Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2018/00020427
[2]
EX TEMPORE REVISED JUDGEMENT
Vinc Khac Phan pleaded guilty in the Local Court on 16 May 2019 from where he was committed for sentence to this Court upon two charges. The first, sequence 5 in the series of charges H66977361 is in the following terms: that he between the 20th day of August 2017 and the 5th day of December 2017 at Carlingford in the State of New South Wales did knowingly take part in the cultivation of a number of prohibited plants, namely, cannabis plants, cultivated by an enhanced indoor means being not less than the commercial quantity applicable to that plant, namely, 165 plants. The offence is contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985 and has a maximum penalty of imprisonment for 15 years and a fine represented by 3,500 penalty units.
The formulation of the charge is less than elegant, I might say. Lest it be thought that it was intended to say that the commercial quantity applicable to that prohibited plant, namely 165 plants, is a reference to that as the commercial quantity, it should be noted that in Schedule 1 Drug Misuse and Trafficking Act 1985 the commercial quantity specified for cannabis plants cultivated by an enhanced indoor means is 50 plants. Thus, this enterprise involved three times the quantity specified as the commercial quantity for cannabis plants cultivated in this manner.
R v Phan [2019] NSWDC 601 | Case summary | Zoe
The second offence, again contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985, is to be considered in conjunction with s 33 Drug Misuse and Trafficking Act 1985. It alleges that the offender between the 25th day of October 2017 and the 5th day of December 2017 at Parramatta in the State of New South Wales knowingly took part in the cultivation of a number of prohibited drug plants, to wit 288 plants, which is not less than a large commercial quantity applicable to that prohibited plant.
In the course of the presentation of the matter I raised with the Crown the proposition that the cultivation was also by enhanced indoor means, but that particular had been omitted from the particulars in the charge. The Crown also identified the absence of the use of the word "cannabis" in the charge. By consent I allowed adjustment to the court attendance notice to reflect those features of the case, namely, that there were 288 cannabis plants cultivated by enhanced indoor means in which the offender knowingly took part. The large commercial quantity specified for cannabis plants cultivated by enhanced indoor means is 200, thus this was 88 plants above that level.
The penalty provided for this offence is imprisonment for 20 years and a fine represented by 5,000 penalty units. The offence carries a standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999, the period specified is ten years.
The provisions introducing standard non-parole periods set forth in Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 were amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. The Act provides that the standard non-parole period for an offence is that which is included in the Table to the provisions; as I said in this case the period specified is ten years. The standard non-parole period represents a non-parole period for an offence in the Table that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of that offence.
The assessment of objective seriousness has been the subject of consideration by his Honour, Johnson J in Tepania v The Queen [2018] NSWCCA 247 wherein at para 110 his Honour summarised the relevant propositions drawing upon the legislation in its present form requiring consideration by the Court when determining the non-parole period for an offence for which there is a standard non-parole period specified.
His Honour continued at para 112 with the following:
"In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with the material contributed to the commission of the offences or offence, including (if it be the case) a mental disorder or mental impairment..."
His Honour went onto discuss the concept of moral culpability and examples of how that might be modified in the particular circumstances of the case at hand.
I should pause to note that in this case in some of the material tendered there is a suggestion of a possibility of some form of duress which was not sufficient to exculpate the offender. There is reference to his motivation not necessarily being for financial reward, although as has been pointed out by the Crown upon the consideration of the entirety of the material, financial reward must have been the motive. There can be no suggestion of any provocation, but bringing into account what his Honour had to say in that judgement and what is contained in the sections within Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999, I have come to the view that in the case of the offence of knowingly take part in the cultivation of cannabis by enhanced indoor means in the large commercial quantity, bringing into account the role of the offender to which I refer in the discussion of the facts, the offence should be found to be below midrange objective seriousness. It is always a matter of judgement as to where the offence should be placed on the scale and minds will often differ, but in my view for this offender the objective seriousness should be assessed to be somewhere between a point at midrange and halfway between midrange and the low end. Perhaps towards the low end of that limited scale.
