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District Court 26 November 2018

R v Said

[2018] NSWDC 430

Drugs
SENTENCING CULTIVATE PROHIBITED PLANT DRUG MISUSE AND TRAFFICKING ACT SPECIAL CIRCUMSTANCES TERM OF IMPRISONMENT

Citation: R v Said [2018] NSWDC 430
Court: District Court of New South Wales
Date: 26 November 2018
Judge: M L Williams SC DCJ

Background

The offender, a young Malaysian man born in March 1997, arrived in Australia on a tourist visa in 2015. He was arrested on 11 April 2018 following a police search of a residential property in Lidcombe, where he was found inside a sophisticated hydroponic cannabis growing operation. He had been living on the premises, working as a resident caretaker of the plants for approximately three weeks.

The operation involved 100 cannabis plants across five purpose-built enclosed rooms, with an estimated street value of $491,000. The quantity exceeded double the commercial threshold under the Drug Misuse and Trafficking Act 1985. The offender had been promised $30,000 for his involvement, though there was no evidence he had received any payment.

The offender pleaded guilty at an early stage and had remained in custody since arrest. He had no prior criminal history in Australia, limited English, and no family support in this country. He faced inevitable deportation upon release.

  • What sentence of imprisonment was appropriate for cultivating a commercial quantity of cannabis by enhanced indoor means under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985?
  • What discount should apply for an early guilty plea?
  • Whether special circumstances existed to justify a non-parole period departing from the standard ratio (that is, a shorter non-parole period relative to the total sentence, allowing for a longer period on parole supervision).

Decision

The court accepted that full-time custody was required and that alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999 did not need to be considered. A 25% discount was applied to reflect the utilitarian value of the early guilty plea, and the sentence commenced from the date of arrest.

The court assessed the offence as falling towards the mid-range of objective seriousness, taking into account the number and maturity of plants, the street value, the sophistication of the operation, the duration of the offender's involvement, and his role. His role was that of a paid labourer rather than a principal organiser, which affected his moral culpability. The court noted that committing the offence for financial gain, while present, was not a particularly aggravating factor given how common that motivation is in this type of offending.

Several mitigating factors reduced the sentence. The offender was young, had no criminal record in Australia, expressed genuine remorse, and had reasonable prospects of rehabilitation. The court found that his vulnerability, poor insight, and subordinate role diminished his moral culpability, consistent with the approach taken in R v Shi. Consistent with R v Huang and R v Nguyen, the difficulty of serving a custodial sentence in a foreign country without family support was also taken into account.

Special circumstances were found, justifying a non-parole period shorter than the standard proportion of the total sentence. The court pointed to the offender's first custodial sentence, the additional hardship arising from his isolation and lack of family, limited evidence of mental illness, and the view that rehabilitation would be better supported through supervision on parole.

Orders Made

  • Conviction entered for cultivating a prohibited plant (cannabis) by enhanced indoor means, quantity not less than the commercial quantity, under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985.
  • Sentence of imprisonment of 2 years and 3 months, commencing 11 April 2018 and expiring 10 July 2020.
  • Non-parole period of 14 months, expiring 10 June 2019, with eligibility for release to parole on that date.
  • Special circumstances found.
  • Back-up charges on the s 166 certificate withdrawn.

Key Takeaways

  • A resident caretaker with a subordinate role in a large-scale cannabis operation is not necessarily treated as a principal, and the court will calibrate moral culpability accordingly.
  • Under the reasoning in R v Shi, vulnerability and limited insight into offending can diminish moral culpability even where the offending is objectively serious.
  • The District Court confirmed that the hardship of imprisonment in a foreign country without family support is a recognised mitigating factor, consistent with R v Huang and R v Nguyen.
  • Special circumstances justifying an extended parole period can arise from a combination of factors: a first custodial sentence, social isolation, some mental health concerns, and the need for structured post-release support.
  • Imminent deportation on release is not a factor to be taken into account at sentencing, as established by applicable authority.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- R v Huang [2000] NSWCCA 238
- R v Nguyen [2009] NSWCCA 181
- R v Shi [2004] NSWCCA 134