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District Court 22 September 2020

R v Pham

[2020] NSWDC 623

Drugs

Citation: R v Pham [2020] NSWDC 623
Court: District Court of New South Wales
Date: 22 September 2020
Judge: Bennett SC DCJ

Background

The offender pleaded guilty in the Local Court to one charge under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985: knowingly taking part in the cultivation of a prohibited plant. The conduct took place over approximately ten days in July 2017 at Bardwell Valley, NSW, and involved 290 cannabis plants cultivated by enhanced indoor means.

A large commercial quantity for cannabis plants grown by enhanced indoor means is set at 200 plants under Schedule 1 of the Act. Because the number of plants exceeded that threshold and the enterprise involved enhanced indoor cultivation, the offender attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years, even though he was not charged under the specific enhanced indoor cultivation provision.

The offender was not arrested until August 2019, approximately two years after the Court Attendance Notice was issued. He had been in custody from 18 August 2019 and was unrepresented in English, without immediate family in Australia, and facing deportation to Vietnam upon release.

  • Where on the range of objective seriousness did this offence fall, and what weight should be given to the standard non-parole period of 10 years?
  • What discount applied to the sentence by reason of the early guilty plea?
  • What mitigating factors were established by the offender's personal circumstances, and what effect did they have on the sentence?
  • Were there special circumstances justifying a reduction in the non-parole period relative to the total sentence?

Decision

Objective seriousness and the standard non-parole period. The court assessed the offence as falling toward the lower end of the range of objective gravity, taking into account the number of plants and the evident sophistication of the enterprise. Bennett SC DCJ emphasised that the sentencing process was intuitive rather than arithmetic, guided by the maximum penalty and the standard non-parole period as reference points alongside all other relevant factors. The court noted that even if the offence had fallen in the middle range of objective seriousness, it would not automatically follow that the standard non-parole period of 10 years would apply; the ultimate outcome depends on a synthesis of all relevant considerations.

Guilty plea discount. Because the Court Attendance Notice was issued in 2017 and the prosecution therefore pre-dated the recently enacted statutory provisions on guilty plea discounts, the 25% discount was applied under common law principles, consistent with R v Borkowski [2009] NSWCCA 102. The court applied that discount to arrive at a sentence expressed in whole years and months.

Personal mitigation. The offender had no prior criminal history and provided an uncontested affidavit demonstrating contrition and remorse. The court accepted that he was a person of good character and that his prospects of rehabilitation were good. Specific deterrence was given limited weight given the near-certainty of deportation. General deterrence, denunciation, and recognition of harm remained significant sentencing considerations.

Special circumstances. The court found special circumstances justifying a longer additional term relative to the non-parole period. The offender spoke no English, was isolated from his family in Vietnam, and his custodial experience was more burdensome than it might otherwise have been. Those factors warranted a meaningful reduction in the custodial component.

Orders Made

  • The offender was convicted of the offence to which he pleaded guilty.
  • A non-parole period of 1 year and 9 months was imposed, commencing 18 August 2019 and expiring 17 May 2021.
  • An additional term of 1 year and 6 months was imposed, expiring 17 November 2022.
  • Total sentence: 3 years and 3 months.
  • The offender was noted to be eligible for parole at the expiration of the non-parole period.

Key Takeaways

  • The District Court confirmed that where the number of plants and the nature of an enhanced indoor cultivation enterprise trigger the large commercial quantity threshold, the 20-year maximum and 10-year standard non-parole period apply even if the offender is not charged under the specific enhanced indoor provision of the Drug Misuse and Trafficking Act 1985.
  • A sentencing court is not required to apply the standard non-parole period mechanically; it functions as a guidepost, and the ultimate sentence emerges from an intuitive synthesis of all relevant objective and subjective factors, consistent with Muldrock v R [2011] HCA 39 and Markarian v R [2005] HCA 25.
  • Where a prosecution pre-dates the statutory guilty plea provisions, the common law 25% discount for utilitarian value remains available, as confirmed in R v Borkowski [2009] NSWCCA 102.
  • Deportation upon release is a relevant factor reducing the weight attributed to specific deterrence, but does not displace the significance of general deterrence and denunciation in serious drug offences.
  • Linguistic isolation and the absence of any support network in custody can constitute special circumstances warranting a proportionally longer additional term beyond the non-parole period.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a), Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22, 54A, 54B; Pt 4 Div 1A

Cases
- Muldrock v R [2011] HCA 39
- Markarian v R [2005] HCA 25
- R v Borkowski [2009] NSWCCA 102
- Tepania v R [2018] NSWCCA 247
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353
- R v Godden [2005] NSWCCA 160