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District Court 16 December 2020

R v Ma; R v Zheng

[2020] NSWDC 862

Drugs

Citation: R v Ma; R v Zheng [2020] NSWDC 862
Court: District Court of New South Wales
Date: 16 December 2020
Judge(s): M L Williams SC DCJ

Background

In December 2019, Northern Beaches police established a strike force to investigate cannabis cultivation at three linked industrial premises in Artarmon. Following thermal reconnaissance and the execution of search warrants, police uncovered sophisticated hydroponic cannabis operations involving multiple tents, UV lighting, irrigation systems, and extraction fans. A total of 733 cannabis plants were located across two of the three premises, along with significant sums of cash and approximately 20 kilograms of harvested cannabis leaf.

Two men came before the court for sentence on 16 December 2020. The first, aged 61, had leased one of the premises under his name and was present when police executed a warrant at another. He co-operated with a video walk-through at the time of arrest and described his role as that of a labourer, cleaning and removing leaves from the plants. The second offender, aged 26, was also involved in the same operation.

Both men pleaded guilty to knowingly taking part in cultivating a prohibited plant in excess of a large commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. Counsel for both offenders conceded that a full-time custodial sentence was required.

  • What was the appropriate assessment of objective seriousness for each offender's role in a large-scale, sophisticated cannabis cultivation operation?
  • What weight should be given to each offender's subjective circumstances, including age, health, gambling addiction, remorse, and rehabilitation prospects?
  • Whether parity principles required that both offenders receive the same sentence, given the Crown's and defence counsel's agreement that their moral culpability was broadly equivalent.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence.
  • What discount applied for each offender's plea of guilty?

Decision

The court assessed the objective seriousness of the offending at approximately halfway between the low and mid-range. Relevant factors included the number of plants (733, compared to the large commercial quantity threshold of 200), the sophistication of the hydroponic setup, the scale of the indoor cultivation, and the fact that the operation was plainly part of planned or organised criminal activity. The Crown did not attribute responsibility for the cannabis leaf find to either offender for the purpose of assessing their individual culpability.

On the subjective case for the older offender, the court accepted that his involvement was confined to the period from 1 November 2019 (when he became the lessee of one premises) to his arrest on 17 December 2019. He suffered from serious alcohol-related cirrhosis of the liver and required daily medication. The court accepted his account that he became involved out of financial desperation following the collapse of his businesses due to gambling and alcohol. He had taken steps to address both problems, expressed genuine remorse, and was assessed at medium to low risk of reoffending. Justice Health documentation confirmed the difficulties he experienced obtaining medical care in custody, though the court was not persuaded this precluded an adequate level of care during imprisonment.

The court rejected the submission that the period already served in custody (approximately one year) should approach or equate to the non-parole period. That proposition was characterised as overly optimistic given the court's assessment of objective seriousness, the maximum penalty, the standard non-parole period, and the range of sentences drawn from 120 comparable cases spanning approximately 12 years. Both counsel and the Crown agreed there was no relevant distinction between the two offenders' positions, and the court concurred. A 25% discount was applied to both sentences for their guilty pleas.

Special circumstances were found in respect of both offenders, justifying a non-parole period shorter than the statutory default ratio (which would ordinarily require the non-parole period to be at least three-quarters of the head sentence). This resulted in a non-parole period of 18 months on a 3-year head sentence for each man.

Orders Made

In the matter of Zheng:
- Convicted of the offence
- Sentenced to 3 years imprisonment, commencing 17 December 2019 (25% plea discount applied)
- Non-parole period of 18 months, expiring 16 June 2021
- Special circumstances found
- Back-up offence withdrawn

In the matter of Ma:
- Convicted of the offence
- Sentenced to 3 years imprisonment, commencing 13 October 2020 (25% plea discount applied)
- Non-parole period of 18 months, expiring 12 April 2022
- Special circumstances found
- Back-up offence withdrawn
- Medical documentation requested to follow the warrant

Key Takeaways

  • The District Court placed objective seriousness at around the midpoint between the low and mid-range, even where the quantity substantially exceeded the large commercial quantity threshold, where the offender's personal role was that of a labourer rather than an organiser.
  • Parity principles operated to produce identical sentences where both the Crown and defence accepted that the moral culpability of two co-offenders was broadly equivalent, notwithstanding differences in age and personal circumstances.
  • Sentencing statistics drawn from 120 comparable cases over 12 years were treated as a significant reference point, informing the court's rejection of a submission that approximately one year already served should approximate the non-parole period.
  • Special circumstances were found in both matters, producing a non-parole period of 18 months on a 3-year head sentence, reflecting the court's view that a longer period on parole supervision was warranted given each offender's individual circumstances.
  • Under the Drug Misuse and Trafficking Act 1985, the maximum penalty and standard non-parole period for cultivating a prohibited plant in excess of a large commercial quantity are described by the court as important guideposts, not mere formalities, in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Nguyen v R [2019] NSWCCA
- R v Mangano [2006] NSWCCA 35
- R v Skorin [2005] NSWCCA 276
- R v Smith [2016] NSWCCA 75
- Why v R [2017] NSWCCA 101