Citation: R v Duong & R v Phan [2016] NSWDC 414
Court: District Court of New South Wales
Date: 16 December 2016
Judge: Berman SC DCJ
Background
Two offenders, described by their counsel as "foot soldiers," appeared for sentencing after pleading guilty at the earliest opportunity to cultivating a large commercial quantity of cannabis by enhanced indoor means. Police had conducted surveillance on premises in Mascot before executing a search warrant, and arrested both men when they returned the following day. A total of 653 cannabis plants were found in a sophisticated three-room hydroponic setup, representing more than three times the statutory large commercial quantity.
Both offenders were born in Vietnam and participated in the operation for financial gain after being recruited through casual social encounters by a man known only as "Cuong." Each initially claimed their involvement was limited to cleaning and lawn maintenance. After the court raised concerns about whether those admissions were sufficient to establish the elements of "knowingly taking part in cultivation," the matter was adjourned for further instructions, and supplementary statements of facts were ultimately tendered in which each offender admitted to watering the plants by operating a pump and checking water pipes.
The two offenders had meaningfully different personal circumstances and criminal histories. One (Duong) had arrived in Australia approximately 12 months prior, had no criminal history, and held stable employment. The other (Phan) had lived in Australia for over a decade, had a prior conviction specifically for cultivating cannabis, and had additional entries on his criminal record.
Legal Issues
- Whether the offenders' initial admissions (limited to cleaning) were sufficient to establish the element of "knowingly taking part in cultivation" under the Drug Misuse and Trafficking Act
- What sentences were appropriate for low-level participants in a large-scale commercial cannabis cultivation operation, taking into account the standard non-parole period and the established sentencing range
- Whether the different criminal histories and personal circumstances of the two offenders warranted different sentences
- Whether special circumstances existed justifying a departure from the standard non-parole period
Decision
On the sufficiency of the initial admissions, the court found that tidying and cleaning did not satisfy the statutory definition of "taking part in cultivation." Under section 6 of the Drug Misuse and Trafficking Act, participation requires taking or causing a step to be taken in the process of cultivation, which in turn requires acts such as sowing, planting, growing, tending, nurturing or harvesting. The admission to watering the plants by operating a pump did meet that threshold, and it was only after supplementary facts were filed that the court was satisfied the guilty pleas were properly entered.
On the appropriate sentence, the court acknowledged that both offenders were low-level participants who played no role in planning the operation. However, their criminality remained significant: the number of plants was more than three times the large commercial quantity, the operation was highly organised, and both men participated knowingly for financial reward. The court noted the maximum penalty of 20 years and a standard non-parole period of 10 years, but sentenced in accordance with the established range from comparable cases, expressly referencing the High Court's observation in Lowe v The Queen that inconsistency in sentencing is a badge of unfairness. The court recorded its personal view, expressed on prior occasions, that the prevailing sentencing range for such offences may not fully reflect the seriousness Parliament intended, but declined to depart from that range on an idiosyncratic basis.
On parity and differentiation, the court accepted that the offenders' different criminal histories justified different sentences. Duong received a lesser sentence reflecting his lack of prior convictions and the prospect that this may be an isolated offence. Phan's prior conviction for the same type of offence and broader criminal history meant he could not claim the same leniency.
On special circumstances, the court found that both offenders' language difficulties would reduce their access to counselling and rehabilitation programs in custody. This justified a longer parole period relative to the non-parole period than would otherwise apply, departing from the standard ratio. An electricity theft offence was also taken into account under a Form 1 (a procedure by which additional charges are placed before the court for consideration in sentencing without separate conviction) in each case.
Orders Made
- Duong: non-parole period of 2 years, head sentence of 4 years; eligible for release to parole on 4 November 2017
- Phan: non-parole period of 2 years and 6 months, head sentence of 5 years; eligible for release to parole on 4 May 2018
- Electricity theft offence taken into account on Form 1 in each case
Key Takeaways
- Under section 6 of the Drug Misuse and Trafficking Act, "taking part in cultivation" requires participation in a step of the cultivation process itself. Admissions limited to general cleaning and tidying are insufficient to establish this element.
- A 25% sentencing discount applied where guilty pleas were entered at the earliest opportunity.
- Sentencing courts must stay within the range established by comparable cases, even where a judge personally considers that range may undervalue the gravity of the offence. The District Court applied Lowe v The Queen broadly, treating consistency as a principle extending beyond parity disputes between co-offenders.
- Different criminal histories among co-offenders charged with the same conduct can justify meaningfully different sentences, particularly where one offender has a prior conviction for the same type of offence.
- Language barriers that limit access to rehabilitation programs in custody may constitute special circumstances warranting a longer parole period relative to the non-parole period.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act (NSW), including s 6 (definition of "taking part in cultivation")
Cases
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 (consistency in sentencing; inconsistency as a badge of unfairness)