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7
Court of Criminal Appeal 26 February 2009

Truong v R

[2009] NSWCCA 41

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG OFFENCES CULTIVATION OF PROHIBITED PLANTS ALTERNATIVES TO FULL TIME CUSTODY

Citation: Truong v R [2009] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 26 February 2009
Judges: McClellan CJ at CL, James J, Adams J

Background

The appellant, a Vietnamese-born woman in her mid-forties, pleaded guilty in the District Court to cultivating 189 cannabis plants at a commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985. Police executing a search warrant at her residential property found the plants alongside hydroponic equipment, including fans, heat lamps, and air filters. The street value of the plants was estimated at approximately $378,000.

The appellant told police she had rented the premises to a woman and had merely watered and maintained plants belonging to someone else, for which she was to be paid. She also admitted she knew the plants were cannabis and had kept them because she was in debt. The sentencing judge found the claim that she was simply a caretaker unconvincing, concluding she had taken over a substantial illegal commercial operation.

Sides DCJ in the District Court sentenced the appellant to a non-parole period of 18 months with a further term of two years, applying a 25 per cent discount for the early guilty plea. The appellant appealed to the Court of Criminal Appeal, contending the sentencing judge erred in finding there was no alternative to full-time custody and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by declining to impose a sentence other than full-time imprisonment, particularly given the appellant's personal circumstances, including a dependent child
  • Whether the sentence imposed was manifestly excessive having regard to comparable sentences and sentencing statistics

Decision

The Court of Criminal Appeal rejected the submission that the appellant was a "mere crop sitter." McClellan CJ at CL found that even if the appellant had not initiated the enterprise, the evidence compelled the conclusion that she had taken it over and maintained it for commercial profit. The appellant was not a drug user herself; she was exploiting her own property for financial gain.

On the question of alternatives to full-time custody, the Court acknowledged the appellant's difficult personal history, including her experience as a refugee, the breakdown of her domestic relationship, and the financial hardship following her former partner's departure. It also noted the potential hardship to her dependent child. However, the Court held that these circumstances did not reach the threshold required to justify a non-custodial sentence for commercial cannabis cultivation of this scale.

The Court confirmed that those convicted of cultivating cannabis hydroponically for profit must ordinarily expect full-time custodial sentences, a principle previously articulated in several earlier authorities. While the non-parole period sat toward the upper end of the usual range according to Judicial Commission statistics, the Court found it remained within the permissible range and the ground of manifest excess was rejected.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that commercial hydroponic cannabis cultivation ordinarily warrants full-time imprisonment, consistent with established sentencing principles in cases such as R v Puke and R v Tedesco.
  • Personal hardship, including refugee background, domestic difficulties, and the presence of a dependent child, does not automatically displace the presumption in favour of full-time custody for serious commercial drug offences.
  • A defendant's characterisation as a "crop sitter" or caretaker will be scrutinised closely; where the evidence establishes ongoing management of a commercial operation for profit, that characterisation is unlikely to succeed.
  • Sentencing statistics showing a non-parole period at the upper end of the usual range do not, without more, establish that a sentence is manifestly excessive if it remains within the permissible range.
  • Under the Drug Misuse and Trafficking Act 1985, cultivating a commercial quantity of cannabis carries a maximum penalty of 15 years imprisonment, with substantially higher penalties applying where the quantity reaches the "large commercial" threshold.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Puke (unreported, NSWCCA, 19 September 1997)
- R v Tedesco (1982) 7 A Crim R 430