Citation: R v TRAN, Tony [2017] NSWDC 397
Court: District Court of New South Wales
Date: 19 May 2017
Judge(s): King SC DCJ
Background
The offender, a man born in 1979, came before the District Court for sentencing on six drug cultivation offences under the Drug Misuse and Trafficking Act 1985. Strike Force Grassy, a Redfern Region Enforcement Squad operation, had investigated a series of sophisticated hydroponic cannabis growing operations conducted in commercial premises across the central metropolitan region of Sydney, including at Greenacre, Punchbowl, Croydon, Lakemba, Kingsford, and one further location.
The offender's role centred on securing leases for commercial premises to be used as cannabis growing facilities. He used fraudulent identification documents and his own real estate industry connections, including business cards from real estate agencies where he had worked, to negotiate tenancy agreements. The premises were then fitted out with complex hydroponic systems including sophisticated lighting, air filtration, extraction, and automated watering equipment.
Five of the six principal offences involved large commercial quantities of cannabis plants (the threshold being 200 plants), with individual seizures ranging from 281 to 418 plants. The sixth offence involved a commercial quantity of 177 plants. The offender also asked the court to take into account two additional matters on a Form 1: a charge of cultivating by enhanced indoor means while exposing a child in the process, and a charge of using electricity without authority.
Legal Issues
- What sentence was appropriate across six cultivation offences, given the offender's role in facilitating the operations and the quantity of cannabis involved?
- How should the Form 1 offences, including the child-exposure aggravating matter, be incorporated into the sentencing exercise?
- What discount applied for the utility of the guilty plea, and from what date did the non-parole period commence?
- Whether special circumstances existed to justify a variation in the statutory ratio between the non-parole period and the balance of term.
Decision
King SC DCJ sentenced the offender on all six offences as an aggregate, imposing a total term of 13 years and 4 months imprisonment with a non-parole period of 10 years. The sentence commenced on 21 August 2015, the date the offender first entered custody, making him first eligible for parole on 20 August 2025, with the total sentence expiring on 20 December 2028.
The offender received a 25 per cent discount on each offence for the utilitarian value of his guilty plea, consistent with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The agreed facts were arranged chronologically by the court to reflect the sequence of premises rented, with the exception of the Glen Alpine premises where no rental date was provided.
General deterrence was identified as an extremely important factor. The court noted that cannabis cultivation operations of this kind are sophisticated, difficult to detect, and typically structured so that individuals who are arrested do not implicate others. The Form 1 offences, including the exposure of a child during cultivation at the Glen Alpine premises, were taken into account in sentencing for Sequence 8 (the Greenacre premises involving 418 plants).
The court found no special circumstances warranting a departure from the standard non-parole period ratio. The offender's status as a first-time prisoner was held not to constitute special circumstances on its own, particularly given that the balance of term of three years and four months already exceeded by four months the maximum three-year supervision period ordinarily available on parole.
Orders Made
- The offender was convicted on all six offences.
- A total sentence of 13 years and 4 months imprisonment was imposed.
- Non-parole period of 10 years commencing 21 August 2015; first eligible for parole on 20 August 2025.
- Balance of term of 3 years and 4 months; total sentence expiring 20 December 2028.
- No special circumstances found; standard non-parole period ratio applied.
Key Takeaways
- The District Court treated the offender's facilitation of lease arrangements using fraudulent documents, combined with his real estate industry knowledge, as central to the objective seriousness of the offending across multiple premises.
- A 25 per cent discount for the utilitarian value of a guilty plea was applied consistently across all six offences, in accordance with Thomson & Houlton.
- Where cannabis cultivation offences involve multiple premises, sophisticated equipment, and large commercial quantities significantly exceeding statutory thresholds, the sentencing court may treat general deterrence as a particularly weighty factor.
- Form 1 offences, including the aggravated cultivation charge involving exposure of a child, are taken into account in the sentencing exercise for a nominated principal offence rather than sentenced separately, with those matters increasing the appropriate sentence for that offence.
- No special circumstances were established merely because the offender was serving his first custodial sentence, particularly where the balance of term already provided a meaningful period for supervised reintegration.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 23A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 32, 37
- Electricity Supply Act 1995 (NSW), s 64(1)
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Bui [2008] NSWCCA 314
- Cherdchoochatri [2013] NSWCCA 118
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Hanh Thi Nguyen [2011] NSWCCA 92
- King v R [2010] NSWCCA 202
- Nguyen [2009] NSWCCA 283
- O'Neill-Shore v The Queen [2010] NSWCCA 42
- Phan [2010] NSWCCA 8
- Tran [2010] NSWCCA 72
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518