is inherent in the offence that it was an organised criminal activity and that there is no evidence to suggest that the offender was entitled to any financial gain from the eventual supply of prohibited drugs, I am mindful not to double count these matters as aggravating factors. However, I take into account that the offender's motivation was financial gain by way of payment for his participation in the operation, accepting that he was in desperate financial straits as a result of losing his employment due to the COVID-19 pandemic.
7. I accept that the offender was at the time of the offending a person of good character, having no prior criminal convictions, and these are mitigating factors pursuant to s 21A(3)(e) and (f). However, it is well established that good character will carry less weight in offences involving cultivation of prohibited drugs where such operations are difficult to detect and young persons of otherwise good character are often used so as to avoid detection by the authorities.
8. I accept that the offender has been assessed as a low risk of reoffending which is a mitigating factor pursuant to s 21A(3)(g) and that the offender has entered an early plea of guilty which entitles him to a utilitarian discount of 25% pursuant to s 21A(3)(k). I am also satisfied that the offender has expressed genuine remorse for his offending.
9. General deterrence is important in sentencing for offences involving cultivation by enhanced means of prohibited drugs. A clear message must be sent to like-minded members of the community that Parliament has prescribed severe maximum penalties for such offences and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important, in that the offender must understand that if he were to reoffend he would be subject to increasingly severe penalties.
10. I take into account the maximum penalty for an offence pursuant to s 23(2)(a) of the DMTA of 15 years imprisonment or a fine of 3500 penalty units ($385,000) and the maximum penalty for an offence pursuant to s 193C(2) of the Crimes Act 1900 of 3 years imprisonment, as guideposts in the sentencing process. The maximum penalty for an offence pursuant to s 23(2)(a) of the DMTA itself indicates the seriousness with which Parliament regards such offences.
11. There are significant subjective factors to be taken into account in sentencing this offender. Reports made to psychologists which are unsupported by sworn evidence from offenders must be treated with much circumspection. However, the symptoms of the depressive disorder identified by Dr Lennings are not relied on by the offender as being causative of his criminal conduct. Rather, his involvement was driven by his need to earn money to survive, due to him not being entitled to government assistance during the COVID-19 pandemic in 2020 and having lost his employment. The offender had never been treated for any psychological condition, nor had he been diagnosed with any psychiatric disorder. Dr Lennings' opinion that he had symptoms consistent with a persistent dysthymic condition, suggesting he had poor insight into his mental health, does not amount to a diagnosis of mental illness and I do not accept his opinion that his low mood and lack of sophistication impaired his judgment, leading him to offend. Rather, it was his desperate financial position which led to the offending conduct. For that reason, I am not satisfied on the balance of probabilities that he is, as a result of mental health issues, an inappropriate vehicle for general deterrence, or that a full-time custodial sentence would weigh more heavily on him than the general prison population.
12. I do accept Dr Lennings' opinion that the offender has few criminogenic needs and is unlikely to reoffend. He had progressed his rehabilitation, is in full-time employment and has the support of his partner in the community.
13. Having regard to all of the circumstances, I am satisfied that the threshold in s 5 of the CSPA has been crossed and no other penalty other than imprisonment is appropriate in all of the circumstances. I am not so satisfied in respect of sequence 3.
14. In respect of sequence 1, I find that the appropriate penalty is 2 years imprisonment as a starting point. Taking into account the 25% utilitarian discount on sentence, the appropriate sentence would be 18 months imprisonment, noting that 35 days has already been served. As outlined above, the offender has good prospects of rehabilitation and is a low risk of reoffending. He is also in full-time employment and has learned a salutary lesson by way of his post-arrest custody. Section 66(2) of the CSPA requires an assessment of whether making an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Community safety is of paramount consideration in determining that issue, taking into account also the purposes of sentencing in s 3A of the CSPA as set out above. Here, the offender's risk of reoffending would more likely be addressed by continuing his rehabilitation in the community where he is in full-time employment and he presents no risk at all to community safety. This is therefore an appropriate case for the offender serving his sentence by way of an intensive correction order pursuant to s 7(1) of the CSPA. The term of the order will be for 18 months, less 35 days pre-sentence custody in accordance with Mandranis v R (supra).
15. In respect of sequence 3, rather than a sentence of imprisonment I intend to order a community correction order pursuant to s 8 of the CSPA for a period of six months to be served concurrently with the intensive correction order outlined above. I further intend to make the confiscation order sought by the Crown in respect of the sum of $1,120.

Orders

1. I hereby make the following orders 1. You are convicted of the offence of cultivate prohibited plant not less than a commercial quantity - cannabis, pursuant to s 23(2)(a) of the Drug Misuse & Trafficking Act 1985. 2. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 18 months, less 35 days. 3. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an intensive correction order. The sentence will commence today and terminate on 24 February 2023. 4. You must report to the Community Corrections Office at Bankstown as soon as practicable but no later than 7 days from today. 5. The standard conditions of the order apply: 1. You must not commit any offence; (b) You must commit to supervision by a community corrections officer. 1. I am satisfied that exceptional circumstances exist here for not imposing any additional condition. My reason for so finding is that the offender is in full-time employment and has progressed his rehabilitation and is in need of no further interventions. 2. I am further satisfied for the purposes of s 17D(1A) of the Crimes (Sentencing Procedure) Act 1999 that the court is in possession of sufficient information to justify the making of an intensive correction order without obtaining a further assessment report. 3. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 4. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. 5. You are convicted of the offence of deal with property proceeds of crime value of the property less than $100,000, pursuant to s 193C(2) of the Crimes Act 1900. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a community correction order. 6. The term of the order is for six months. 7. The standard conditions of the order apply: 1. You must not commit any offence; 2. You must appear before the court if called upon to do so at any time during the term of the order. 1. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re-sentenced. 2. You are directed to contact the court registry within two business days, to arrange for a copy of these orders to be sent to you. 3. I have made an order pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 by consent, that the cash in the sum of $1,120 found at Beecroft on 25 November 2020 is forfeited to the State.

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: 01 October 2021