Supreme Court of the ACT|2014-12-15|Before: Murrell CJ

R v Quan; R v Zhang [2014] ACTSC 385 (15 December 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Mr Quan sentenced to two years and three months' imprisonment with a nonparole period of 14 months.

Ms Zhang sentenced to imprisonment from 3 April 2014 to 18 December 2014.

CRIMINAL LAW - Sentence - Co-offenders - early guilty pleas - cultivate commercial quantity of controlled plant - deportation upon release

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

SCC 142 of 2014; SCC 143 of 2014

1. Each of the offenders adhered to a plea of guilty entered at the earliest reasonable opportunity to an offence against s 616(3)(b) of the Criminal Code 2002 (ACT) (Criminal Code) of cultivating a commercial quantity of a controlled plant, being cannabis, believing that someone else intended to sell the plants or their products. Such an offence carries a maximum available penalty of 25 years' imprisonment and/or a large fine.

2. Taking into account the pleas of guilty and other considerations under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the appropriate discount is 25 per cent.

3. The sentences will date from 3 April 2014, the date from which each offender has been in custody.

4. On 3 April 2014, police executed a search warrant at residential properties in Flynn. There they found a sophisticated hydroponic set up. Four makeshift rooms were hidden behind a false wall under the main level of the premises. The police found heat lights, exhaust fans, hosing and all the requirements to cultivate cannabis hydroponically.

5. The police located a total of 214 plants. Twenty-eight plants were approximately 60 centimetres in height, 74 plants were approximately 30 centimetres in height, and 112 plants were approximately 10 centimetres in height. In addition, the police located either 184 or 186 seedlings, each of which was about 5 centimetres in height. The seedlings are not classified as cannabis plants for the purpose of assessing the extent to which the commercial quantity is exceeded. However, the existence of the seedlings and other findings on the search warrant clearly show that the enterprise in which the offenders were engaged was an ongoing enterprise. Apart from the seedlings, police located a large number of root balls, bagged cannabis and loose cannabis some of which were apparently ready for sale. They also found $2000 in cash.

6. The operation bears some interesting analogies with an operation that was occurring in Evatt in relation to which I sentenced two Chinese nationals, Mr Li and Ms Jin, on 23 September 2014: R v Li; R v Jin [2014] ACTSC 304. At the Evatt premises, 371 plants were being cultivated by a very similar technique. Mr Li and Ms Jin, were a couple. Mr Li was the person who was responsible for the day to day cultivation of the cannabis plants. Mr Li and Ms Jin were in the country illegally. Their limited language and resources would have restricted their ability to operate in a normal way within the Australian community. The Crown believes that there is a link between the two operations. A "person of interest" has recently been arrested.

7. Like Mr Li and Ms Jin, it is clear that Mr Quan and Ms Zhang were not the masterminds of the cannabis cultivation operation in which they were involved.

8. The Crown accepted that Mr Quan was living in Sydney when he was recruited to come to Canberra for the purpose of becoming involved in this operation. When he arrived at the house in Flynn, the plants were already present, as was the cultivation equipment. The role of Mr Quan was to water the plants daily, move them around to ensure that they were exposed to an adequate amount of artificial light, prune them and repot them as necessary. Mr Quan asserted that he had no intention to sell the plants himself, although he was aware that somebody else would do so. Ms Zhang's role was minimal. She arrived in Canberra with Mr Quan. It seems that her only role was to water the plants, "on a sporadic basis" and that she "may have moved the pot plants around on a sporadic basis". There may well have been a romantic attachment between Ms Zhang and Mr Quan. At least, there was a friendship. Ms Zhang provided company for Mr Quan. She had little direct involvement with the plants, although her involvement was slightly more than that of Ms Jin in the related case. On the whole, she did not play a significant role and the objective seriousness of her offending conduct is very much at the lower end.

9. I accept the submissions of the prosecution that this was a very sophisticated operation. While the offenders have been charged with committing the offence on 3 April 2014, the offence was part of a series of criminal acts, as is evidenced by the obvious ongoing nature of the cultivation operation and the fact that packaged cannabis was at the premises presumably for the purpose of sending it to a point of sale.

10. The accused appear to be poorly educated. They may have been desperate. They were not the masterminds behind the operation at Flynn. They were isolated by their language and culture and vulnerable to exploitation because they had overstayed their visas. There is no indication that either was to make a significant profit. Indeed, there is no evidence that either was to make any profit from the enterprise. Although they must have had a purpose for being there, one does not know whether it extended much beyond sustaining themselves.

11. Ms Zhang, she is now 51 years of age. She has no prior convictions. She suffers from a range of relatively minor ailments which, taken together, establish generally poor health. Her ailments include high blood pressure, diabetes, hepatitis A and thyroid nodules of uncertain aetiology. She suffers from a major depressive disorder. There has been a suggestion of past suicidal ideation, perhaps related to the fact that she has been isolated within the prison system by language and cultural limitations. She is the youngest of five children. Her parents were factory workers in China. She had minimal schooling but did go to middle school, after which she undertook factory work in China. In 2009, she came to Australia, where she found casual work as a babysitter, cleaner and painter. It was while she was undertaking painting work that she met Mr Quan. She will be deported when she is released from custody.

12. Mr Quan arrived in Australia in October 2004 and his visa expired in December 2004. For the past decade, he has been in this country as an illegal immigrant. He has worked for most of the time that he has been in Australia but, because of a shortage of work in painting, in late 2013, he was recruited to come to the ACT to participate in this enterprise. He also suffers from some physical problems, including arthritis and haemorrhoids which may require operative intervention. He is about 45 or 46 years of age. He comes from a relatively impoverished background in China. He was married. His wife is now in Korea. Presumably, that relationship is over. There is one son of the relationship, who resides in China. The offender's parents are elderly and they are in poor health. The offender's only sibling now resides in Korea, which means that the offender is the only person who may be available to care for his elderly parents. He wishes to fulfil that obligation. When he is released from custody, he will be deported to China.

13. I convict Ms Zhang and sentence her to a fixed term of imprisonment from 3 April 2014 to 18 December 2014.

14. I convict Mr Quan. The starting point for the sentence was three years' imprisonment, but because of the early guilty plea I reduce the sentence to two years and three months' imprisonment. The sentence will run from 3 April 2014 to 2 July 2016. I set a nonparole period of 14 months, to expire on 2 June 2015, and Mr Quan will be eligible for release at that time.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

(Sentencing) Act 2005

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

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Judgment (24 paragraphs)

R v Quan; R v Zhang [2014] ACTSC 385 (15 December 2014)

Legislation Cited (2)