In December 2019 Northern Beaches police established a strike force to investigate cultivation of cannabis at three linked premises in Artarmon, namely 29 Hotham Parade, 2 McLachlan Avenue and 4 George Place. They were all industrial or warehouse type buildings.
On 2 December 2019 police became suspicious about what was going on in the premises at 29 Hotham Parade because of a strong and consistent odour emitting from the premises. On 4 December 2019 they conducted a thermal reconnaissance outside the premises and it indicated a possible hydroponics operation being conducted.
On 16 December 2019 police were given warrants to enter the three premises and on 17 December a warrant was executed at 4 George Place, Artarmon and also 2 McLachlan Avenue, Artarmon.
A number of men were involved in the operation, and today the first two of them appear for sentence, Guo Qing Ma and Yongjun Zheng. Others are to be sentenced at various Courts next year.
Guo Qing Ma, aged 61,and Yongjun Zheng, aged 26, have both pleaded guilty to knowingly take part in cultivating a prohibited plant in excess of a large commercial quantity contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of ten years. The maximum penalty and standard non-parole period are not mere formalities, but they represent important guideposts for sentencing courts which carry out the sentencing exercise in accordance with the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
Counsel for both offenders concede that a term of full-time custody is required in this case, and it is unnecessary for me to consider any alternatives.
Ultimately the Crown submitted without any real challenge by counsel for either offender that the moral culpability and the objective seriousness of the respective cases was roughly equivalent and, when one takes into account their subjective cases, considerations of parity suggest that there is no real basis for any difference in the sentence to be imposed on each offender. The agreed facts in each case overlap in many areas, and it is necessary only to deal with them in a summary fashion.
I will deal firstly with the case against Mr Ma. He is currently on bail. He was in custody for 64 days after his arrest on 17 December 2019 and the term of imprisonment will be backdated to take account of that period in custody.
When police executed the warrant at 2 McLachlan Avenue in Artarmon, Mr Ma and a co-offender Mr Eyles was present. Before being taken to the police station Ma participated in a video walk-through with police where he told them there were 12 tents and his role was to clean and take the big leaves off the plants. He led police to 12 large insulated tents that all contained 20 cannabis plants of various sizes in pots. There was a complex and sophisticated hydroponic setup consisting of multiple tents and extraction fans, and a sophisticated water irrigation system for each plant. There were ultraviolet lights, heaters and fans inside each tent to assist with the growing process.
Police located a sum of money in $50 bundles inside a green bag when searching the premises, and a DVD connected to CCTV cameras. A total of 240 cannabis plants were located in the premises at McLachlan Avenue.
The premises at 4 George Place had been leased to Mr Ma on 1 November for a period of three years. Again, police found evidence of a sophisticated cannabis cultivation operation at that location. There did not appear to be any legitimate business being conducted in the premises.
Police also located a large sum of money in $50 denominations located in the meal room in the bedside table. The premises were found to contain a total of 493 cannabis plants and various bags of cannabis leaf weighing 20.73 kilos. A total of 733 cannabis plants were found in the two premises.
Mr Ma was taken to Manly Police Station and declined to offer anything substantive in an electronically recorded interview, it being suspended after he advised police that he did not understand his rights.
He has a record of convictions involving minor drug use and gambling matters. In 1992 and 1993 he was found in a gaming house and fined; in 1995 he sentenced for conducting a gaming house. In 2001 there was a fine for possessing a prohibited drug. In 2017 he was given a s 9 bond with a condition of participating in gambling addiction counselling as directed, for being an excluded person who entered a casino. A year earlier in 2016 he had been convicted of the same offence and fined.
The offender provided a subjective case in the form of an unchallenged affidavit. He corrected some matters that were set out in the sentence assessment report, said to be due to difficulties with translation. He accepted that he knew that he was engaging in an illegal activity when he worked with the cannabis plants and he accepted that he had been told that cannabis would be made legal soon, rather than as stated in the sentence assessment report that he was told that cannabis was legal.