The standard non-parole period as is required by the Crimes (Sentencing Procedure) Act 1999 is a matter to be taken into account when determining an appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account, as reflected in the reasoning of Johnson J. The Court must record its reasons for setting a non-parole period that is longer or shorter, identifying each factor that is taken into account; the objective gravity in this case will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, other than as are discussed by Johnson J. I will have regard to the nature of the offending, bringing into account relevant factors that might be found in s 21A Crimes (Sentencing Procedure) Act 1999 both as to aggravating or mitigating factors, except for those that are essential elements or integral characteristics of the offence.
I am satisfied in this case that the offender was engaged upon these enterprises for financial gain. I do not take that into account, however, as an aggravating factor but as part of the factual matrix upon which to assess sentence. It is integral to such conduct that the purpose is financial reward. I am not in a position to make a finding as to precisely what reward the offender was receiving for his involvement in these crimes. The evidence just does not allow me to go so far; the offender did not participate in an interview with police and has not given evidence before me to fill the void in the factual matrix with which the Court is left. I note, however, that he was perfectly entitled to take that position both with the police officers and in this courtroom and he suffers no penalty or adverse finding against him by reason of those decisions.
The fixing of a non-parole period is but part of the task whereby the Court will determine what is the appropriate sentence and that is so regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. I must not embark upon an arithmetical, staged or tiered process of reasoning but must identify all relevant matter in a process of intuitive synthesis, as discussed by McHugh in Markarian v R [2005] HCA 25. I will have regard to the maximum penalty and the standard non-parole period as legislative guideposts, along with other sentencing practices and by reference to matters as particularised in ss 3A, 21A and 22 Crimes (Sentencing Procedure) Act 1999.
I have already indicated where I have placed the objective gravity of the offence carrying the non-parole period. I am of the view that the other offence, which does not carry a standard non-parole period, would fall somewhere about the same point along the scale of objective seriousness.
The offender was identified as a perpetrator in these crimes but not immediately arrested. A court attendance notice was issued in futuro and a warrant for his arrest followed. He ultimately came into custody toward the latter part of 2018. It was not until 16 May 2019 when he pleaded guilty in the Local Court and, although there was some delay, the Crown concedes that in the circumstances a discount of 25% should be applied in each case for the utility that his pleas of guilty have provided.
He has been in custody since his arrest on 14 September 2018. The aggregate sentence I propose shall commence on that date.
When he is sentenced for the knowingly take part in the cultivation of the large commercial quantity of cannabis by enhanced indoor means he asks that I take into account an offence of participation in a criminal group, contrary to s 93T (1) Crimes Act 1900, for which the maximum penalty specified is imprisonment for five years. I will take that into account and I shall certify the Form 1 to confirm that I have done so. The offender acknowledged his pleas of guilty in the Local Court and confirmed his adherence to those pleas in this Court. He also acknowledged his guilt in respect of the Form 1 and his wish that the offence be taken into account.
He will be sentenced to an aggregate sentence determined upon the concurrence and accumulation of the periods I identify as indicative sentences for the two offences. The principal offence, in respect of which the additional offence is to be taken into account, will have a greater period identified, however, to reflect the additional offence to be taken into account. This is to give appropriate weight to the aspect of personal deterrence arising from the extent of his misconduct and the community's entitlement to retribution for all of the offences that are before me. He has gained advantage by taking this course without having to face separate punishment for the additional offence, but he also has provided utility in clearing the slate in this fashion and he must be given benefit for that.
I have reminded myself of the statements of principle by Spigelman CJ and the guidance his Honour there provided in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.
Turning to the facts; this is another example of an offender who has come to this country from Asia - in this case Vietnam - under the authority of a visa granted to him by the Commonwealth of Australia, upon the expiration of which he overstayed his opportunity to be here. He was admitted to this country, I am told, to be able to pursue his studies in IT but through difficulties, that I shall address in due course, could not continue with those studies and held over his stay in Australia and, in perhaps challenging circumstances where he had limited financial resources, he participated in these criminal enterprises in which there was cultivation of the cannabis in the manner charged.
The evidence does not allow me to conclude that he is a principal in the enterprise but he is, in my view, clearly someone above the role of crop-sitter. He had important roles to play, which are described in the facts before me, over an extended period of time. It is difficult where to place him in the hierarchy but it is significant to note that he must have had some measure of trust extended to him by those with whom he was engaged because he was involved in two enterprises by means of which this cannabis was being cultivated and he performed significant roles as I shall outline.
