Supreme Court of the ACT|2014-09-23|Before: Murrell CJ

R v Li; R v Jin [2014] ACTSC 304 (23 September 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

(2) Ms Jin sentenced to time served to 26 September 2014.

CRIMINAL LAW - Sentence - Co-offenders - early guilty pleas - cultivate commercial quantity of controlled plant - aid and abet cultivate commercial quantity of controlled plant - sentencing purposes - terminal illness - deportation upon release

1. Mr Li entered a plea of guilty at the earliest reasonable opportunity to the offence that on 3 April 2014 he cultivated a commercial quantity of a controlled plant with the intent that that plant be sold contrary to s 616(3) of the Criminal Code 2002 (ACT). That offence carries a maximum available penalty of 25 years' imprisonment and/or a very substantial fine. The commercial quantity is between 100 and 1,000 plants. In this case there were approximately 371; in any event, no more than 400 plants were involved.

2. The co-offender, Ms Jin, pleaded guilty at the earliest reasonable opportunity to aiding and abetting the offence committed by Mr Li. This offence also carries a maximum available penalty of 25 years' imprisonment.

3. Each of the offenders has been in custody since their arrest on 3 April 2014.

4. The agreed statements of facts in relation to Ms Jin and Mr Li are essentially the same.

5. Mr Li rented a house at Evatt in the Australian Capital Territory in another name for a 12 month period from 1 January 2014. Police executed a search warrant on those premises on 3 April 2014. On the ground floor they located a sophisticated hydroponic set up that was being used to cultivate approximately 371 cannabis plants. The plants were at different stages of growth. The growing arrangement included heaters, fans, timers and hosing via which water and nutrients were provided to the plants.

6. In addition to the plants, police located plastic bags containing dried cannabis and a suitcase containing a substantial quantity of Australian currency. They ascertained that the electricity metre box was being bypassed insofar as the growing area was concerned, although electricity was being metered insofar as it was supplying the upstairs residential flat.

7. Mr Li asserted that he had purchased the seeds and grown the plants without really knowing what they were, although he had been told that he could make money by selling the flowers. I do not accept that. The offenders must have known that they were growing cannabis plants for sale and that such an activity was illegal. Why else would they bypass the meter box and conduct their operation inside a house?

8. The role of Mr Li is not entirely clear. However, it is plain that he was undertaking the day-to-day cultivation and that, as the lessor, he was the principal occupant of the premises. He played a very substantial role. Presumably others were involved but we know nothing of that. I do not believe that Mr Li was the mastermind of this operation, but he did play a critical ongoing role.

9. Ms Jin's role was minimal. It was right at the bottom end in terms of objective seriousness. According to the agreed statement of facts, paragraph 15:

The plea of guilty is on the basis that the offender knew that the co-offender Mr Chunsheng Li was involved in the cultivation and assisted him by attending to daily chores, cooking for him and cutting up four used plastic drink bottles which were used by the co-offender to cover over cannabis plant seedlings to protect them and to provide a greenhouse environment for the seedlings to improve their growth.

10. In other words, Ms Jin cut up four used plastic drink bottles knowing that they would be used to assist in the growing of the plants and provided some low level background support to Mr Li, which no doubt allowed him to focus on the task of cultivating many plants. However, she had a relationship with Mr Li and, regardless of whether he cultivated cannabis plants, I infer that she would have provided him with domestic support. Nevertheless, as it transpired, her assistance enhanced his capacity to care for the plants.

11. Ms Jin's overall level of involvement was very low level. However, the overall objective seriousness of the offence has to take into account; not only her role but also the quantity of plants involved and the general circumstances in which the conduct occurred.

12. Ms Jin is 52 years of age. She has no prior convictions. She enjoyed a stable upbringing in China. She is of Chinese-Korean background. She came to Australia illegally in 2002 and thereafter worked illegally on a farm in the Newcastle area, residing with a partner. About two years ago she separated from that partner and commenced a relationship with Mr Li, moving to the ACT in January 2014. I infer that, in part, she committed the offence because she had no legitimate means of earning an income in Australia.

13. She has two adult sons, one of whom resides in Korea. The other resides in China. She wants to return to China. That is fortunate because, as Ms Jin has no Australian visa, she will be deported to China upon her release from custody. She has no legitimate source of income in Australia and she has no social network in Australia. She has been distressed in custody, which is quite understandable because she has almost no understanding of the English language.

14. Ms Jin's criminality is well and truly addressed by the period that she has already spent in custody. Although the maximum available penalty is 25 years' imprisonment, having regard to the very low level of Ms Jin's offending conduct and to her subjective circumstances the period spent in custody suffices to meet the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

15. I am aware that in sentencing her I am also required to consider, insofar as it is known and relevant, the factors in s 33 of the Sentencing Act.

16. Ms Jin is convicted and sentenced to imprisonment from 3 April 2014 to 26 September 2014.

17. The objective seriousness of the offence committed by Mr Li is in a different category. He leased the premises and occupied them from January 2014 to April 2014, a period of three months. Over that period, he cultivated a substantial number of plants, as demonstrated by the age and stage of the plants seen during the search on 3 April 2014. He must have been involved in cultivation for a period before 3 April 2014, although the offence charges only that day.

18. Nothing is known about the profit that he would or could have made. I infer that this venture was to be a source of income. As an illegal immigrant, Mr Li, had no other legitimate source of income.

19. Mr Li is 48 years of age. He is a Mandarin speaker. He has been in Australia for nine years, having arrived on a South Korean passport. When the search warrant was executed, two Chinese passports were located in his name, but there is no record of him entering this country on a Chinese passport.

20. He suffers from a very serious medical condition, a large hepatic tumour. There is a very poor prognosis as the condition is advanced. This condition is related to hepatitis B infection, a condition from which Mr Li has probably suffered since birth or, at least, since early childhood. The large hepatic tumour is in the area of the liver, and it would be very difficult to access surgically. There has been considerable debate as to whether Mr Li should or could undergo what is known as a TACE procedure. At first it was thought that that procedure would be beneficial. Then it was thought that the procedure should not be undertaken because of the low chance of success. When the matter was last before me a month ago, it was thought that the TACE procedure should be undertaken but was associated with a very significant risk of mortality. If that risk did not materialise, then the offender would be in hospital for four or five days. However, given the very substantial risk, the offender has decided that he will not consent to that procedure. He would rather live out his short remaining life in the hope that he can return to China before he dies.

21. In sentencing Mr Li, I have regard to the sentencing purposes in s 7 of the Sentencing Act. I will fix a sentence that appropriately reflects the objective seriousness of the offending conduct, having regard to purposes such as general deterrence, punishment, denunciation and accountability.

22. However, in relation to the manner in which the sentence is to be served, as Mr Li is undoubtedly at the very end of his life, the Court should be compassionate and structure the sentence so that he can be released very soon with a view to him being deported to China to spend his last days there. The Crown does not demur from that approach.

23. Mr Li is convicted. The starting point for the sentence was three and a half years' imprisonment which I have reduced by 25% for the early plea of guilty to 31 months' imprisonment or two years and seven months. I direct that the sentence be served by full time imprisonment from 3 April 2014 to 26 September 2014. From 26 September 2014 the sentence is suspended upon Mr Li entering into a good behaviour order for a term equivalent to the remainder of the sentence.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

(Sentencing) Act 2005

R v Li; R v Jin [2014] ACTSC 304

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Judgment (31 paragraphs)

R v Li; R v Jin [2014] ACTSC 304 (23 September 2014)

Legislation Cited (2)