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District Court 6 April 2020

R v Nguyen; R v Nguyen

[2020] NSWDC 811

Drugs
CRIME SENTENCE EQUAL CULPABILITY NO PRIOR CRIMINAL CONVICTIONS MINOR BUT IMPORTANT ROLES PRIOR GOOD CHARACTER

Citation: R v Nguyen; R v Nguyen [2020] NSWDC 811
Court: District Court of New South Wales
Date: 6 April 2020
Judge: Norrish QC DCJ

Background

Two men (referred to in the judgment as Thang and Dang) were arrested at a residential property in Beverly Hills on 20 May 2019. Police discovered a sophisticated indoor cannabis cultivation operation spread across five rooms, containing 191 plants at various stages of growth along with extensive equipment including 150 electrical transformers, lighting, fans, fertiliser, and boarded-up windows.

Both men pleaded guilty to knowingly taking part in the cultivation of a commercial quantity of prohibited plants under the Drug Misuse and Trafficking Act 1985. The charge carries a maximum penalty of 15 years imprisonment and no standard non-parole period. Both had no prior criminal convictions at the time of the offending.

The agreed facts described their roles as acting as security guards while maintaining and cleaning the property. In sentencing terms, the court characterised each man as a "crop-sitter." There was no evidence that either had leased the premises, financed the operation, or possessed any technical cultivation expertise.

  • What was the appropriate sentence for two offenders of equal but low culpability in a large commercial cannabis cultivation operation?
  • How should general deterrence be balanced against individual mitigating factors, including prior good character, guilty pleas, remorse, and rehabilitation prospects?
  • What weight should be given to the financial reward element of the offending under the Crimes (Sentencing Procedure) Act 1999?
  • What role, if any, should the COVID-19 pandemic play in the sentencing exercise?

Decision

The court found both offenders equally culpable, but at a low level relative to the overall operation. They were to be sentenced as "servants" of an organised criminal enterprise, not as organisers, financiers, or principals. The court accepted that the operation was a substantial commercial one (the threshold for a large commercial quantity under the Act is 200 plants, just nine above what was found), but that the available evidence confined each offender's role to crop-sitting on an indeterminate number of days.

On aggravating factors, the court identified the principal aggravating feature as the connection to organised criminal activity under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. However, the financial reward element was not treated as an aggravating factor under that provision, as there was no evidence the men expected a share of profits. Their remuneration appeared to be wage-like, consistent with casual labour, and was considered under section 21A(1) instead.

General deterrence remained a relevant consideration despite the offenders' low culpability. The court noted that operations of this kind cannot function without people recruited to perform maintenance and security roles, and that offenders with these two men's backgrounds are commonly targeted for such recruitment.

On COVID-19, the court acknowledged the additional stress the pandemic was causing for those in custody and referred to the Victorian Court of Appeal's observations in Brown v The Queen [2020] VSCA 60. However, the pandemic did not materially affect the sentencing outcome in either case on the particular facts.

Orders Made

Thang Van Nguyen (orders made 2 April 2020):
- Convicted
- Non-parole period of 10 months and 16 days, commencing 20 May 2019 and expiring 4 April 2020
- Balance of sentence of 10 months and 14 days, expiring 18 February 2021

Dang Tung Nguyen:
- Released on the date of sentence (6 April 2020) or at the latest the following day
- Subject to a Community Release Order (including the six-month order arising from the separate affray offence)

Note: The full terms of Dang's sentencing orders were not reproduced in the portion of the judgment provided.

Key Takeaways

  • The District Court confirmed that crop-sitters in commercial cannabis operations, while occupying a minor role, still perform an important function that supports organised criminal enterprises, and general deterrence therefore remains a relevant sentencing consideration even for low-level participants.
  • A connection to organised criminal activity constitutes the principal aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, even where the offenders themselves are not members of the criminal network.
  • Financial reward does not automatically constitute an aggravating factor under section 21A(2) where there is no evidence the offender expected a share of profits; wage-like remuneration is better assessed under section 21A(1).
  • Where the prosecution cannot establish beyond reasonable doubt the precise duration of an offender's involvement at premises, the court is confined to sentencing on the basis of what can be proven, which in this case was a single confirmed day of presence.
  • The court acknowledged the emerging relevance of COVID-19 as a sentencing consideration for prisoners, referencing Brown v The Queen [2020] VSCA 60, but emphasised that its weight depends on the particular facts of each case and it was not a significant factor here.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(1), 21A(2)

Cases:
- Brown v The Queen [2020] VSCA 60
- DPP v De La Rosa [2010] NSWCCA 194