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District Court 1 October 2010

R v NONG

[2010] NSWDC 227

Drugs
CRIMINAL LAW SENTENCE LIMITED INVOLVEMENT PRINCIPLE OF PARITY

Citation: R v NONG [2010] NSWDC 227
Court: District Court of New South Wales
Date: 1 October 2010
Judge(s): Berman SC DCJ

Background

The offender, a Chinese-born man in his late thirties, pleaded guilty at an early stage to knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means. The offence arose from a cannabis growing operation at premises in Bexley, involving 227 plants. Police surveillance, telephone intercepts, and a covertly installed listening device placed the offender at the site on multiple occasions from late December 2008, with recordings capturing him cutting and watering plants in mid-February 2009.

The offender's role was characterised as relatively limited within a broader group. Notably, he declined to attend the final harvest later that month, a fact captured in covert police recordings. He had no criminal history in Australia, claimed the offence was motivated by gambling debts, and had been in custody on remand since March 2009.

A co-offender, referred to as Mr Li, had been sentenced just days earlier by Judge Norrish QC. The principle of parity, which requires that co-offenders not receive sentences so different as to create a justifiable sense of grievance, became a central consideration in the sentencing exercise.

  • What was the appropriate sentence for a person with limited involvement in the indoor cultivation of a large commercial quantity of cannabis?
  • How should the standard non-parole period of ten years, set by the legislature for this offence, function as a guidepost where the offender had pleaded guilty?
  • How should the principle of parity apply given a co-offender had already been sentenced by a different judge?
  • Whether special circumstances justified varying the statutory ratio between the non-parole period and the additional term of the sentence.

Decision

The court assessed the objective gravity of the offending as falling significantly below the mid-range. The offender pleaded guilty to being "knowingly concerned" rather than a more direct form of participation, the quantity only just exceeded the large commercial threshold, and his involvement was limited. The court declined to treat the presence of 90 immature propagating plants as a meaningful mitigating factor, noting the group's clear intention was for those plants to grow.

The standard non-parole period of ten years remained a significant sentencing guidepost, even though it did not apply directly because of the early guilty plea. The court acknowledged the legislature's clear intention to treat this category of offence seriously, and noted that existing sentencing authorities may not yet have fully reflected that intent.

Parity with the sentence imposed on Mr Li by Judge Norrish was a dominant factor. The court expressly stated it was imposing a sentence considerably more lenient than it would otherwise have imposed, in order to avoid the offender having a justifiable sense of grievance by comparison. The court noted that if a Crown appeal against Mr Li's sentence were lodged and succeeded, part of the basis for this approach would fall away.

A finding of special circumstances was made, this being the offender's first period of custody. The court accepted that supervision on release would be beneficial, while acknowledging the practical difficulties posed by the language barrier, and noting that those difficulties could not be held against the offender.

Orders Made

  • Non-parole period of 20 months, commencing 3 March 2009 and expiring 2 November 2010.
  • Additional term of 20 months.
  • Total sentence of 3 years and 4 months imprisonment.
  • Offender eligible for release to parole on 2 November 2010.

Key Takeaways

  • The District Court confirmed that the statutory standard non-parole period of ten years for enhanced indoor cannabis cultivation operates as a significant guidepost even where it does not apply directly, such as when an early guilty plea has been entered.
  • Parity between co-offenders is a weighty sentencing principle: where one co-offender has already been sentenced, the court must ensure the later sentence does not create a justifiable sense of grievance, even if this produces a result more lenient than the sentencing judge would otherwise have imposed.
  • A relatively limited role within a cultivation enterprise, combined with an early guilty plea, can place an offender's conduct significantly below the mid-range of objective gravity for this offence type.
  • Special circumstances justifying a longer additional term (and correspondingly shorter non-parole period relative to the total) can be established where the offender is a first-time prisoner who would benefit from supervised parole, even where language barriers complicate supervision.
  • The court observed, with some candour, that existing judicial practice in sentencing for this offence type may not yet have fully met the legislature's intention as expressed through both the offence creation and the standard non-parole period.

Legislation and Cases Referenced

Legislation
- The offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means (referenced as carrying a standard non-parole period of ten years; the specific Act was not cited by name in the provided text)

Cases
- Lowe (High Court decision on disparity in sentencing as a badge of unfairness, cited without full citation in the judgment)
- Remarks on sentence of Judge Norrish QC (unreported, 24 September 2010, District Court) in the sentencing of co-offender Mr Li