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District Court 31 May 2019

R v Pham

[2019] NSWDC 286

Drugs
CRIME SENTENCE CULTIVATION INTENSIVE CORRECTIONS ORDER

Citation: R v Pham [2019] NSWDC 286
Court: District Court of New South Wales
Date: 31 May 2019
Judge(s): Bourke SC DCJ

Background

Police executed a search warrant at a Fairfield house in May 2018 and found an indoor hydroponic cannabis operation. The offender was the sole occupant and cooperated with police, providing the key to locked rooms. Officers discovered 344 growing cannabis plants and 1.39 kilograms of harvested cannabis head and leaf in the garage.

The offender, a 22-year-old Vietnamese-born woman, admitted she had been staying at the premises for a few months and was paid $2,000 per week to water and harvest the plants. She told police she could not identify the owner of the premises or the person who paid her.

She was charged with knowingly taking part in the cultivation of a prohibited plant in a large commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985. A supply cannabis leaf offence was placed on a Form 1 (a mechanism under which a separate offence is taken into account at sentencing without recording a further conviction). She pleaded guilty in the Local Court.

  • What was the objective seriousness of the cultivation offence, given the scale of the operation and the offender's limited role as a "crop-sitter"?
  • What weight should be given to the offender's subjective circumstances, including her financial vulnerability, naivety, young age, and the psychological evidence?
  • What was the impact on community safety and the offender's child, and did those matters justify departure from a full-time custodial sentence?
  • Whether the sentence of imprisonment should be served by way of an Intensive Corrections Order (ICO) under the Crimes (Sentencing Procedure) Act 1999.

Decision

His Honour assessed the objective seriousness of the cultivation offence as just below the midrange. While the operation was fairly significant in size and reasonably sophisticated, the offender's role was limited to that of a paid employee performing crop-sitting duties. She was not involved in setting up or financing the operation and did not stand to profit beyond her weekly wage.

The court gave substantial weight to the offender's subjective circumstances. Psychological evidence from Dr Chris Lennings described the offender as naïve, introverted, and unfamiliar with Australian systems of support, and characterised her involvement as the product of desperate financial and parenting pressures rather than criminal disposition. His Honour largely accepted this characterisation, noting it was consistent with his own observation of the offender during the hearing. The court accepted her expressions of remorse as genuine and noted she had cooperated with police, entered an early guilty plea attracting a 25% discount, and had no prior criminal history.

A significant feature of the sentencing was the impact that full-time imprisonment would have on the offender's young child. The offender was the child's sole carer, the father was largely absent, and no adequate alternative care arrangements existed. His Honour found there was a real and substantial risk the child would enter State care if the offender were imprisoned. The court characterised this as an exceptional case where the impact on a family member went beyond the ordinary hardship that imprisonment typically causes.

Taking all of these factors into account, his Honour imposed a two-year sentence of imprisonment but ordered that it be served by way of an Intensive Corrections Order. The court was satisfied this was consistent with the requirement under s 66 of the Crimes (Sentencing Procedure) Act 1999 that community safety be the paramount consideration in such decisions.

Orders Made

  • The offender was convicted of knowingly taking part in the cultivation of a prohibited plant (large commercial quantity).
  • A sentence of two years imprisonment was imposed, to be served by way of an Intensive Corrections Order under s 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions applied: the offender must not commit any offence and must submit to supervision by a Community Corrections officer if required.
  • The offender was ordered to perform 500 hours of community service.
  • The offender was directed to report to the Fairfield Community Corrections office within seven days.
  • In relation to two further offences (unlawful use of electricity and dealing with proceeds of crime) recorded on a s 166 certificate, the offender was convicted but no further penalty was imposed.
  • A consent order was made for forfeiture of $480 in cash as proceeds of crime.

Key Takeaways

  • The District Court confirmed that a crop-sitter's limited role within a cannabis cultivation operation is a relevant mitigating factor going to objective seriousness, though it does not eliminate culpability given the importance of such roles to the operation of drug enterprises.
  • A guilty plea entered at the earliest opportunity attracted the full 25% sentencing discount.
  • Where credible psychological evidence establishes that an offender is unusually vulnerable and that imprisonment would be experienced as significantly more burdensome than for the ordinary person, this is a relevant subjective consideration at sentencing.
  • Under the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court assesses whether to order that a sentence be served by way of an Intensive Corrections Order rather than full-time custody.
  • The potential assumption of a child into State care, where the offender is the sole carer and no adequate alternative arrangements exist, can constitute an exceptional circumstance justifying a substantial reduction in the sentence that would otherwise be imposed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), including s 25 (supply of cannabis leaf)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 7(1) (Intensive Corrections Order), s 66 (community safety as paramount consideration for ICO), s 10A (conviction without further penalty), and s 166 (certificate of other offences taken into account)

Cases cited: No cases were cited in the judgment.