There is a co-offender named Phan who is to be sentenced in this Court. Those proceedings are yet to be resolved.
Another offender, Duong Dai Le, was sentenced on 4 May 2018 to one count of cultivating a prohibited plant in a commercial quantity, with a further offence of using electricity without consent on a Form 1. He was sentenced to imprisonment for 18 months with a non-parole period of 12 months. I have the facts that were before his Honour Judge O'Brien for the determination of that sentence. I have his antecedents, which have him born in 1993, without any antecedent criminal offences in this country, and I have his Honour's judgement on sentence. He was dealt with as a mere crop-sitter with a very limited role in respect of one of the premises, those at Carlingford, and thus it is not surprising that his sentence fell within the range adopted by his Honour, allowing for a discount of 25% for the utility of his plea of guilty. Moreover, there was compelling evidence of contrition and remorse in that case. When he was arrested he cooperated with the police officers, participated in an interview and made disclosures regarding his role and the benefit that he derived from his participation in that particular plantation.
It was suggested to me on behalf of this offender that parity would have a role to play in the determination of the sentences for this offender. I do not agree with that submission. As was made clear by the Crown in his submission, this is a different case, involving more than one charge, and with this offender engaged upon a more extensive role.
The facts are as follow. I should point out they do not necessarily follow the chronology reflected in the way the charges were addressed earlier in the judgement but seem to follow the sequence of the investigation as it unfolded.
The offender was in this country at all material times unlawfully as a consequence of his staying beyond the terms of his visa as I have indicated. In July 2017 the State Crime Command Drug Squad began investigations into the cultivation of cannabis across north-western Sydney.
The facts deal first of all with the offence at Victoria Road, Parramatta; that is the subject of the charge in sequence 6, the cultivation of the large commercial quantity of cannabis plants.
Around 10am on 25 October 2017 the offender and another man named Chu were captured on closed circuit television entering Avis Rent A Car at Revesby. I have images that were harvested from that product; clearly the offender is seen with Chu at the service counter engaged upon the transaction in which using his own name the offender hired a white Toyota Hi Ace van. They both provided their licences in their names as proof of identity and Chu paid for the vehicle using a credit card. About 10.10am the offender drove the vehicle from the Avis car park and about 3.02pm the police observed the van parked in the driveway of the premises at Victoria Road, Parramatta. The offender and another unidentified Asian male repeatedly moved large objects between the van and the house. About 3.23pm the unidentified male entered the driver's seat of the van and the offender entered the front passenger seat and the vehicle was driven off towards Parramatta.
About 10.30am on 28 October 2017 the offender returned the van to Avis at Revesby; he was captured on closed circuit television entering the passenger seat of a Volkswagen Passat which then departed from the Avis car park. At about 2.51pm that day the Volkswagen Passat was seen in the driveway of the premises at Parramatta; this is registered to a person of the name Nguyen or was so at the relevant time. About 6.35pm on 19 November 2017 the police again saw the Volkswagen Passat in the driveway of the premises.
At about 6.39pm the police saw another Toyota Hi Ace pull into the driveway behind. The Hi Ace was parked very close to the side of the house; the sliding door was adjacent to the side entrance to the premises. About 6.50pm the offender and two unidentified Asian males moved back and forth between the van and the house taking objects from the vehicle and carrying them inside the house. The offender was wearing gloves, a significant point in light of submissions that were made to me on behalf of the offender. DNA matched to the offender was found on the inside of a glove found at the premises. It was said to me that I could not be satisfied beyond reasonable doubt that the content of para 12 where he was said to be seen wearing gloves could be necessarily connected with the gloves that were found at the premises. Either way it would not be a difficult inference to draw, in my view, that gloves found at the premises with the offender's DNA in one of them were used in some role upon which the offender was engaged in conjunction with the cultivation of the cannabis at these premises.
About 7.10pm the van reversed from the driveway and drove towards Parramatta. There is an image in the facts of this Hi Ace van with the offender removing an object from it and into the premises.
