R v Vu

Circumstances of offending

1. The offending occurred in the period from 12 May 2020 to 17 June 2020 at premises at Leonay.
2. Agreed Facts were placed before the Court. They reveal that the offending was detected by police in the period from May to June 2020 during a strikeforce investigation conducted into organised criminal activity in the Sydney region. The premises where the cannabis plants were located had been identified.
3. After earlier repeated sightings of the offender and his motor vehicle at the subject property, the offender was apprehended by police on 17 June 2020. The offender voluntarily participated in an ERISP and consented to forensic procedures.
4. On 17 June 2020, police executed a search warrant at the property. They found a property comprising 10 active grow rooms which were fitted with sophisticated hydroponic equipment, including lights, lamp shades, fans and exhaust systems. 478 cannabis sativa plants were located and seized. 115 of them were over one metre in height.
5. A representative from Endeavour Energy attended the execution of the warrant. In the course of inspecting the electrical system, he observed illegal bypasses connected to the property's main power switchboard, which was diverting unmetered power to sub-boards located throughout the dwelling; which powered the hydroponic equipment. The bypass allowed electricity to be used inside the house without being recorded on the meter. Approximately $659,126 worth of electricity was unlawfully stolen.
6. The offender admitted his involvement in the cultivation process during his ERISP. He explained that he grew the plants in exchange for payment in the sum of $300 each day. He admitted routinely watering, fertilising, harvesting and drying the plants.

Objective seriousness

1. In Tran v R [2018] NSWCCA 220, the Court of Criminal Appeal at [79] said that the mischief which the legislative scheme sought to address was to suppress a lucrative market where valuable crops were cultivated in places which were effectively hidden in plain sight in urban communities.
2. For offences of this kind, the usual factors weighed when evaluating the objective gravity of the offending include the scale and sophistication of the cultivation and the role of the offender, as principal or babysitter, of something in between (Andreata v R [2015] NSWCCA 239 per Beech-Jones J (Ward JA and Adams J agreeing) at [46].)
3. The financial gain sought to be made is highly relevant to the assessment of an offender's criminality in a case of cultivation: Nguyen v R [2007] NSWCCA 94 at [19]-[21]; Gattellari v R [2007] NSWCCA 5 at [7].
4. Although the Crown treated it as an aggravating factor, I prefer to treat the motive of financial gain as relating to the objective seriousness rather than as a circumstance of aggravation.
5. For reasons I will shortly turn to when assessing the offender's subjective case, I find that he was not motivated by financial greed. He was, in fact, earning modest remuneration from criminality which he entered into due to a conjunction of events occurring from 2019.
6. The Crown submitted that the offending fell below the mid-range of offending in circumstances where: 1. The offender's role was to water, harvest, fertilize and dry the plants; 2. The on-going nature of the criminal enterprise, suggested by the differential size of the plants and the use of 10 active growing rooms and hydroponic set-up; and 3. The number of the plants seized, being more than two and a half times the large number of quantity (ie 200 plants), for the purpose of the particular offence.
7. The offender submitted that his role was fairly low in the hierarchy. He was paid a small amount of money to regularly care for the plants, he was a 'mule' who took on the greatest risk of exposure for only modest remuneration. There was no suggestion he was instrumental in setting up the enterprise or was involved with the distribution or supply of the drugs. His Counsel submitted that his offending fell well below the mid-range of offending of this kind.
8. I find that the offending fell below the mid-range of objective gravity for offending of this kind. Indeed I prefer Counsel for the offender's characterisation of it as falling well below the mid-range.

Form 1 offence

1. When he gave evidence in relation to the subject of electricity in the sentencing hearing, the offender said that the only thing that he did was to change lightbulbs. That evidence was not challenged. It appears that the offender was ignorant of this particular offending.
2. The value of the electricity stolen was significant and cast a light upon the scale of the criminal enterprise; as well as causing significant loss to electricity distributors. Nevertheless, the lack of any meaningful role or even appreciation of the consequence of his criminality in this regard, serves to dilute somewhat the considerations of retribution and specific deterrence ordinarily elevated in the sentencing exercise for the principal offence.

