Citation: R v Luu [2019] NSWDC 668
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Abadee DCJ
Background
The offender, a 26-year-old Vietnamese national, pleaded guilty to two offences arising from events on 12 September 2018. The principal offence was knowingly taking part in the cultivation of a large commercial quantity of cannabis (231 plants) by enhanced indoor means, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The related offence was consuming electricity without authority, contrary to s 64(1) of the Electricity Supply Act 1995 (NSW).
Police attended a residential premises and detected the smell of cannabis. The offender, present at the scene, voluntarily handed over the keys to the premises and admitted his role in a recorded interview. His role was that of a "crop-sitter": he attended nightly with a co-offender to water, trim, and maintain the plants and to turn on the lights, receiving approximately $5,000 to $6,000 every six weeks.
The offender had arrived in Australia from Vietnam at age 15 to study. After completing Year 12, his visa expired and he became an unlawful non-citizen, ineligible for social security. He engaged in the offending because he needed money to repay a loan his parents had taken out in Vietnam to fund his education, and they were reportedly being subjected to threats as a result of the debt.
Legal Issues
- What was the appropriate characterisation of the objective seriousness of the offences?
- What weight should be given to the offender's financial hardship and personal circumstances as mitigating factors?
- Whether the offender's past and promised future assistance to police warranted a sentencing discount.
- Whether special circumstances existed justifying a longer-than-usual parole period (that is, a shorter non-parole period relative to the total sentence).
- Whether the circumstances were sufficiently exceptional to depart significantly from general sentencing principles.
Decision
Abadee DCJ assessed the principal offence as falling towards the lower end of the range for objective seriousness. While the operation was sophisticated, involving nine grow rooms and substantial hydroponic equipment, and the plant count significantly exceeded the commercial quantity threshold, the offender's role was limited to daily maintenance. He held no managerial position, exercised no authority, and made no attempt to conceal his involvement. The court acknowledged that hydroponic cultivation attracts particular legislative concern because it causes greater harm to the community than traditional methods.
On subjective circumstances, the court accepted that the offender's motive was financial need rather than greed, given his precarious situation as an unlawful non-citizen with no income, no family support in Australia, and an obligation to assist his indebted parents in Vietnam. The court also noted the offender's early cooperation with police, including handing over keys without any warrant being required, his admissions in the recorded interview, his remorse, and his agreement to give evidence against a co-accused at a forthcoming trial.
The court applied a 25% discount for the guilty plea and an additional discount for the offender's assistance to authorities. Abadee DCJ found that special circumstances existed, warranting an adjustment to the non-parole period, based on the offender's age, his remorse, and his reasonable prospects of rehabilitation. However, the court declined to treat the combination of factors, including the prospect of deportation, the absence of ties to Australia, and asserted family impact, as so exceptional as to substantially displace the ordinary sentencing framework under s 21A of the Crimes (Sentencing Procedure) Act.
Orders Made
- Convicted on both counts.
- Count 1 (cultivation): indicative sentence of 3 years and 7 months imprisonment, with a non-parole period of 2 years and 1 month.
- Section 166 certificate offence (electricity): indicative sentence of 4 months imprisonment.
- Total sentence: 3 years, 9 months, and 18 days, commencing 12 September 2018 and expiring 29 June 2022.
- Non-parole period: 2 years and 1 month, expiring 11 October 2020, with first eligibility for parole on 11 October 2020.
Key Takeaways
- A crop-sitter who performs an integral daily maintenance role in a large commercial cannabis operation occupies the lower end of the spectrum of offending, but the role is not to be understated simply because it lacked managerial authority.
- Under the Drug Misuse and Trafficking Act 1985 (NSW), hydroponic cultivation is recognised as attracting greater community harm than traditional methods, a factor courts have consistently taken into account when assessing objective seriousness.
- Voluntary cooperation with police from the outset, including providing access to premises without a warrant and agreeing to give evidence against co-offenders, can constitute meaningful assistance warranting a sentencing discount alongside the statutory plea discount.
- Financial hardship and family obligations may colour a court's characterisation of an offender's motive, distinguishing need from greed, but those factors do not, individually or in combination, necessarily constitute circumstances so exceptional as to displace the general sentencing framework.
- Special circumstances justifying an extended parole period (achieved by shortening the non-parole period relative to the head sentence) may be established where an offender's youth, remorse, and rehabilitation prospects collectively point to a greater need for structured supervision upon release.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 166
- Electricity Supply Act 1995 (NSW), s 64(1)
Cases
- Le v R [2019] NSWCCA 181
- Ngo v R [2018] NSWCCA 181
- R v DH; R v AH [2014] NSWCCA 326
- R v Nong [2010] NSWDC 227
- R v Sukkar [2006] NSWCCA 92
- Tran v R [2018] NSWCCA 220