The offender has pleaded guilty, that on 12 September 2018, he:
1. knowingly took part in the cultivation of not less than a large commercial quantity of cannabis, namely 231 cannabis plants, by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW); and
2. consumed electricity, without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW). This latter offence was a related offence on a s 166 certificate.
The maximum penalties for these offences, with applicable standard non-parole periods, are:
1. Cultivation offence 20 years' imprisonment and/or fine of $550,000 (SNPP of 10 years)
2. Electricity consumption offence: 2 years' imprisonment and/or fine of $11,000.
There is no dispute that the offender is entitled to receive a 25% discount on his sentence on account of his plea.
[2]
Circumstances of offending
The Agreed Facts before the Court are as follows:
1. On 12 September 2018 police observed Khanh Luu, Lam Huynh and Van Trinh Huynh inside the gates of the premises.
2. Police approached the side of the premises and identified a distinct smell of cannabis coming from the premises.
3. The following conversation took place between Senior Constable Breen and the offender:
4. SC Breen: "Do you live here?"
5. Offender: "No"
6. SC Breen: "Do you have keys for the house?"
7. Offender: Yes"
8. The offender handed the keys to the premises to police.
9. The offender was placed under arrest.
10. Police entered the premises using the keys provided to them by the offender. Inside the premises the police identified a large hydroponic set up.
11. Lam Huynh and Van Trinh Huynh were placed under arrest.
12. A qualified Agronomist certified a total of 231 cannabis plants being grown at the premises.
13. The following items were seized from inside the premises:
1. 133 lamp shades;
2. 160 transformers;
3. 133 globes;
4. 133 light fittings;
5. 6 power boards;
6. 2 red bull cans; and
7. 3 pairs of gloves.
1. The offender was conveyed to Fairfield Police Station where he participated in an electronically recorded interview with police.
2. The offender made the following admissions to police:
1. He and Huynh had come to the premises every night between 6pm and 7pm to water, trim, look after the trees and to turn on the lights;
2. He and Huynh would take the trimmings to an address in Eastwood and Huynh would drive;
3. He and Huynh went inside the premises on the day of the arrest;
4. He knew that the plants were cannabis and that it is illegal, and he was aware there were about 200 plants - both big and small.
5. He and Huynh were getting five to six thousand dollars every six weeks to do this and they would come to the premises together every time;
6. He and Huynh knew that it was illegal, but they needed money to support their families in Vietnam;
7. He had seen the electrician come and open up a hole in the wall but knew nothing more.
8. He lived with Huynh and on every occasion he went to the premises he was with Huynh.
1. The offender's DNA was located inside two blue latex gloves from inside the premises.
The offender gave supplementary evidence and was cross-examined. I found he was a satisfactory witness and that such (brief) cross-examination as there was did not diminish his credit. To the extent that this evidence related to the circumstances of the offending, much of it concerned his involvement with the co-accused, against whom the offender has agreed to testify in a forthcoming trial of the co-accused (next month). In this regard, the offender said that in April 2018, about 5 months before the offending, he first met the co-accused in a coffee shop. He shared residential premises with the co-accused for 3 months (sharing rooms). He was approached by an unidentified person in a nightclub to water some plants; being the premises in which the cultivation of the cannabis plants occurred.
The offender admitted that he was aware that what he was doing was illegal but engaged in the offending behaviour regardless since he needed money to pay his parents, who were nationals and residents of Vietnam. He said that his parents had taken out a loan to finance the offender's schooling, and that his parents were subjected to threats if not harassment. (This evidence was hearsay in nature, although no objection was taken to it on that account). He said that over a 10 week period in which he engaged in the offending conduct, his earnings for his unlawful activities were approximately $10,000; of which $7,000 was sent over to his parents; $2,000 were retained by him for his rental and food and the balance was spent gambling each week. He said that prior to the offending conduct occurring, his financial means were quite desperate.
This was explicable by the circumstance that with the expiry of his visa, the offender had become an illegal immigrant; which, apart from anything else, rendered him illegible for social security benefits. He did not have the means of seeking to renew the visa, and after he had finished his schooling (Year 12), he had engaged in one incomplete year doing a cookery course and a handyman job, his means were extremely modest. This predicament arose despite the offender's belief that he needed to financially assist his parents in Vietnam.
[3]
Objective seriousness
The Crown submits that the principal offence was serious and drew comparison between the 'commercial' quantity, being 50 plants, and the 'large' commercial quantity, being 200 plants identified in Schedule 1 to the Drug Misuse and Trafficking Act. Here the number was four times the commercial quantity and just above the large commercial quantity.
