Citation: R v Phan [2019] NSWDC 601
Court: District Court of New South Wales
Date: 2 October 2019
Judge: Bennett SC DCJ
Background
The offender pleaded guilty in the Local Court to two charges of knowingly taking part in the cultivation of cannabis plants by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. He was committed to the District Court for sentencing. Both operations involved quantities well above the relevant statutory thresholds.
The first charge related to 165 cannabis plants cultivated at Carlingford between August and December 2017. The commercial quantity for cannabis cultivated by enhanced indoor means is 50 plants, meaning this operation involved more than three times that threshold. The second charge related to 288 cannabis plants at Parramatta between October and December 2017. The large commercial quantity for this category is 200 plants, placing this operation 88 plants above that level.
A Form 1 offence was also taken into account on sentencing for the more serious charge. The offender had no prior criminal record, was Vietnamese-born with English as a second language, and did not participate in a police interview or give evidence at the sentencing hearing.
Legal Issues
- Where on the scale of objective seriousness did each offence fall, having regard to the standard non-parole period of 10 years applicable to the large commercial quantity charge?
- What weight should be given to the guilty plea, and whether the strength of the Crown case affected the discount available?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio?
- How to structure an appropriate aggregate sentence across the two charges.
Decision
Objective seriousness: The Court assessed the large commercial quantity charge as falling below the midrange of objective seriousness, placing it somewhere between the midpoint and halfway towards the low end of that limited range. The offender's role in the enterprise was a relevant factor in this assessment. The first charge (commercial quantity) was assessed at approximately the same point on the scale. Although the enterprises were motivated by financial gain, the Court treated that as part of the factual matrix rather than a standalone aggravating factor, noting that financial reward is integral to this type of offending.
The standard non-parole period: The Court applied the post-Muldrock framework, treating the standard non-parole period of 10 years as a legislative guidepost rather than a starting point. Consistent with the analysis in Tepania v The Queen, the Court assessed objective gravity by reference to objective factors, while acknowledging that certain personal factors, including a suggestion of possible duress, could bear on moral culpability. The Court did not accept that any duress was established as a significant mitigating feature.
Guilty plea and other subjective matters: The Court allowed a 25 per cent discount for the guilty plea on both charges, accepting that it demonstrated contrition and remorse. The Court declined to attribute additional weight on the basis that the Crown case might not have succeeded, finding instead that conviction was effectively inevitable on the available evidence. The offender's lack of prior record and otherwise good character were noted in mitigation.
Special circumstances: The Court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, resulting in a non-parole period shorter than the standard one-third ratio. The Court pointed to the offender's first period of incarceration, his Vietnamese background, English being his second language, and his relative social isolation in Australia apart from his partner.
Orders Made
- The offender was convicted of both charges.
- An aggregate sentence of 5 years and 6 months imprisonment was imposed.
- Non-parole period of 3 years and 6 months, commencing 14 September 2018, expiring 13 March 2022.
- Overall sentence expiring 13 March 2024.
- Indicative sentence for the commercial quantity charge: 2 years and 3 months.
- Indicative sentence for the large commercial quantity charge (including the Form 1 offence): 4 years and 6 months, with a non-parole period of 2 years and 6 months.
- Sequence 2 withdrawn.
Key Takeaways
- The District Court confirmed that financial gain is integral to large-scale cannabis cultivation and does not automatically operate as a separate aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, though it remains part of the factual matrix informing sentence.
- Under the post-Muldrock framework, the standard non-parole period operates as a legislative guidepost, not a starting point. A court must assess objective gravity by reference to objective factors and record reasons when departing from the standard non-parole period.
- Where a guilty plea discount is sought, the strength of the Crown case is not a basis for reducing the weight given to that plea. The Court here refused to treat the inevitability of conviction as a reason to limit the 25 per cent discount.
- Special circumstances may be found where an offender is serving their first custodial sentence, has language difficulties, and is socially isolated, supporting a non-parole period below the standard statutory ratio.
- Sentencing for multiple offences requires an intuitive synthesis rather than an arithmetical or staged approach, as affirmed by reference to Markarian v R, with the aggregate sentence reflecting the totality of the offending.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 33, Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, Part 4 Division 1A
- Crimes Act 1900 (NSW)
Cases:
- Muldrock v The Queen [2011] HCA 39
- Tepania v The Queen [2018] NSWCCA 247
- Markarian v R [2005] HCA 25
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Qutami [2001] NSWCCA 353