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District Court 9 July 2019

R v Cao

[2019] NSWDC 350

Drugs

Citation: R v Cao [2019] NSWDC 350
Court: District Court of New South Wales
Date: 9 July 2019
Judge(s): Bennett SC DCJ

Background

The offender pleaded guilty to two counts of cultivating a prohibited plant by enhanced indoor means, each at not less than the commercial quantity, under the Drug Misuse and Trafficking Act 1985. The first offence involved 231 cannabis plants grown at a Carlingford residential property between June and September 2016. The second involved 82 plants at a separate Carlingford address between June and July 2017.

Both operations were sophisticated hydroponic setups in residential premises. Rooms had been converted with lighting, irrigation, exhaust systems, and bypassed electricity meters. The offender's fingerprints were found extensively throughout the first property, and neighbours observed him attending regularly.

Although 231 plants exceeded the "large commercial quantity" threshold of 200 plants, the Crown conceded it could not prove beyond reasonable doubt that the offender had knowledge of the precise number. He was therefore charged with the lesser offence of cultivating not less than the commercial quantity (50 plants), rather than the large commercial quantity.

  • What aggregate sentence was appropriate across two separate cultivation offences committed at different times?
  • How should the sentences imposed on co-offenders inform the sentence for this offender, and were there material differences in culpability?
  • Was a 25% discount for early guilty pleas entered in the Local Court warranted?
  • Did special circumstances exist justifying an extended parole period relative to the non-parole period?

Decision

The court imposed an aggregate sentence of four years, with a non-parole period of two years and six months, commencing on 24 April 2018. Before aggregation, the indicative sentence for the 231-plant offence was three years and four months, and for the 82-plant offence, two years and three months. Both indicative terms reflected a 25% discount for the early guilty pleas entered in the Local Court.

On co-offender parity, the court considered two previously sentenced co-offenders. Ngo had been sentenced by the same judge and received an indicative term of three years and nine months for the first offence. Critically, Ngo was charged with "being knowingly concerned" in cultivating the large commercial quantity, a charge that traditionally attracts a lesser sentence than direct cultivation. The court noted that courts have generally treated "knowingly concerned" charges less severely than principal cultivation charges. Ho received an indicative term of 12 months at a separate sentencing, with the sentencing judge there expressly finding that Cao and Ngo were more deeply involved than Ho.

The court identified special circumstances justifying a longer parole period than the statutory norm. The offender was 29 years old, had no prior custodial experience, had limited English, and was assessed as low risk for reoffending with some rehabilitative prospects. The court also noted that the second offence was not committed while the offender was on conditional liberty, which was relevant to the overall assessment of character.

General and specific deterrence both played a role in the sentencing exercise, as did denunciation and recognition of the community harm caused by cannabis cultivation. The court rejected the characterisation of cannabis as a "soft drug," observing from lengthy judicial experience that it frequently serves as a gateway to more serious drug misuse and carries mental health risks for susceptible individuals.

Orders Made

  • Conviction recorded on both counts of cultivating a prohibited plant not less than the commercial quantity.
  • Aggregate sentence of four years' imprisonment imposed, commencing 24 April 2018.
  • Non-parole period of two years and six months.
  • Eligible for parole consideration from 23 October 2020.
  • Sentence expires 23 April 2022.
  • Indicative sentence for 231-plant offence: three years and four months (after 25% discount).
  • Indicative sentence for 82-plant offence: two years and three months (after 25% discount).

Key Takeaways

  • The District Court confirmed that a 25% guilty plea discount applies where pleas are entered in the Local Court and confirmed on committal to the District Court, consistent with both common law principles and subsequent legislation.
  • Under the Drug Misuse and Trafficking Act 1985, cannabis plants cultivated by enhanced indoor means reach the commercial quantity at 50 plants and the large commercial quantity at 200 plants; charging decisions at the lower threshold remain available where knowledge of the full quantity cannot be proved to the requisite standard.
  • A significant sentencing distinction exists between offenders charged as principal cultivators and those charged with being "knowingly concerned" in cultivation, with courts traditionally treating the latter more leniently.
  • Special circumstances justifying a longer parole period can be established by a combination of factors including first-time custody, limited English proficiency, low reoffending risk, and genuine rehabilitative prospects.
  • Co-offender parity requires close attention to the precise charges faced by each offender, not merely the subject matter of the offences, since differences in charge formulation can produce materially different sentencing exposures.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), particularly s 23(2)(a) and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Div 1A
- Criminal Procedure Act 1986 (NSW)

Cases:
- Qutami [2001] NSWCCA 353
- R v Ngo (sentenced 28 November 2017, District Court; appeal dismissed by Court of Criminal Appeal 14 December 2018)
- R v Ho (sentenced 4 December 2018, District Court at Penrith, Hanley SC DCJ)