The facts then deal specifically with the conduct upon which sequence 6, the charge involving the large commercial quantity, has been prosecuted. About 8.15am on 5 December 2017 the police entered the premises under the authority of a warrant. The house was used to cultivate cannabis by enhanced indoor means. Six rooms of the house contained a total of 288 cannabis plants at various stages of maturity, 63 of them were more than one metre in height. There was an elaborate system of heat lamps, reflectors, charcoal filters, irrigation pipes and timers installed to facilitate the cultivation of the cannabis plants. The windows were either covered in plastic or boarded up and the walls and floor of each room were covered in white material. The police found a large bank of transformers and power boards in the hallway between two of the main grow rooms, technicians from Endeavour Energy inspected the property and determined that the electricity supply had been bypassed providing an unmetered supply of electricity to the residence from the main power grid. The estimate of the electricity used daily by this illegal bypass totalled $315,786.82.
It was said on behalf of the offender that there is no evidence to suggest that the offender was responsible for the installation bypassing the electricity and the theft of the electricity to that value but this was a joint criminal enterprise which involved the use of illegally obtained electricity for the cultivation of these plants and regardless of who it was who actually made the necessary connections and installed the equipment the offender's participation in the enterprise must carry with it a measure of responsibility for that aspect of the crime. There is a series of images showing the plants as they were found in the premises together with an image of the electrical apparatus by means of which the power source was accessed by way of a bypass.
In the hallway of the property police found a pair of blue and white gardening gloves and as I said the offender's DNA profile was found on the inside of the right hand glove. In the bathroom there were large tubs of liquid fertiliser, there were bags of Canna Coco growing medium on the floor in the hallway. There are images of those items.
Enquiries were made with Harcourt's at Carlingford, the real estate agency that managed this property. The residential tenancy agreement was provided to the police; the property had been leased on 16 September 2017 to a female using the name Lucy Kim. Kim was in fact the person Ngan Thi Phan who appeared in this court on 26 September 2019. She is a Vietnamese national who rented the property using fraudulent identity documents. She pleaded guilty to the offences in relation to these premises and is to appear for sentence on 16 December 2019 in this court.
Harcourt's also provided the police with a copy of a National Australia Bank deposit slip bearing the date 27 September 2017 for a cash payment of $2,350. There is a reference entered on that slip "Ref 133" and the name of the depositor was entered by way of a telephone number 0402 XXX XXX. When the real estate agent telephoned the number an unknown person confirmed that the payment represented rent for these premises. This is the number that the offender provided to Australia Post for a post office box held in his name and is the same mobile number that the offender provided when he leased the storage units at Rent A Space in Padstow, discussed later in these reasons.
The next topic in the facts is the offence at 105 Jenkins Road, Carlingford, the premises the subject of the offence of cultivating cannabis in the commercial quantity. About 7.15pm on 20 August 2017 police were conducting physical surveillance of the premises at 105 Jenkins Road, Carlingford. They saw the offender Duang Dai Le park a Toyota Camry in the vicinity of Jenkins Road; this was registered to Le at the relevant time. About 7.23pm the police saw Le approach these premises as he looked up and down the street. About 7.25pm the same day the police saw a Toyota Orion parked off centre in the driveway of the premises with the passenger side door very close to the gate used to access the southern side of the house. This vehicle was registered to the offender at the time.
On 2 November 2017 the offender hired another Toyota Hi Ace from Avis Rent A Car in Hurstville. He hired this vehicle in his own name. About 11.15pm on 5 November 2017 the police saw the Toyota Hi Ace parked in the driveway of the premises at an unusual angle, the passenger side door appeared to be open and was positioned very close to the gate used to access the southern side of the property. Soon after, police observed the Toyota Camry belonging to Le parked, unoccupied, about 200 metres from the premises.
On 5 December 2017 police arrested Le and charged him with cultivation in relation to these premises. They seized his mobile phone which they unlocked and inspected.
On 2 December 2017 they identified that he had received a call from the phone number associated with the offender to which I earlier referred and on 3 December 2017 he had telephoned the offender's number twice. On 4 December 2017 there were text messages between the two phone numbers in Vietnamese. On 1 December 2017 Le had telephoned another mobile service number 0434 252 470, that is the number that this offender provided to Avis Revesby on 25 October 2017 when he hired the Toyota Hi Ace which was used in the offence charged in respect of the Parramatta premises.
The facts then proceed to deal specifically with the charge of knowingly take part in the cultivation of the commercial quantity of cannabis at the Carlingford address.
About 7am on 5 December 2017 the police entered the premises; they located a total of 165 cannabis plants at various stages of maturity growing in five rooms in the house. There was a sophisticated reticulation system and a network of heat lamps that had been installed to nurture the plants. The windows of the property were covered with plasterboard sheeting. Integral Energy attended the premises and found that the power mains had been illegally bypassed to provide unmetered electricity to the property.
With regard to the storage units at Rent A Space in Padstow to which I earlier referred, on 21 June 2018 the police obtained search warrants for units 817 and 818 at those premises. Inside unit 817 the police found a bag of bamboo stakes and numerous 50 litre bags of Canna Coco growing medium and tubs of liquid fertiliser. The fertiliser, Canna Coco and bamboo stakes were of the same type as the police found on the execution of the search warrant at the Victoria Road, Parramatta premises. The storage unit 818 was empty; there are images in the facts sheet of the interior of those units. The storage agreements for the two units were accessed, the offender rented the storage units in his own name on 31 May 2018 and provided Rent A Space with a copy of his driver's licence issued in New South Wales and gave his contact mobile number as 0402 XXX XXX, the number to which I earlier referred.
The facts then turn to the investigation and arrest. As I noted earlier he could not be located immediately and future court attendance notices and a warrant issued. On 14 September 2018 he was arrested during a vehicle stop at Strathfield, he was remanded in custody and on 3 December 2018 at the MRRC at Silverwater with the presence of a Vietnamese interpreter he declined the opportunity to participate in an interview. He did consent to the provision of a buccal swab. He was then charged with the additional offences that were brought in relation to the Carlingford address.
As to the Form 1 offence of participation in a criminal group the facts tell me that he is part of a criminal group together with Phan Le and others unidentified seen at the two properties. The purpose of the criminal group was to grow, harvest and sell hydroponically grown cannabis for commercial gain operating from leased premises under false identity details in order to facilitate the cultivation of commercial quantities of cannabis undetected by authorities.
Born in 1988, he is now 31 years of age or will shortly be of that age. He has no record of antecedents in this country and it appears he has a clear record in Vietnam.
Material tendered in his case includes the document with the heading Petition, which is a translation from a handwritten document provided in Vietnamese. This is provided by his father, who served as a traffic police officer in Ha Tinh Province in Vietnam. There is reference in this document to the offender's parents, his upbringing and the qualities he had in his formative years, being an obedient child who excelled at school. He was allowed in due course to travel to Australia to study. His parents borrowed to facilitate that opportunity. They wanted him to improve himself in this country with the opportunities it has and had for him to do so. In 2014, however, the family business in Vietnam failed. His father became sick and he had to retire. He then became financially imperilled and that prevented them being able to continue with assistance to their son in Australia. The father has expressed dismay at the very least at the decision his son made to involve himself in these crimes.
There is a document provided by his partner, who I see is sitting in the back of the Court. It is quite apparent that she has great affection for the offender and would expect their lives together to continue; unfortunately his decision to involve himself in these crimes is preventing that. She has known him since 2011. She speaks of his work ethic, but a limited opportunity to earn other than minimal income. She speaks of him, having visited him in gaol regularly. She attributes to him the proposition on the last occasion that he did not think his job as deliveries at the time were offending and that when he finally realised he was taking part in a crime he almost broke down.
He at no time told her about the nature of the work he was involved in in delivering items, as he described it. She saw that he was very tense; he seemed to have something to think about, looked exhausted and was lacking sleep. She expected that was because of hard work and that he had the good sense not to make any such mistakes as those that have brought him before this Court. He is attributed with embarrassment and remorse. She speaks of her love and affection for him and their dream of starting a family in due course. He is attributed with understanding of the irreversible damage that his conduct and the past wrongdoing brought upon him, his future and his family, and he is attempting to do what he can to right his wrongful conduct. She asks me to extend leniency to him.
