R v Wong [2015] ACTSC 389

2. Ms Wong be sentenced to 11 months imprisonment, to begin on 17 June 2015.

3. That sentence be suspended on 16 December 2015, after serving 6 months, upon Ms Wong's entering into a Good Behaviour Order for one year.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - cultivating a commercial quantity of a controlled plant - cannabis - supervising plants - offender facing deportation

The Queen v Shrestha [1991] HCA 26; (1990) 173 CLR 48

1. The offender, Ms Wong, who was born on 26 March 1985, pleaded guilty in the Magistrate's Court to one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 25 years imprisonment together with, or alternatively to, a fine of up to $375,000. The offender adhered to her plea today.

2. The matter arises from the police finding her in charge of a highly sophisticated hydroponic set up at an address in Nicholls in the ACT. There were six rooms which had been converted to facilitate hydroponic cultivation of cannabis. There was a total of 116 plants in the six rooms. There was a harvest in various stages of processing. There was a ducting or extraction fan system set up for each room. There was extensive electrical work, as evidenced in photographs which were before me.

3. There were various pots and sprays, and bottles connected with the nurturing of the plants. There was a drying rack. There were various pieces of paraphernalia consistent with their being used as part of the hydroponic process.

4. It was clear from evidence police found at the premises that she was living there. Her DNA, for example, was found on a toothbrush and she conceded that she had been living in the premises for a month. There were fingerprints of the offender found on lampshades in the premises.

5. There were instructions found in the kitchen of the premises. They were in simple English and set out six weeks of instructions for the nurture and tending of the plants. In particular, they dealt with the temperatures that had to be looked for and the expected growth rates.

6. There was contact between the offender and another, who is the co-offender, who has pleaded not guilty and whose trial has not yet been held. There was contact between those two suggesting that directions were given to the co-offender by the offender on how to tend to the plants; this consisted of some messages sent on 10 June 2015 via texts.

7. There was a record of interview on 17 June, in the course of which the offender said that she was Malaysian and that a friend had asked her to live there. She had just eaten and slept there, and she did not know of any plants in the house. She had been staying there for the last month. She did not pay any money to stay there and had not been paid any money. She had a friend called Unga who had worked in Sydney, and another friend, who worked in Sydney as a cook. She did not know what cannabis was and she had not been cultivating cannabis.

8. Ms Wong later, after some negotiation, pleaded guilty to this offence, there having been other offences originally levelled against her.

9. She has been in custody since 17 June 2015. She has never applied for bail but her visa has been cancelled and she has altogether served 171 days in custody.

10. She has no criminal history. It is sometimes said in drug cases that that is of less significance but it is not suggested, in this case, that she was chosen for her role because of her lack of criminal history and she is entitled to be given full credit for that.

11. My view is that, objectively speaking, this offence was at the low end of the scale. For this offence, the range of plants is 100 to 1,000 and at 116, this was towards the bottom end of the scale. By reason of what I am satisfied was a month's supervision only or thereabouts and the limited role of checking the temperature, I am satisfied that her part in the matter was relatively low end.

12. There are some subjective matters referred to in the Pre-Sentence Report.

13. It seems that the offender came here in March 2014 under a tourist visa. She had good relationships with her family. She intends to return to live in Malaysia on her release from custody. She is single and has no children. She did the year 12 equivalent in Malaysia and has had employment in the farming, hospitality and transport industries and worked in a bakery in New South Wales before coming to Canberra. She has worked as a cleaner in the prison system.

14. She has no difficulties with drugs or alcohol, although she has some physical problems, including diabetes. She seems to have been ambivalent about taking responsibility for her offence. According to the Pre-Sentence Report, she took limited responsibility and claims she had been used by others but she did acknowledge the potential impact her offending behaviours could have had on others. It is limited, it is not overpowering, but I take that as some evidence of remorse.

15. Ms Wong has been assessed as of low risk of re-offending. I am satisfied that she has excellent prospects of rehabilitation once she is out of the prison system.

16. I take account of the need for general and specific deterrence.

17. It is clear that only a period of full time imprisonment would be appropriate. Although she is to be deported once her sentence has finished, it is clear from R v Shrestha [1991] HCA 26; (1990) 173 CLR 48, that the sentencing court should not take into account the fact that someone might be deported as reflecting on the sentence.

18. As I have noted, Ms Wong pleaded guilty after some negotiations. I think it appropriate that there be approximately 20 per cent reduction for that.

19. The view that I have come to is that Ms Wong should be sentenced to a term of imprisonment of 11 months. I come to that view having regard to various decisions of this Court which have been referred to me. Notwithstanding the high penalty, the fact that this is towards the bottom of the scale, her good record, her good subjective circumstances and rehabilitation prospects and remorse all lead to that as appropriate.

20. It was urged upon me that I ought regard the period served as sufficient. I do not accept that entirely, but what I do propose is that she be released after six months which means that she will be released on 16 December 2015 and the remaining five months of the period of imprisonment is then to be suspended upon her entering into a Good Behaviour Order for one year.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.