The cultivation of them was the result of a sophisticated operation, with the plants being located in nine grow rooms and a hydroponic set up consisting of 133 lamp shades, 160 transformers, 133 glass globes, 133 light fittings and 6 power boards. I was reminded of observations by Berman SC DCJ in R v Nong [2010] NSWDC 227 [1] that the legislation recognises that hydroponic set ups caused more harm to the community than traditional cannabis cultivation and the maximum penalty and standard non-parole period reflected the seriousness of the offending.
The Crown acknowledges that the offender was a 'crop sitter' and not the principal offender. He admitted in his ERISP that his role was to water, trim and look after the trees and to turn on the lights. There was some equivocation by the offender about the frequency of the watering, but the agreed facts suggest that this occurred on a nightly basis and I accept that evidence.
The Crown also emphasises the admission that the conduct was engaged in for the offender's financial gain. It also says that the offender had the choice, upon expiry of his visa to leave; rather than put himself in the position whereby he might be induced to engage in criminal conduct.
With such circumstances, the Crown submits that the conduct fell just below the mid-range of offending. This applies to both offences.
The offender was aware that he was engaging in illegal conduct. Counsel for the offender submitted that the preferable characterisation of the offender's motive was one of financial need; and certainly not that of greed. I agree that it is inaccurate to characterise the motive for offending as being simply to make financial gain. I accept that the offender was in a fairly desperate financial predicament.
Counsel for the offender sought to minimise the offender's role in the operation: he had hardly acted at a managerial level or had any position of authority. More pertinently, perhaps, Counsel emphasised that in no way could it be said that the offender engaged in conduct designed to or which effectively could conceal his wrongdoing. He had, so it was submitted, co-operated with the authorities from the very beginning; including handing over the key to the premises to police and allowing access to the back house; all without any need for warrant or forced entry. I accept all of these submissions, so far as they go. It remains the position, however, that the offender's role should not be understated simply on the basis of his daily watering and general maintenance. He had an integral role to play, and performed it for two and a half months, but it was at the lower end of the criminal enterprise.
In my assessment overall, I would characterise the conduct as being towards the lower end of the range in terms of its objective seriousness.
[4]
Subjective circumstances
The offender is 26 years of age. In his counsel's submissions, the offender's relative youth was only mentioned in the context of special considerations affecting the non-parole period.
He was born in Vietnam and came to Australia for studies, aged 15. He completed year 12 and started a cookery course but could not go on with it as his parents (in Vietnam) could not afford his fees. He has no meaningful education or skills developed since his schooling.
He now has no familial or social ties within Australia.
He is, as I have indicated, an illegal immigrant, with his visa having expired. There is every likelihood that he will be deported, probably even before the expiry of the non-parole period.
It is common ground he is entitled to receive the 25% discount for the offence on account of his guilty plea.
He has no prior criminal record.
A sentence assessment report referred to the offender's expressed regret of his actions (though in the context of his appreciation of his impending incarceration), but otherwise acknowledged the potential impact on individuals and the community from drug-related offending. His remorse is partly indicated by his past assistance to the police and promise of future assistance.
There was very little said, on the offender's behalf, about his prospects of rehabilitation. Since going into custody he has used his time productively, completing a course. His counsel reiterated that he was a first time offender but said that the issue was affected by the complicated circumstances concerning potential deportation. I am generally persuaded of his rehabilitation prospects due to his remorse, and his assistance to date; although am not entirely convinced that, if put into the same position again (financial necessity) he would not re-offend. He was assessed by the corrections officer as being at medium to low risk of re-offending. The circumstance that he has at least reasonable prospects of rehabilitation, which I find he has, is relevant to the question of whether there are special considerations, to be considered further below.
Most significantly, he has in the past and has undertaken in the future to continue to supply, extensive assistance to the authorities concerning the prosecution of a co-accused; including being a witness for the prosecution at the co-accused's trial next month. He says, and I accept, that he has done this with an apprehension of the effects for his safety. He says he is scared about imprisonment and his concerns about his personal safety are augmented by the fact of his willingness to give evidence against his co-accused. Although the Crown said that the fear for personal safety is overstated and points to the lack of any incidents for the period of custody in which the accused was in the same correctional centre as the co-accused (a situation that changed last month), I accept the offender's evidence in this respect.
