Citation: R v Tran [2020] NSWDC 846
Court: District Court of New South Wales
Date: 26 November 2020
Judge(s): Buscombe DCJ
Background
The offender, a 49-year-old Vietnamese-born man, pleaded guilty to cultivating 100 cannabis sativa plants by enhanced indoor means at a residential property in South Penrith between late February and April 2020. The quantity of plants was not less than the commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). A related Form 1 offence of dishonestly consuming electricity without authority, used to power the hydroponic setup, was also taken into account.
Police from Strike Force Spiral identified the property through surveillance and observed the offender attending the premises on multiple occasions. Upon executing a search warrant on 21 April 2020, police found the offender inside, along with five rooms converted for cannabis cultivation, a hydroponic irrigation system in the bathroom, and an illegal electricity bypass confirmed by Endeavour Energy.
During a recorded police interview conducted with the assistance of a Vietnamese interpreter, the offender admitted he had been attending the premises for approximately three weeks to water the plants and mix chemicals, attending three days per week, and that he was paid $1,000 per week in cash. He denied establishing the hydroponic arrangement.
Legal Issues
- What was the appropriate sentence for commercial quantity cannabis cultivation by enhanced indoor means under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985?
- How should the offender's role as a crop-sitter be characterised for the purpose of assessing objective seriousness?
- What weight should be given to the offender's personal circumstances, criminal history, plea, and prospects of rehabilitation?
- Whether special circumstances existed to justify a longer parole period relative to the non-parole period.
Decision
Objective Seriousness
The court assessed the offence as well below the notional mid-range and towards the lower end of the range, though not at the very bottom (at [22]). The Crown accepted, and the court agreed, that the offender should be characterised as a crop-sitter (at [21]). That said, the court noted the cultivation was well-planned and somewhat sophisticated, involving the conversion of an entire house into a hydroponic facility, and that 100 plants represents half-way between the commercial and large commercial quantities (at [18]-[19]).
Role and Financial Motivation
The offender's admitted role was limited to watering plants, mixing chemicals, and attending the premises three days per week for financial reward of $1,000 per week in cash (at [20]). The court observed that without individuals prepared to play such a role, commercial cannabis production could not occur, treating this as a relevant consideration despite the lower-end characterisation (at [21]).
Personal Circumstances and Plea
The court acknowledged the offender's difficult background, including his childhood during the Vietnam War, time in a Malaysian refugee camp, and migration to Australia (at [27]). His prior drug convictions dated from the 1990s and were more than 20 years old, leading the court to find that his record did not completely disentitle him to leniency (at [25]). A forensic psychologist identified a severe gambling disorder in remission and a low risk of re-offending (at [34], [37]). The offender received a 25% discount for his early guilty plea and the court found some genuine remorse (at [38]-[39]).
Special Circumstances and Parole
The court found special circumstances under the sentencing framework to extend the parole period beyond the standard proportion, citing the offender's need for gambling relapse prevention counselling upon release (at [41]). The sentence was backdated to commence 21 April 2020 to account for pre-sentence custody (at [42]).
Orders Made
- The offender is sentenced to a term of 2 years and 3 months imprisonment.
- Non-parole period of 1 year and 4 months, commencing 21 April 2020 and expiring 20 August 2021.
- Balance of term of 11 months, with the sentence expiring 20 July 2022.
- Special circumstances found, resulting in a longer parole period than would otherwise apply.
Key Takeaways
- A crop-sitter who waters and maintains a commercial cannabis grow operation for weekly cash payment occupies a lower, but not the lowest, level of objective seriousness, particularly where the operation is sophisticated and involves the full conversion of a residential premises (at [21]-[22]).
- The District Court confirmed that the number of plants, while relevant, is not determinative in sentencing for cultivation offences; the offender's role, the degree of planning, and the scale of the operation are all material factors (at [18]-[20]).
- Prior drug convictions more than 20 years old did not operate as a complete bar to leniency, particularly where the intervening record consisted only of traffic offences (at [25]).
- Special circumstances justifying a longer parole period can be established where there is a diagnosed and serious disorder, such as a gambling addiction, that will require structured post-release treatment (at [41]).
- General and specific deterrence carry significant weight in sentencing for commercially motivated cannabis cultivation, with the court observing that full-time imprisonment is the only appropriate disposition for such offending (at [44]-[45]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Electrical Supply Act 1995 (NSW) s 64(1)
- Crime Sentenc ing Procedure Act 1999 (NSW), s 3A
Cases
- Not stated