Citation: R v Pham [2019] NSWDC 709
Court: District Court of New South Wales
Date: 25 July 2019
Judge(s): Bennett SC DCJ
Background
Police attended a residential property in Condell Park in October 2017 following a complaint about yelling. Inside they found an elaborate cannabis cultivation and drying operation: 137.656 kilograms of cannabis leaf and head across multiple drying racks, false walls, blacked-out windows, an irrigations system, and bypassed electrical infrastructure. The street value was estimated at approximately $1.4 million.
The offender was arrested at the scene, found wearing blue disposable gloves, and declined to be interviewed. He was a Vietnamese national who had come to Australia on a student visa and had no prior criminal history. He told the court he attended the premises only to retrieve a van he had lent to an acquaintance named Hung, and that he had no knowledge of the cannabis operation.
The offender was committed for trial but pleaded guilty upon arraignment in the District Court in May 2019. A co-offender, who bore the same family name but was unrelated, had already been sentenced in March 2019.
Legal Issues
- What sentence was appropriate for supply of a prohibited drug in a large commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985, where the evidence connecting the offender to the enterprise was circumstantial?
- What weight should be given to a late guilty plea entered in circumstances where the defence had a real prospect of acquittal?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- How to achieve appropriate parity with the previously sentenced co-offender, while accounting for differences in culpability.
Decision
Objective seriousness and the offender's role
The court found the premises involved a large and elaborate commercial cannabis operation, with no purpose other than cultivation and supply (at [31]). There were no aggravating factors. The court assessed the offender's role as below that of the co-offender, and at below mid-range overall objective seriousness, synthesising the available facts (at [36]-[37]). Although the court expressed some scepticism about the offender's explanation for his presence, it could not positively find that he was an active participant in the enterprise beyond what his guilty plea admitted (at [37]).
The guilty plea and discount
The late plea attracted a 20% discount, consistent with the approach in Borkowski (2009) NSWCCA 102, which treats the timing of the plea as a primary consideration (at [26]). The plea was recognised as carrying two distinct benefits: it demonstrated contrition and remorse in circumstances where the Crown case was not strong, and it provided practical utility by avoiding a trial that could realistically have ended in acquittal (at [23]-[25]).
Subjective factors
The offender was 32 years old with no criminal history, had engaged positively with educational and chaplaincy programs in custody, and was assessed by a psychologist as experiencing elevated stress and mild anxiety without a diagnosable mental health condition (at [14]-[21]). His separation from his wife and two young children in Vietnam, his lack of English proficiency, and his isolation from family support in Australia were all taken into account (at [38]).
Special circumstances and parity
The court found special circumstances arising from the offender's ethnicity, English not being his first language, and the absence of family support in Australia (at [38]). This justified a shorter custodial component and a correspondingly extended parole period. The court also had regard to the sentence imposed on the co-offender, noting relevant differences in the evidence of their respective involvement (at [27]-[28]).
Orders Made
- Term of imprisonment of 3 years and 3 months.
- Non-parole period of 2 years, commencing 27 October 2017 and expiring 26 October 2019.
- Parole period of 1 year and 3 months, expiring 26 January 2021.
Key Takeaways
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A late guilty plea can still attract a meaningful sentencing discount where it demonstrates genuine contrition and avoids a trial that carried a real prospect of acquittal. The District Court applied a 20% reduction on that dual basis, consistent with Borkowski (at [23]-[26]).
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Where objective facts support an inference of participation in a joint criminal enterprise but direct evidence is lacking, the sentencing court assesses the offender's role by synthesising all available material rather than treating the plea as an admission of a specific level of involvement (at [35]-[37]).
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Special circumstances justifying an adjusted non-parole period ratio can be established by a combination of factors including language barriers, ethnic background, custody conditions, and the complete absence of family support in Australia (at [38]).
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Parity between co-offenders requires identification of relevant similarities and differences in culpability. Here, the absence of admissions and DNA evidence that had been available against the co-offender supported a marginally lower sentence for this offender (at [27]-[28], [36]).
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The court affirmed that cannabis is a dangerous drug warranting serious punishment when supplied in large commercial quantities, noting its links to chronic health risks and potential as a pathway to other substances. The popular perception of cannabis as a minor drug did not diminish the gravity of the offending (at [33]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985
- Crimes (Sentencing Procedure) Act 1999
Cases
- Borkowski (2009) NSWCCA 102