As indicated in the agreed facts he showed police the operation and described his role when he was arrested, and his role in the cultivation was to assist as a labourer, which is a concession by the Crown noted in the agreed facts.
Curiously, there is no agreement or evidence as to his involvement in the operation of any of the premises before 1 November 2019 when he became the lessee of 4 George Place. On a strict reading of the material his involvement was limited to the period between 1 November 2019 and his arrest on 17 December 2019, notwithstanding whatever suspicions one might have about a lengthier period of involvement. He says, without challenge, that the money for the sublease on the premises in his name was covered by others involved in the cultivating. He said it was a controlled operation. He said none of the money at the warehouses belonged to him. He knew that he was shown in various parts of the CCTV footage.
He is 61 years of age. He came to Australia 30 years ago and studied English at a language centre. He worked as a fitter and turner in China. He became a citizen in 2010. He has been married for 20 years. He has a stepdaughter who supported him and was instrumental in him being granted bail after about two months in custody. He says that before his offending he was married, he had a restaurant in Ashfield and another restaurant. He has some basic English skills and his work and his life collapsed because he became involved in gambling and heavy drinking. He had twice been given permanent exclusion notices from the Star City casino because of his gambling problem.
In March 2015 he collapsed due to alcohol related cirrhosis of the liver. He had a procedure to withdraw 7 litres of fluid from his stomach and was in hospital for two weeks in 2015. He takes daily medication. He says that having lost his business and personal income he took the opportunity that was offered to him as a labourer assisting in the cannabis growing. He believed that he was dying anyway and his decision to get involved was based on hopelessness. He expresses sorrow for the offence, it has taught him lessons, namely family is important in his life, and more important than gambling, and he has been grateful for the time that he has had on bail with his family.
He has taken some small steps towards addressing his gambling problem including a course of counselling for addiction to alcohol and he stopped consuming alcohol. The medical material supports what he said about his condition. The Justice Health records note the difficulties that he had in obtaining medication and medical treatment while in custody. However, it is not suggested that he will not be able to obtain adequate medical care while in custody, and as I have said his counsel has conceded that he will be returning to custody.
He was assessed by the author of the Sentence Assessment Report as being at a medium to low risk of reoffending. I accept in terms of objective seriousness that the offending is about halfway between low range and mid-range, which is a position common to both the Crown and Mr Robinson who appears for Mr Ma. The assessment of objective seriousness takes into account a number of factors, namely the quantity of the cannabis plants, the threshold for a large commercial quantity is 200 plants, and there were 733 plants involved here. There was a degree of sophistication of the operation. The Crown does not rely upon the finding of 20 kilograms of cannabis leaf, or attribute any responsibility to the offender for that item, other than to demonstrate that the criminal operation had the capability to and succeeded in producing the end product for sale.
Clearly the offence was part of a planned or organised criminal activity and involved enhanced indoor cultivation on a large scale, but the Crown does not point to that as a s 21A aggravating factor. It is clear that the offence was committed for financial gain, and again notwithstanding that that is often an inherent characteristic in this type of offending, the Crown does not rely upon it as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. I also take into account the duration of his involvement over a period of one and a half months or so, and his role of cleaning the premises, taking the leaves off the cannabis plants and being the lessee of one of the premises. It is accepted that his role was that of a labourer.
It is common ground that he has no relevant criminal history. The offences to which I have referred show that he has otherwise been a hardworking person of relatively good character. As Mr Robinson puts, lesser weight needs to be given to retribution, specific deterrence and protection of the community.
It is agreed that each offender is entitled to a 25% discount for the utilitarian values of their pleas.
I accept that he has reasonable prospects of rehabilitation and is unlikely to reoffend. His medical issues will make his time in custody more onerous than for younger, able bodied people, and his lack of English skills will also make the time difficult for him. Those factors, together with the fact that he is facing his first period of full time custody justify a finding of special circumstances, as well as the need for continuing treatment for his medical needs and assistance in dealing with his gambling issues.
