Citation: [2019] NSWDC 398
Court: District Court of New South Wales
Date: 21 June 2019
Judge(s): Buscombe DCJ
Background
Three offenders each pleaded guilty in the Local Court and maintained those pleas before the District Court to a single charge of cultivating not less than a commercial quantity of cannabis sativa by enhanced indoor means at an industrial unit in South Penrith. Police executed a search warrant on 31 July 2018 and found all three men inside the premises wearing gloves. A total of 255 cannabis plants were located across multiple rooms, but the Crown accepted that the offenders were only aware of the 142 plants in one room.
Each offender also had before the court, on a "form 1" (a mechanism allowing additional charges to be taken into account on sentence without a separate conviction), an offence of using electricity without authority connected to the same cultivation. Two of the three offenders, Quan Trung Bui and Minh Nguyen, had a further form 1 matter: a separate commercial-quantity cannabis cultivation offence linked to premises in Kirrawee.
The principal sentencing question was what terms of imprisonment were appropriate, having regard to the offenders' differing criminal histories, immigration status, personal circumstances, and the additional form 1 matters carried by two of them.
Legal Issues
- What was the appropriate assessment of objective seriousness for each offender's role as a crop-sitter in a commercial cannabis cultivation?
- What weight should be given to the form 1 offences, in particular the additional cultivation matter carried by two offenders?
- What subjective factors, including prior criminal history, prospects of rehabilitation, immigration status, and remorse, affected the individual sentences?
- Whether a finding of special circumstances was warranted for any offender, and whether an Intensive Correction Order was appropriate.
- What discount applied for the utilitarian value of early guilty pleas?
Decision
Objective seriousness and the crop-sitter role: The court assessed each offender's offending as falling towards the lower end of the objective seriousness scale (at [13]-[14]). The 142 plants the offenders knew about represented just under three times the minimum commercial quantity but remained well below the large commercial quantity (at [11]). The Crown accepted there was no evidence that any offender was involved in setting up the cultivation, and no forensic evidence linked any of them to it (at [10], [13]). The court characterised each as a "crop-sitter," while noting that crop-sitters are an essential part of this type of cultivation and that financial gain motivated their involvement (at [12], [14]).
Form 1 additional cultivation offence: The presence of the Kirrawee cultivation offence on the form 1 for Quan Trung Bui and Minh Nguyen was a significant distinguishing factor from Tien Duc Bui's position, and the court held it must have a material impact on the sentences imposed on those two offenders (at [3], [15]).
Individual subjective cases: All three offenders received a 25% discount for the utilitarian value of their early guilty pleas (at [17], [20], [22]). Tien Duc Bui, an Australian citizen with no prior criminal record, a supportive spouse, employment history, and a low assessed risk of reoffending, was found to have good prospects of rehabilitation (at [16]-[18]). Quan Trung Bui, who is not an Australian citizen and faces likely deportation, was found to have some remorse and reasonable rehabilitation prospects, though his situation is more limited by his isolation and immigration status (at [19]-[20]). Minh Nguyen, who overstayed a student visa and also faces deportation, gave frank evidence about financial pressures and expressed remorse; his immigration status was noted as affecting deportation prospects but not the setting of his non-parole period (at [21]-[22]).
Special circumstances and sentencing disposition: The court made a finding of special circumstances for Tien Duc Bui, partly because he had nearly served what the court regarded as an appropriate non-parole period by the time of sentencing, and because his first time in custody, clean record, and good rehabilitation prospects would otherwise have made an Intensive Correction Order worth considering had he come before the court earlier (at [24]). An ICO was not pressed for the other two offenders, given the additional form 1 cultivation matter and their immigration status rendering such an order pointless (at [27]). The court emphasised that general deterrence requires significant custodial sentences for this type of prevalent offending, and that the only appropriate sentence is imprisonment (at [26]).
Orders Made
- Tien Duc Bui: Convicted. Sentenced to 18 months' imprisonment comprising a non-parole period of 11 months and a balance of term of 7 months, backdated to 31 July 2018. Sentence expires 30 January 2020; non-parole period expired 30 June 2019.
- Quan Trung Bui: Convicted. Sentenced to 2 years and 6 months' imprisonment comprising a non-parole period of 1 year and 10 months and a balance of term of 8 months, backdated to 31 July 2018. Sentence expires 30 January 2021; non-parole period expires 30 May 2020.
- Minh Nguyen: Convicted. Sentenced to 2 years and 6 months' imprisonment comprising a non-parole period of 1 year and 10 months and a balance of term of 8 months, backdated to 31 July 2018. Sentence expires 30 January 2021; non-parole period expires 30 May 2020.
- Cannabis plants ordered to be destroyed.
Key Takeaways
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The District Court confirmed that a crop-sitter role in a commercial cannabis cultivation attracts an assessment of lower objective seriousness where there is no involvement in setup and no forensic connection to the growing operation, but the court also confirmed that such a role is nonetheless an essential component of these operations and warrants a term of imprisonment (at [12]-[14], [26]).
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Where multiple offenders face sentencing together, the presence or absence of an additional cultivation offence on the form 1 is a significant differentiating factor that must materially affect the sentence imposed (at [3], [15]).
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A finding of special circumstances can be made, and an Intensive Correction Order may be considered, in circumstances where an offender is a first-time prisoner with good rehabilitation prospects, though an ICO becomes impractical where the offender has nearly served the appropriate non-parole period by the date of sentence (at [24]).
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Likely deportation upon release is a relevant circumstance the sentencing court acknowledges, but it does not bear on the length of the non-parole period (at [22], [33], [36]).
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The court noted that it had sentenced six people for similar offences in the same week, treating this prevalence as a factor reinforcing the need for general deterrence and confirming that the only appropriate sentence for commercial cannabis cultivation is imprisonment (at [26]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated