R v Ng [2016] ACTSC 88

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Cultivating a commercial quantity of cannabis - parity with cooffender

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

R v Quan; R v Zhang [2014] ACTSC 385

1. The offender pleaded guilty to the offence that, on 17 June 2015 at Canberra, she cultivated a commercial quantity of the controlled plant cannabis with the intention of selling the plants or their products, or believing that someone else would do so.

2. This is an offence contrary to s 616(3) of the Criminal Code 2002 (ACT) which carries a maximum available penalty of 25 years' imprisonment and/or a fine of $375 000.

3. The commercial quantity for cannabis plants is 100 plants. The large commercial quantity is 1000 plants.

4. In the course of investigating a person known as Tuan Anh Le, on 17 June 2015 police executed a search warrant at a house at Nicholls, ACT. They located a sophisticated hydroponic set-up. Four bedrooms and two dining rooms had been converted to facilitate the hydroponic cultivation of cannabis. A total of 116 cannabis plants were being cultivated in the rooms. Some of the plants were of a significant size, as was illustrated by the photographs tendered.

5. In each of the cultivation rooms there was a ducting/ extraction fan system and an irrigation pump system, supplying water from the bathroom. The mains power supply to the premises had been modified before the meter box and the power had been diverted. Equipment such as pots, potting mix, lamps, pipes and pruning shears were located in the laundry, garage and kitchen of the residence.

6. Some cannabis had been harvested and was in the process of being dried, weighed and packaged for sale. Cannabis was drying on a drying rack in the lounge room. Digital scales, vacuum bags and a vacuum sealer were also located. In the kitchen, police located a set of instructions providing for a sixweek program of fertilising and tending to cannabis plants. The instructions set out the required room temperatures over the six-week period and the expected growth rate of the plants. A copy of the instructions is part of Exhibit 1.

7. The lounge area was being used for residential purposes. The offender and cooffender were residing at the premises.

8. The offender's telephone was located on a bed in the lounge room. It contained a text message conversation dated 10 June 2015 between the offender and the co-offender, in which the co-offender provided the co-offender with information concerning the temperature at which the plants were to be kept. The offender's telephone also contained a photograph of a cannabis plant, taken on 13 June 2015 at the Nicholls residence. The telephone also contained a photograph taken on 15 April 2015 at the front of the premises, indicating her presence in the vicinity two months prior to the offence.

9. While the search warrant was being conducted, the offender stated that she had been a tenant of the house for about a month. She stated that she had met a friend named Max in Singapore, and he was lending her money. She did not have a job. She denied growing drugs in the house.

10. The offender is a 37-year-old Malaysian woman who resided in Singapore for six years before coming to Australia. She had a happy upbringing in Malaysia. She maintains good relationships with family members. She was schooled to year six in Malaysia. Thereafter, she worked in tailoring and hospitality industries. She moved to Singapore where she worked as a public bus driver for six years.

11. The offender is single. She has no children. She has no prior criminal record.

12. In August 2014 the offender came to Australia on a tourist visa. Initially, she lived in Sydney with her sister. She says that she worked in a restaurant and bakery in Sydney. In May 2015 she moved to Canberra. While in custody, the offender has been employed as a paid cleaner. She has participated in education classes and is attempting to improve her English. When released from custody the offender may be held in immigration detention until she is removed or deported from Australia, although deportation is not certain.

13. On 4 December 2015, a co-offender, Ms Wong, was sentenced to 11 months' imprisonment on a charge in identical terms. The sentence was to be suspended after the co-offender had served six months' imprisonment, upon the co-offender entering a one-year good behaviour order. The co-offender received a discount on sentence of 20 per cent for the plea of guilty, reflecting a sentencing starting point of 14 months' imprisonment for a plea of guilty in the Magistrates Court. The co-offender had no criminal history.

14. The offender has been in custody since her arrest on 17 June 2015. She was committed for trial to the Supreme Court. When the matter was in the Registrar's list she indicated a plea of guilty. Having regard to the timing of the plea, the strength of the prosecution case and other circumstances, the offender should receive a sentencing discount of at least 15 per cent.

15. Considering the number of plants and the role played by the offender, the objective seriousness of the offence is towards the lower end of the spectrum. That is also the view formed by Walmsley AJ in relation to the sentencing of the co-offender Ms Wong.

16. The offender agreed with the statement of facts, although she said that she had not known that the cultivation of cannabis plants was illegal. She also told the author of the pre-sentence report that she had not helped to maintain the plants, but that assertion was subsequently withdrawn. Interestingly, the co-offender had made similar statements.

17. The offender has been assessed as having a low risk of reoffending.

18. In sentencing the offender, I take into account the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) including the important purposes of general deterrence and the imposition of adequate punishment. I am required to take into account, insofar as they are relevant, matters raised in s 33 of the Sentencing Act and I believe that I have referred to the relevant matters.

19. Considerations of parity are important because the roles played by the offender and the co-offender are virtually identical. It is arguable that the co-offender had a slightly greater role, in that her advice was apparently sought in the text message of 10 June. However any difference was insignificant. There is a significant difference between the offender and the co-offender neither in terms of the objective circumstances of the offending, nor in their subjective circumstances.

20. I have referred to the ACT Sentencing Database, which contains only a small number of matters, which are of little assistance. However, it is apparent that a typical sentence may be between about 18 months and three years' imprisonment and that sentences are often partially suspended.

21. I have been referred to the decision of R v Quan; R v Zhang [2014] ACTSC 385, which involved the cultivation of a commercial quantity of cannabis in residential premises by sophisticated hydroponic means. Of the two offenders that I sentenced in that case, Ms Zhang, played a very minor role indeed, she received a sentence of imprisonment of about eight and a half months. The other offender, Mr Quan, played a much more significant role in relation to the 214 plants that were cultivated in that case. He had had an ongoing involvement over a significant period of time, although the offence charged related to one day only. He received a sentence of two years and three months' imprisonment.

22. In this case, I consider an appropriate starting point for the sentence is 14 months' imprisonment. From that sentence, I deduct approximately 15 per cent for the plea of guilty, arriving at a sentence of 12 months' imprisonment.

23. The offender is convicted and sentenced to 12 months' imprisonment from 17 June 2015. The sentence is to be served by way of a fixed term of imprisonment from 17 June 2015 to today, 27 April 2016, and the remainder of the sentence (which I calculate as 49 days or seven weeks) is suspended on the offender entering into a good behaviour order for a period of six months from today.

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.

13 May 2016 Remove number and street from address Paragraphs: [4]