Offender's subjective case

1. The offender is 53 years of age, or was aged 52 at the date of his offending.
2. The offender is Vietnamese. He migrated to Australia in 2007 with his son. He has had a long history of employment and prior military service.

Explanation for offending

1. Until 2019, he worked in two fish shops, but in 2019, he fell ill when he suffered a kidney and blood disorder. This was seriously disabling - tax invoices issued by the hospital indicated that he was in a hospital bed for 6 days. Because of 'immigration issues' surrounding his attempts to obtain Australian citizenship, he was unable to avail himself of the ordinary receipt of Medicare or Centrelink benefits that may have assisted him to defray or meet the expenses for his medical treatment. Under cross-examination, the offender was vague about the nature of his 'visa issues' having regard to the length of time he has already spent in the country, but I nevertheless infer that the offender would have availed himself of whatever means he could obtain from social security benefits to meet the debt.
2. The offender wound up with a substantial debt, which, he informed the corrections officer, now amounts to approximately $30,000. Because of his ill-health, he was unable to resume his work in fish shops.
3. He came to become financially dependent upon his son. However, in early 2000, before the full impact of the Pandemic hit these shores, the offender's son went to Vietnam for a holiday and because of the Pandemic he has as yet been unable to return to these shores.
4. He reported to his psychologist that he took to gambling in 2019. He explained in his evidence, and I accept, that he was motivated to gamble because of his financial anxiety surrounding his debt (and the interest accruing on it).
5. The offender relied upon a report from a psychologist, Mr Awit. The offender reported to Mr Awit that he had started to suffer psychological problems even before his kidney and blood disorders; which were, in turn, exacerbated by the more specific serious health concerns and his son's inability to return to this country after his holiday in Vietnam in early 2020. Mr Awit diagnosed a generalised anxiety disorder, major depressive disorder and gambling disorder.
6. It is suggested that it was his loss of employment following the more specific health concerns which triggered what his Counsel described as isolated conduct. There was no serious suggestion that any of the matters referred to indicated some mental abnormality which could be said to have had a firm connection with the offending. There have been some very vague indications in the psychologist's report but I do not find any causation.
7. Whilst he accepts that he was motivated by financial gain, the offender argues that there were extenuating circumstances, in the sense that he suffered financial distress from a large medical debt arising from medical treatment in hospital that he received in 2019. His Counsel argued that it was not greed, but his need to meet his rental obligations, medical debts and an associated gambling habit which explains his financial motivation.
8. As I had foreshadowed earlier in these remarks, I accept that it was not greed, but a combination of circumstances which, collectively, contributed to a sense of financial desperation, which drove the offender to his criminality.
9. This is no excuse for the offending. It did not emerge from the cross-examination of the offender that he was completely unable to make ends meet from legitimate work following his specific health concerns or what efforts he made to obtain work. The fact that he engaged in the offending conduct itself indicated some labouring capacity. That said, I infer that, to some degree, at least from the middle of March 2020, given the onset of the Pandemic and periodic restrictions imposed by Government, it would not have been easy to pick up new (legitimate) employment.
10. He has no prior criminal history, which entitles him to a degree of leniency.
11. The offender placed before the Court two written references, from his daughter and a former work acquaintance. Both spoke of the offender's good work ethic and his remorse. I accept that his offending was out of character. Nevertheless, good character carries less weight in offences involving drugs than many other offences: R v Cheikh [2004] NSWCCA 448 at [50]; R v Leroy [1984] 2 NSWLR 441. So often this Court observes that those higher up in drug syndicates use persons of good character, who have hit upon hard times, as foot soldiers in their enterprise. But that only succeeds when the offenders allow themselves to be used in this way. Although this consideration has limited weight, along with the absence of prior criminal history, it is relevant to the consideration of rehabilitation.
12. The offender is entitled to a discount of 25% on account of his guilty plea. This followed earlier admissions to the police.
13. The offender expressed remorse and regret to his psychologist and the corrections officer. I accept that he is remorseful.
14. Generally, the Crown accepts that his subjective considerations point, collectively, to a degree of leniency.
15. He was assessed by Mr Awit and the community corrections officer as being of a low risk category of recidivism. In the case of the community corrections officer, at least, the offender's insight into his offending was described as only 'cursory'.
16. There is not much to support any strong finding as to the offender's rehabilitation prospects. There was a report of the offender's service as a kitchen hand in the correctional centre where he now is. I have no difficulty accepting his desire to work. But although there are generalised expressions of support from his daughter, there is little to indicate what capacity the offender, or his family, has or have to meet a debt which the offender estimated to the corrections officer as being $30,000. His Counsel postulated that it may be possible for the offender to enter into a payment plan with the South Western Sydney Local Health District. However, that begs the question of why that idea had not been considered in the period of about 9 months since the medical bills were issued. Of course, the attitude of the Health District is not currently known. The Court cannot form any strong conviction that, faced with continuing financial distress after his release, he will not succumb to gambling again, which would only aggravate his problems.
17. Against this, there is some level of hope, based upon his prior good character, absence of criminal history, the sense of remorse and the deterrent effect of his period in incarceration that he will not resort to criminality again as the way out of his problems. I accept also a willingness to engage with the counselling, including financial counselling, which Mr Awit says that he needs to stave off the tendency to re-engage in crime. Nevertheless, his prospects of rehabilitation are guarded.

