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District Court 12 June 2019

R v Vu

[2019] NSWDC 969

Drugs

Citation: R v Vu [2019] NSWDC 969
Court: District Court of New South Wales
Date: 12 June 2019
Judge: Haesler SC DCJ

Background

In mid-June 2017, police executed a search warrant on a suburban Coniston property and discovered an elaborate hydroponic cannabis operation spanning seven grow rooms and containing close to 200 plants. The set-up was professionally organised, with significant expenditure indicating an expectation of substantial commercial profit. DNA and fingerprint evidence linked the offender to the premises.

The offender, a 32-year-old Vietnamese-born man, was arrested in May 2018 as he was leaving Australia. His phone had been registered to him, and forensic evidence tied him directly to the property. There was no suggestion he was attempting to flee the jurisdiction.

He was charged with knowingly taking part in the cultivation of a commercial quantity of cannabis under s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He entered a guilty plea in the Local Court.

  • What was the appropriate sentence for knowingly taking part in the cultivation of a commercial quantity of cannabis under s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW)?
  • What weight should be given to mitigating factors, including an early guilty plea, the offender's limited role as a "crop sitter," personal circumstances, and prior good character?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody.

Decision

Haesler SC DCJ accepted that the offending was objectively serious. The cultivation was commercially motivated, professionally established, and involved close to 200 plants. The maximum penalty under the Act is 15 years imprisonment, and the court was required to reflect the gravity of that parliamentary signal. The judge also observed that organised crime groups typically insulate themselves from prosecution by employing lower-level workers, who bear the risk and almost inevitably face imprisonment if caught.

Despite the seriousness of the offence, the court accepted that the offender was a crop sitter with limited means and skills. He had been financially distressed following business failure, and associates in the Vietnamese community had exploited that vulnerability. His expected remuneration was $1,000 per week. The court accepted his written apology as heartfelt and treated his personal circumstances, including a university background, English language difficulties, a wife in poor health, and a small business he had established, as genuine mitigating considerations.

A 25% discount was applied to reflect the utilitarian value of the guilty plea. The court also credited the approximately one-and-a-half months spent in pre-sentence custody. Haesler SC DCJ concluded that returning the offender to full-time imprisonment would be counter-productive, noting that his period on remand appeared to have had a genuine deterrent effect. The offender was assessed as falling within the relatively small category of offenders for whom an ICO was appropriate.

Orders Made

  • The offender was convicted of knowingly taking part in the cultivation of a commercial quantity of cannabis.
  • A notional head sentence of 2 years and 6 months was reduced to 1 year and 9 months, taking into account the guilty plea discount and time already served in custody.
  • The sentence of 1 year and 9 months is to be served by way of an Intensive Correction Order (ICO) in the community.
  • Conditions of the ICO include: supervision and guidance by the Probation and Parole Service for as long as deemed necessary; reporting to the Liverpool Community Corrections Office within 7 days; completion of 200 hours of community service; and good behaviour.
  • Breach of the ICO would be dealt with by the State Parole Authority, and a serious breach could result in the offender being returned to prison to serve the balance of the term.

Key Takeaways

  • A conviction for knowing participation in the cultivation of a commercial quantity of cannabis under s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carries a maximum penalty of 15 years imprisonment, and sentencing courts are required to treat that maximum as a significant reference point.
  • The District Court confirmed that a "crop sitter" role, while still constituting serious criminal offending, is a relevant mitigating factor going to the offender's actual culpability within the broader criminal enterprise.
  • Financial desperation does not excuse participation in commercial drug cultivation, but courts may treat genuine vulnerability to exploitation as a mitigating circumstance when determining sentence.
  • An early guilty plea attracted a 25% utilitarian discount, with the court also recognising its practical value in filling evidentiary gaps and demonstrating acceptance of responsibility.
  • An Intensive Correction Order is available for offences of this type, but Haesler SC DCJ identified it as appropriate only for a "relatively small category" of such offenders, where personal circumstances and rehabilitation prospects sufficiently distinguish the case from one warranting full-time custody.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2) (knowingly taking part in cultivation of a commercial quantity of a prohibited plant, with enhanced indoor cultivation deeming provisions)

Cases cited: No cases were cited in the judgment.