The Crown acknowledged the extensive assistance he supplied and opined that the information supplied has been truthful, complete and reliable. The officer in charge of the investigation was cross-examined at the sentencing hearing to confirm the nature and extent of the assistance which he characterised as "very valuable". The officer acknowledged the saving in police resources. The extent of his involvement and the financial benefits he received were not matters which would reasonably have been discovered but for the admissions he made. In saying this, I note that the offender's DNA was located within the premises; such that it was probably only a matter of time before he was subjected to questioning. Plainly, his undertaking to assist with the prosecution of the co-accused is also invaluable. Overall, the Crown accepts that he made full admissions to the police and provided information about the co-accused's involvement in the offending behaviour. The contents of his ERISP was adopted by the offender as evidence against the co-accused. Currently, the offender has received no benefit gained.
The extent of the dispute was the level of discount that should be provided on account of this assistance. The offender's Counsel suggested that he receive a discount for this factor of 25%. The Crown said it should be between 15 - 20%.
I have considered the various matters referred to in s 23(2) of the Crimes (Sentencing Procedure) Act. Virtually all of them point in favour of the lesser penalty. A qualification concerns the prospect of injury suffered by the victim's family, about which there is no substantial evidence. I do accept that he has a genuine concern of retribution.
I am inclined to assess that the proportionate discount for past and future (combined) assistance should be 15%. I am satisfied on the basis of the offender's evidence that he will likely undergo more difficult custodial conditions [2] ; particularly as a result of his undertaking to testify as a Crown witness in the trial of the co-accused.
[5]
Assessment
I have regard to general sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act. For the principal offence of this kind, the principles of general deterrence, denunciation, retribution and the adequacy of punishment are paramount. This was a serious and sophisticated commercial undertaking. The offender was conscious of his illegal conduct and was directly involved in taking the step of diverting electricity supply to conceal the illegality of the enterprise as a whole.
Subjective deterrence and rehabilitation are much more subsidiary considerations in a case like this.
There is no dispute that the s 5 threshold prescribed by the Crimes (Sentencing Procedure) Act has been satisfied. I am satisfied that no penalty other than imprisonment is appropriate. I have taken into account the back up offence in considering the aggregate sentence for the principal offence.
The sentence is to be backdated due to the offender having been in custody.
Counsel for the offender referred me to the decisions in Le v R [2019] NSWCCA 181 (223 plants) and Ngo v R [2018] NSWCCA 181 (231 plants) as comparable sentences. It is true that both cases concerned low level participants in an enterprise whose scope was broadly comparable with the enterprise in this case. The offender's counsel submitted, and I accept, that there are additional considerations concerning this offender - most notably his past and promised future assistance to police - that elevate the offender's position, in terms of the magnitude and scope of mitigating circumstances.
Reference was made by counsel to the accused to the value of 'individualised justice' identified by Button J in R v DH; R v AH [2014] NSWCCA 326 at [104] and the discretion of a sentencing judge to make wholly exceptional circumstances where circumstances are suitably exceptional. The particular circumstances influencing the observations in that case involved the obvious youth of the offenders and upbringings seriously affected by the civil war in Yugoslavia. At any rate, whatever are the metes and bounds of the expression 'exceptional circumstances', my task is predominantly shaped by statutory considerations enshrined in s 21A of the Crimes (Sentencing Procedure) Act and general principle. Further, the considerations that the offender relies upon here to classify his position as 'exceptional' - the probability of his deportation, his lack of links in this country, and an asserted impact of family - would not, individually or in combination be of such rarity as to dilute the application of the general sentencing considerations to which I have referred. Much of what has been relied upon is to a large degree, of a speculative nature.
I accept that there are special circumstances affecting the non-parole period. I refer in this regard to his age, his remorse (reflected partly, in his admissions and assistance to authorities) and his reasonable prospects of rehabilitation.
[6]
Order
Mr Luu, please stand. I convict you of the two counts to which you plead guilty.
The indicative sentences on each count (after the discounts I have referred to) are:
Count 1: imprisonment for 3 years, 7 months (NPP 2 years one month)
S 166 offence: imprisonment for 4 months.
I sentence you to a period of imprisonment of 3 years, 9 months, and 18 days commencing on 12 September 2018 and expiring on 29 June 2022.
I set the non-parole period of 2 years, 1 months expiring on 11 October 2020. You will be first eligible for release on parole on 11 October 2020.
[7]
Endnotes
Referred to approvingly in Tran v R [2018] NSWCCA 220
Per R v Sukkar [2006] NSWCCA 92 per Howie J at [5]
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Decision last updated: 18 November 2019