Instinctive synthesis

1. I take into account the maximum penalty and standard non-parole period as the legislative guideposts for the principal offence. The principal offence is plainly very serious in nature.
2. I have regard to each of the considerations set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Plainly, general deterrence is of overriding significance. I have noted that the considerations of specific deterrence and retribution are naturally applicable. As with all drug-related offences, further protection of the community and making drug offenders accountable for their criminality and the need to denounce the offending conduct all have force as important considerations. However, the offender has, until this offending, led an unblemished life, albeit not one without struggle. His 'fall from grace', to use the expression of his Counsel, was precipitated by a conjunction of unfortunate events, occurring at about the same time, which were not entirely within his control and he is entitled to some leniency on that account. The prospects of the offender's rehabilitation is a more subsidiary consideration, though, as will shortly be remarked, it has a role to play when considering whether to vary the non-parole period.
3. In my view the s 5 threshold is crossed. This was not disputed by the offender's counsel.
4. Given that this will be the first time the offender will be in custody after sentence, and the desirability of his obtaining assistance to deal with some underlying psychological issues to assist with his re-integration into the community after his release, I find that there are special circumstances to vary the non-parole period.
5. The term will be backdated to the period that the offender entered into custody, which is 17 June 2020.

Sentence

1. Mr Vu, you are convicted of the offence being sequence 1.
2. Taking into account your guilty plea, and also the offence on the Form 1, I sentence you to a term of imprisonment of 3 years and 9 months, commencing on 17 June 2020 and expiring on 16 March 2024. I set the non-parole period of 2 years and 3 months, expiring on 16 September 2022 after which you will be eligible for release on parole.
3. I direct that Mr Awit's report, dated 27 May 2021, which relevantly contains a Treatment Plan, be brought to the attention of the person(s) responsible for the offender's supervision whilst in custody.
4. The Court has been presented with a written consent order, by which the offender consents to payment of the sum of $2800 being paid to the State as a drug proceeds order under s 29(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW).
5. By consent, the Court also makes a drug destruction order under s 39F(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

Amendments 02 June 2021 - Fixed typo 02 June 2021 - Fixed typo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2021