There is a psychologist report which was written upon an assessment made by way of an audio visual link and I will repeat what I have said on a number of occasions. The ability to assess someone must be compromised when that is the medium through which there is an attempt to assess the subject of a report by a psychologist or psychiatrist. The limitations are often recognised in the report that is tendered after that occurs. I accept that it can be difficult with someone in custody getting access to them for the required time to have a meaningful interaction and that quite often an audio visual link is the more convenient opportunity but it does require the Court to approach the report with appropriate circumspection as is required as a consequence of the fact that the offender has not given evidence before me and I have nothing by way of an interview in which he might have participated with police. As Smart J said in R v Qutami [2001] NSWCCA 353:
"Statements made were attributed to a person made out of Court and represented by friends or psychologists are admissible but they require considerable caution before the Court can rely upon them in the absence of evidence from the offender".
The offender presented well to the psychologist. His history is discussed. He was brought up in a loving family. There is nothing in his background or his formative years that can explain why he would turn to such criminal misconduct as I have to deal with today, except that one might say that his devotion to his family has to some extent informed the decision he made to participate in these enterprises for the financial gain. There is an absence of evidence as to precisely what reward he got from his role. I have nothing before me as to what money if any he remitted to Vietnam to assist his family but I am asked to find and extend leniency upon the finding that his motivation in this crime was to help out his family and relieve financial stress back in Vietnam. His efforts at study in this country are discussed and his decision ultimately to stop university classes and relocate to Sydney from Melbourne where he gained work as a house painter and a handyman. Then he is attributed with work a delivery driver.
The combination of representation attributed to him suggests that his role in this case was of delivery driver at the behest of others in the enterprise. I am not prepared to find that that was how he was engaged in this case. The findings by the police in the storage units, their observations of him, his role that he played in the acquisition of the motor vehicles from Avis, by way of rentals at least, and his participation in the transaction all suggest that he was involved beyond the level of a mere delivery driver. I am satisfied beyond reasonable doubt that he should be seen in the light of at the higher level.
It was said to me that he demonstrated such lack of sophistication that I would find it more probably than not that he was something of a pawn in the hands of others involved in this enterprise; I paraphrase in that summary. I do not agree with that; the fact that he was willing to use his own licence and a mobile phone number to which he subscribed no doubt made it easier for the police to develop their case for presentation to the prosecuting authority. I would agree that there does seem to be a limited measure of sophistication in the way he went about his affairs in this enterprise but that is of limited significance in his favour in my view. There could be no finding other than he was well aware of what was going on and that he played instrumental roles in both enterprises with which he is charged. The suggestion that he was doing odd jobs for the associate, such as going to the bank, I would not accept as a fair description of his role in these enterprises.
The proposition in para 16 of the report that he felt worried when he saw the cannabis plants at one of the residences and that he spoke to his associate and was told to keep it a secret, I find difficult to accept. There is reference to the financial distress he was experiencing at the time and his obligation that he felt to provide assistance to his family; I would accept that aspect of the representations that are made or are attributed to him. But with all due respect to the submissions it does not go far in mitigating his misconduct in this case. It certainly explains why he was involved however.
There is reference to his relationship history. He does not use substances illicitly. There is no suggestion of medical or psychiatric problems. His limited psychometric testing that was undertaken revealed nervousness, lack of energy and low mood but these should be assessed according to the psychologist against his predicament of incarceration, financial stress and social isolation in this country particularly while he is in gaol. There is reference in the report in para 24 to him feeling scared and threatened by his associate when he went to speak to him. I raised this and the reference to that in his Sentence Assessment Report in other terms. The suggestion of any coercion or duress was abandoned and is not relied upon at all on behalf of the offender. I would accept the proposition that he presented with a strong sense of loyalty and obligation towards his family, that would seem to me to be entirely consistent with all of the material. I will accept that his commission of the offences was in the context of increasing financial strain and his obligation to assist his family back home.
The Sentence Assessment Report was said to be an objective document which I would find persuasive in favour of the offender, the report having been repaired from an objective source by way of a Community Corrections Officer. The difficulty with that proposition is that all the Community Corrections Officer can do is regurgitate what was given to her by the offender in response to questions that she might have put to him. There is no basis upon which I can assess the veracity or reliability objectively of the representations attributed to him. For example, under the heading "Attitudes" he is attributed with having seemingly diverted responsibility to his co‑offenders "Who allegedly threatened him with which perpetrated (sic) his offending behaviour". As I said any suggestion of a non-exculpatory duress has been disavowed.