Dealing with the case of Mr Zheng, he has been in custody since his arrest on 17 December 2019, and the sentence will take account of that. The agreed facts largely repeat what has already been set out in relation to the three premises covered in the agreed facts of Mr Ma's case. The offender was arrested at 4 George Place when police executed the search warrant. His fingerprint was found on a pedestal fan on the ground floor, and a mobile phone belonging to the offender revealed a number of messages involving the offender and Doolan, the de facto partner of the offender's sister. Those messages covered the period between 12 July 2019 and 4 December 2019, in which Doolan was giving instructions to Zheng and Zheng was indicating that he understood and was carrying out those instructions.
In short, it is agreed that all the premises had sophisticated irrigation systems to individual pot plants in each growing tent, and there are references in the messages to the water tanks which were connected to the irrigation pipes in order to provide a water source for the cannabis plants. Mr Zheng has no criminal record in Australia. Notwithstanding the fact that the Crown asked me to amend the facts by consent in Ma from 738 to 733 cannabis plants because there were said to be 493 cannabis plants found at George Street, in Zheng, the agreed facts are that there is a slightly different number, namely 498.
His subjective case is set out in a report of psychologist which provides the Court with nothing more useful than a summary of his story, and provides no relevant diagnosis or prognosis of any condition. Notwithstanding that, the Crown does not take any point about the accuracy of the history as a reasonable basis upon which to proceed to sentence. It seems to be consistent with other unchallenged material.
He is a 26 year old man born in the Xi'an province of China. He had a normal upbringing without significant adversity. He came to Australia on a study visa in March 2009 and whilst studying he was working part-time and helping his sister's partner, that is the co-offender Doolan, in a factory used for the cultivation of cannabis. He attended 12 years of high school in China, and he received excellent academic results in his primary years, before declining slightly in the high school years. He commenced an IT course at university and had been attending a college in Sydney and studying online. He was also working in various jobs, including construction work, a removalist, a delivery driver and an airport pickup driver.
There are no physical or mental health problems and no evidence of drug or alcohol problems. Although his sister's partner was involved in the operation, he refrained from blaming anyone. He has maintained a close relationship with his mother who said that not only has he never committed a crime in Australia, but he has also not committed any crime in China, and the increased restrictions on inmates during the COVID pandemic did not affect him much as his family and girlfriend both reside overseas.
He says that when Doolan asked him to do cleaning at the factory he was inclined to say yes. He did not know what he was doing and what the factory produced initially as he was cleaning out the front, but he became worried about what was happening because it was quite secretive and later he cleaned and filled up the water throughout the facility and realised that he dealt with cannabis. He expressed regret and remorse and acknowledged that his actions had harmed his family and his girlfriend.
In summary, the psychologist described him as a young and healthy adult man who made an unfortunate choice to assist someone who supported him after his arrival in Australia as a student. He had good intentions initially, not knowing that he would be assisting in the cultivation of cannabis, but came to realise that that was the case. The report notes that with his student visa is likely to be cancelled and he will be returned to China, but as the authorities indicate that is not a matter that I can take into account in setting the term of imprisonment, and the possibility of deportation is an irrelevant matter.
I have references from his mother who has been in regular contact with him and says that he will turn over a new leaf and start again and not commit any crimes in the future, and he has expressed remorse to her. I also have a reference from his fiancée who has remained in China and offers her support for him.
Turning to the Crown's written submissions on objective seriousness, the quantity of 498 plants being cultivated is a factor to consider. The degree of sophistication of the cultivation which was enhanced indoor hydroponic cultivation was designed to maximise yield. As with the submissions in the matter of Ma, the Crown does not rely upon the planning or organised criminal activity as a s 21A aggravating factor, but it is relevant to the assessment of the objective seriousness. Also, the Crown does not rely upon financial gain as a s 21A factor.
