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District Court 26 November 2020

R v Teoh

[2020] NSWDC 745

Drugs
CRIME DRUG OFFENCES CULTIVATE PROHIBITED PLANT KNOWINGLY TAKE PART IN CULTIVATION

Citation: R v Teoh [2020] NSWDC 745
Court: District Court of NSW
Date: 26 November 2020
Judge(s): Buscombe DCJ

Background

The offender, a 23-year-old Malaysian national who had arrived in Australia on a working visa in June 2019, pleaded guilty in the Local Court to knowingly taking part in the cultivation of 106 cannabis sativa plants using enhanced indoor means at South Penrith. The offence occurred between 7 May 2020 and 26 May 2020 and fell within the commercial quantity threshold under the Drug Misuse and Trafficking Act 1985 (NSW), which is triggered at 50 or more plants cultivated by such means.

Police executing a search warrant on the premises found a sophisticated hydroponics setup spanning the entire house, including four modified grow rooms and a bypassed electricity meter. The offender was apprehended attempting to leave via the back door. His vehicle had been observed attending the premises 11 times over the preceding months.

A second offence of using electricity without authority under the Electrical Supply Act 1995 (NSW) was placed on a Form 1 (a mechanism allowing a court to take additional charges into account when sentencing on the primary offence without recording a separate conviction). Buscombe DCJ noted that the Form 1 offence had only a limited impact on the overall sentence.

Legal Issues

  • What was the objective seriousness of the cultivation offence given the number of plants, the sophistication of the setup, and the offender's role?
  • Whether financial gain should be treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • How the principles applicable to young adult offenders affected the weight given to general deterrence versus rehabilitation.
  • What discount applied for an early guilty plea and what weight should be given to remorse, lack of criminal history, and personal circumstances including Covid-19 and isolation from family?
  • Whether special circumstances justified a reduced non-parole period relative to the total term.

Decision

Objective seriousness:
The court placed the offence towards the lower end of the range of objective seriousness, though not at the very bottom (at [17]). The 106 plants more than doubled the commercial quantity minimum of 50 plants and sat roughly halfway between the commercial and large commercial thresholds (at [11]). While the cultivation setup across four rooms showed planning and sophistication, the court found it was not above what is ordinarily seen in such operations (at [12]). The offender's role was confined to watering the plants for one to one and a half hours per day at $500 per week; he was neither the owner nor lessee of the premises and there was no evidence he provided financing (at [10], [14]).

Financial gain as an aggravating factor:
The court declined to treat financial gain as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. Applying the reasoning in Wat v R [2017] NSWCCA 62, Buscombe DCJ held that financial motivation is fairly inherent in the commercial cultivation of prohibited plants and should not be separately aggravated (at [15]).

Young adult offender principles:
The offender was 22 at the time of the offence and 23 at sentencing. Drawing on Bullock v R [2016] NSWCCA 131 and BP v R [2010] NSWCCA 159, the court applied the principle that rehabilitation and treatment should generally receive greater weight than general deterrence, denunciation, and retribution when sentencing young adult offenders (at [18]). The offender's lack of criminal history in Australia, his good character references, his assessed low to medium-low risk of re-offending, and his difficult childhood in Malaysia all supported favourable prospects for rehabilitation (at [19], [34], [37]).

Plea discount, remorse, and personal circumstances:
A 25 percent discount was applied for the utilitarian value of the early guilty plea (at [35]). The court accepted that the plea, combined with the offender's statements to report authors, demonstrated some genuine remorse (at [36]). The court gave weight to the offender's isolation from family overseas and the added anxiety of serving a sentence during the Covid-19 pandemic (at [38]). His financial vulnerability after becoming unemployed due to Covid-19 and his stated naivety about the illegality of his conduct were part of the subjective background, though the court found beyond doubt that he engaged in the offence for financial gain (at [14], [33]).

Special circumstances:
The court made a substantial finding of special circumstances, reducing the non-parole period below the statutory default ratio, primarily because of the offender's young age and his complete lack of family support in Australia during his sentence (at [42]).

Orders Made

  • The offender is convicted of the primary offence of cultivating a commercial quantity of prohibited plants using enhanced indoor means.
  • Sentenced to a total term of 2 years and 1 month imprisonment, with a non-parole period of 1 year.
  • Sentence backdated to commence 26 May 2020.
  • Non-parole period expires 25 May 2021; balance of term expires 25 June 2022.

Key Takeaways

  • Financial gain is not automatically an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 in commercial cannabis cultivation cases: the District Court confirmed, following Wat v R [2017] NSWCCA 62, that financial motivation is inherent in such offending and should not be separately listed as an aggravating feature (at [15]).

  • Where a young adult offender is sentenced for a drug cultivation offence, the sentencing court must give greater weight to rehabilitation and treatment than to general deterrence, denunciation, or retribution, consistent with the principles summarised in Bullock v R [2016] NSWCCA 131 (at [18]).

  • A supporting role in a commercial cultivation operation, such as watering plants in exchange for weekly payment, does not preclude a finding that the offender knowingly took part in the cultivation; the court noted that commercial cannabis cultivation cannot occur without the assistance of workers in such roles (at [16]).

  • Special circumstances justifying a reduced non-parole period can arise from the combination of a young offender's age and a complete absence of family support within Australia during the custodial term (at [42]).

  • An early guilty plea, assessed as carrying genuine remorse, attracted a 25 percent sentencing discount for its utilitarian value, and the court separately considered the additional hardship of serving a sentence during the Covid-19 pandemic as part of the overall sentencing calculus (at [35], [38]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23
- Electrical Supply Act 1995 (NSW), s 64
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 3

Cases
- Wat v R [2017] NSWCCA 62
- Bullock v R [2016] NSWCCA 131
- BP v R [2010] NSWCCA 159