Citation: R v Cao [2020] NSWDC 845
Court: District Court of NSW
Date: 21 August 2020
Judge: Buscombe DCJ
Background
The offender, a Vietnamese national in his late twenties who had lived in Australia since 2013, was sentenced after pleading guilty to two offences of knowingly taking part in the cultivation of prohibited plants by enhanced indoor means under the Drug Misuse and Trafficking Act 1985 (NSW). The first offence related to 134 cannabis sativa plants at a South Penrith residential property, constituting a commercial quantity. The second related to 30 cannabis sativa plants at a separate Castle Hill property, grown for a commercial purpose.
Police conducted surveillance of both addresses over several months before arresting the offender in October 2019. DNA found on gloves in the cannabis grow rooms at both premises, and on a cigarette butt, matched the offender's DNA. Two keys found in his vehicle fitted the front doors of both properties.
The agreed facts described the offender's role as that of a "crop sitter": he attended the premises on a limited number of occasions, made the houses appear occupied, and performed basic tasks such as turning on irrigation and placing council bins on the kerbside. A Form 1 offence of dealing in $750 suspected to be proceeds of crime was also taken into account on the first count.
Legal Issues
- What was the appropriate assessment of the objective seriousness of each cultivation offence, having regard to the quantity of plants and the offender's role?
- What weight should be given to the offender's subjective circumstances, including his lack of criminal history, financial motivation, and personal background?
- What aggregate sentence and non-parole period were appropriate, including the appropriate discount for early guilty pleas?
Decision
Objective seriousness: The court assessed the South Penrith offence, involving 134 plants (approximately two and a half times the commercial quantity threshold of 50 plants), as above the low range but below the mid-range of objective seriousness (at [13], [16]). The Castle Hill offence, involving only 30 plants with the offender observed at those premises on just two occasions, was assessed as towards the low end of the range (at [15], [16]). Although the quantities were significant, the court accepted the Crown's concession that the offender should not be treated as a principal behind either cultivation, limiting his culpability to that of a trusted but subordinate crop sitter (at [14]).
Subjective circumstances: The offender had no criminal record in Australia or Vietnam, warranting an extension of leniency (at [17]). A psychological report indicated good insight into his offending, normal mental functioning, and a relatively low risk of reoffending (at [25], [28]). The court accepted that his motivation was financial, likely to assist his family in Vietnam during a period of economic hardship, having been paid $1,500 per fortnight (at [16], [27]). His early guilty pleas, entered in the Local Court, attracted a 25 percent discount for their utilitarian value, and the court was satisfied he was genuinely remorseful with good prospects of rehabilitation (at [29]).
Sentencing approach: The court applied the aggregate sentencing provisions, noting that had it not done so, some limited accumulation of the two sentences would have been appropriate given the two distinct cultivations (at [32]). The court observed that even a subordinate role in commercial cannabis cultivation requires a sentence of full-time custody, as such operations cannot succeed without participants willing to perform supporting functions (at [33]). The starting point for the South Penrith offence before the plea discount was three years, and for the Castle Hill offence was 16 months (at [35]). After applying the 25 percent discount, indicative sentences of two years and three months, and 12 months respectively were recorded (at [37]).
COVID-19 considerations: The court gave limited weight to the heightened anxiety of custody during the COVID-19 pandemic, noting that at the time of sentencing no gaol visits were occurring (at [31]).
Orders Made
- The offender is sentenced to an aggregate term of 2 years and 9 months imprisonment, with an aggregate non-parole period of 1 year and 10 months, commencing 21 October 2019.
- The $750 found in the offender's vehicle is forfeited, in accordance with short minutes of order.
- The matter on the section 166 certificate (the Form 1 offence) is withdrawn and dismissed.
- The cannabis plants are to be destroyed.
Key Takeaways
- A crop sitter role in a commercial cannabis cultivation operation does not attract the same culpability as a principal organiser, but the District Court confirmed that such subordinate involvement still warrants full-time imprisonment, because commercial cultivations cannot operate without people willing to perform supporting functions (at [33]).
- Where the Crown accepts it cannot establish beyond reasonable doubt that an offender was more than a crop sitter, the sentencing court will not treat that person as a principal behind the cultivation, which directly affects the assessment of objective seriousness (at [14]).
- The number of plants involved in a cultivation offence is a relevant sentencing factor but is not determinative; the offender's role, frequency of attendance, and degree of active involvement are also weighed in assessing objective seriousness (at [13]-[16]).
- Financial motivation to assist family overseas is a circumstance capable of explaining recruitment to an offence, but the court in this case treated it as informing the factual background rather than as significant mitigation that reduced the need for a custodial sentence (at [16], [33]).
- An offender's lack of any criminal record, both locally and in their country of origin, remains a factor warranting leniency in sentencing, including in commercial drug offences (at [17]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 23(2)(a)
- Crime Sentenc ing Procedure Act 1999 (NSW), s 3A
Cases
- Not stated