Under the heading "Social influences" he is said to have continued to participate due to feelings of duress by his co-offenders. Again, I put that to one side. There is reference to his significant financial pressure. There is reference to him being employed in two casual roles and earning sporadically between $500 and $600 per week. It is not clear to me to what that relates. He is attributed with recognition of the harm his misconduct has caused. He is assessed with a low risk of re-offending and what would follow should he be given a community based sentencing option.
It is conceded that the line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and no penalty other than a sentence of imprisonment is appropriate in the circumstances of this case.
All of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged in this case. General and specific deterrence have their role to play. The frequency with which people come to this country from Asia to engage upon conduct such as this requires that the Court give appropriate weight to general deterrence so that it be known that if someone such as this offender tempted into a role participating in the cultivation of cannabis, whether as a crop sitter or at a higher level such as I find this offender to have engaged upon, they will suffer appropriate punishment. I agree that upon the material I have protection of the community from the offender plays a lesser role. I also would accept that in light of this prosecution and what has befallen the offender, his prospects of rehabilitation are good, he must be made accountable for his conduct, I must denounce the conduct upon which he has engaged and I need to recognise the harm done in his participation in this crime.
There is much debate in the community about the decriminalisation of cannabis; indeed I have returned recently from the United States of America where in some states the use of cannabis has been decriminalised and is available. From my observation it seems, and this is anecdotal only I might say, that there has been a corresponding increase in other problems specifically in the context of mental health in those jurisdictions. My experience as a member of the New South Wales Bar in criminal practice dealing with murder trials revealed to me a number of cases where people who had a propensity for mental health issues by way of schizophrenia or otherwise were vulnerable to the onset of symptoms or the exacerbation of symptoms by the use of cannabis. It causes grave concern when offences such as this coming before the Court. Cannabis is not a safe drug, it is a dangerous drug, it is a prohibited drug by reason of its nature and it is properly in my view an appropriate punishment in this case when someone engages at the level of this offender that he should suffer incarceration.
In terms of aggravating factors I am not satisfied that there are any that I should bring to account; the fact that this was by financial gain is part of the overall nature of this type of enterprise; I would give him the benefit of the plea of guilty. It was said that he has demonstrated contrition and remorse by reason of that, which I accept. It was said that it should be attributed appropriate weight of course because the Crown case might not have succeeded, I do not agree with that proposition; upon my assessment of the material before me if there is evidence available that will prove the facts that are summarised I would have thought that a conviction was inevitable before a jury.
I note he has no prior record and that apart from this he would be seen as a person of otherwise good character.
The indicative sentences I have identified for these offences; first of all for the offence of knowingly take part in the cultivation by enhanced indoor means of the commercial quantity of cannabis I have specified 2 years and 3 months applying the discount of 25% to the assessment of what would have otherwise been the sentence allowing for the utility of his plea of guilty. The discount of course applies to the determination of sentence brining into account contrition and remorse and all other aspects of the case. In respect of the knowingly take part in the large commercial quantity allowing a discount of 25% and taking into account the Form 1 offence I have specified an indicative sentence of 4 years and 6 months that will include a non-parole period of 2 years and 6 months, there being a standard non-parole period offence I am obliged to identify what would have been the appropriate non-parole period. The aggregate sentence I impose is one of 5 years and 6 months with a non-parole period of 3 years and 6 months commencing on 14 September 2018, the non‑parole period expires on 13 March 2022, and the parole period expires on 13 March 2024.
I find special circumstances by reason of the fact that this is the first time the offender has been incarcerated, he is Vietnamese, English is not his first language, and he is to some extent isolated in this community other than for his partner who has attended court in support of him today.
Thus the offender is convicted of each of these offences, the sentence I impose is one of imprisonment of 5 years and 6 months including a non‑parole period of 3 years and 6 months commencing on 14 September 2018 expiring on 13 March 2022, the overall sentence to expire on 13 March 2024.
Sequence 2 is to be withdrawn.
[3]
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Decision last updated: 25 October 2019