His involvement covered the period from 12 July to 17 December, a period of over five months, and the facts demonstrate that his role included watering and hydrating the 498 plants, taking care of the soil and planting, maintaining the sophisticated irrigation system and general upkeep. His role required a degree of horticultural skill and knowledge to ensure the plants were taken care of, which is a factor that was referred to in the Court's decision in R v Mangano [2006] NSWCCA 35. His role was one that was integral to the operation. Here again I accept what appears to be common ground that the offending falls between the low range and the mid-range of objective seriousness.
The Crown accepts that he does not have any criminal record and he is of good character. Further mitigating factors are a plea of guilty and expressions of remorse. His prospects of rehabilitation are good and he is unlikely to reoffend. I accept that a finding of special circumstances should be made, given that this is his first time in custody, and absence from his family will make his time in custody more onerous than someone who has family support and the ability to have contact visits while in custody.
I have been taken to three cases by the Crown. First, R v Mangano [2006] NSWCCA 35 which referred to the early decision of R v Skorin [2005] NSWCCA 276, and I take account of the objective and subjective circumstances and the sentences imposed in those cases. Skorin involved 6,700 plants and Mangano involved 10,000 plants. I was also taken by the Crown to the decision of Nguyen v R [2019] NSWCCA which involved 506 plants.
That leads me to a consideration of the statistics and the extent of assistance that may be obtained from those statistics. I bear in mind statements of the Court on many occasions as to the use of statistics. As the Court said in R v Smith [2016] NSWCCA 75, a few comparable cases in an overall and broad way can provide some measure of the type of sentences passed in similar, although not identical, circumstances, and it is not always helpful to trawl for comparisons with other decided cases. At best, other cases do no more than become part of a range for sentencing.
The Courts should have regard to the general pattern of sentences, and while sentencing statistics have been described as a blunt instrument or an opaque tool for providing insight into a sentencing range, the enhanced statistics that are now available, as Hulme J pointed out in Why v R [2017] NSWCCA 101 can be a very valuable tool if properly understood and used appropriately.
Having been provided with one page by counsel for Zheng, which set out only the bar chart demonstrating the cases dealt with by full time custody, ICO or CRO between September 2018 and 21 December 2019, I asked counsel to consider a set of more detailed statistics covering a range of 97 cases between January 2008 and September 2018, refined by the filters of individual with one offence only and a guilty plea.
A further range of 23 cases, covering the period from 24 September 2018 to 31 December 2019 under the same filters, was provided to counsel. The enhanced statistics for each of those two ranges, a total of 120 cases, set out a limited amount of additional information, in particular the age, the type of drug, and some details as to prior record. With such a large range, over a period of some 12 years, the sentences imposed in those cases as revealed by the enhanced statistics are of considerable assistance in the sentencing process, while of course recognising that each case must be determined on its individual objective and subjective circumstances having regard to the purposes of sentencing.
Mr Brennan ultimately urged the Court to adopt the view that the term of almost one year which has been served in custody should approach or be equivalent to the non-parole period for the sentence. That is an overly optimistic proposition in the light of my assessment of objective seriousness in this case, bearing in mind the maximum penalty and the standard non-parole period, and the range of sentences, in a large number of other cases to which I have referred. As to parity between the offenders, Mr Robinson, counsel for Ma, did not suggest that there was any relevant difference in the ultimate outcome, and the Crown took a similar view. That is also my view when one balances out all the objective and subjective circumstances in each case.
The orders that I make are as follows, in the matter of Zheng:
1. The offender is convicted of the offence.
2. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 3 years, to commence on 17 December 2019.
3. I impose a non-parole period of 18 months, expiring on 16 June 2021.
4. I find special circumstances.
5. The back-up offence is withdrawn.
In the matter of Ma:
1. The offender is convicted of the offence.
2. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 3 years, to commence on 13 October 2020.
3. I impose a non-parole period of 18 months, expiring on 12 April 2022.
4. I find special circumstances.
5. The back-up offence is withdrawn.
6. I request that the medical documentation (Exhibit 1) follow the warrant.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 08 March 2021