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District Court 29 October 2020

R v Pham

[2020] NSWDC 868

Drugs
CRIME SENTENCE

Citation: R v Pham [2020] NSWDC 868
Court: District Court of New South Wales
Date: 29 October 2020
Judge: Bourke SC DCJ

Background

The offender was found at a Chatswood residential property being used as a sophisticated indoor cannabis cultivation operation. Police had conducted surveillance on three separate occasions in June and July 2019, observing him attend the premises, use a key to enter, and move bins at the property. When police executed a search warrant on 31 July 2019, the offender fled through a rear door, resisted arrest, and was found wearing rubber gloves.

Inside the house, police discovered 436 cannabis plants at various stages of growth across seven rooms, 32.456 kilograms of cannabis leaf, complex hydroponic equipment including 77 lampshades and 23 transformers, and evidence of an illegal electricity bypass. The offender's DNA was found on gloves in multiple rooms, and his personal effects, including his driver's licence and keys to the property, were located in one of the bedrooms. The agreed facts described his role as that of a caretaker who was watering and tending the plants.

The offender pleaded guilty at an early stage to cultivating a large commercial quantity of cannabis, attracting a 25% discount on the sentence that would otherwise have been imposed. A further offence of supplying a commercial quantity of cannabis was taken into account on a Form 1 document (a procedural mechanism allowing a court to consider additional offences when sentencing for the primary offence, without recording a separate conviction).

  • What was the appropriate objective seriousness of the offending, given the offender's role as a caretaker rather than an organiser?
  • What sentence, including head sentence and non-parole period, was proportionate to the primary offence and the Form 1 supply offence?
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence.

Decision

The court assessed the offender's role as significant but limited to that of caretaker. While he was not shown to have been involved in leasing the property or setting up the electrical bypass, the court noted he held a position of considerable trust within the operation, had been present over an extended period of approximately one month, and was entrusted with looking after both the plants and the premises. The court characterised the offending as being of mid-range objective seriousness.

The court acknowledged substantial subjective mitigating factors. These included the offender's early guilty plea, his lack of prior criminal history in Australia, his difficult personal background including past trauma in Vietnam, his expression of remorse, and positive evidence of good character from family members. The offender was assessed as having reasonable prospects of rehabilitation.

The Form 1 supply offence, while not aggravating the primary offence directly, was found to warrant some increase in the sentence, reflecting the need for greater personal deterrence and community retribution. The court emphasised that general deterrence carries significant weight in drug cultivation matters, consistent with longstanding authority from the NSW courts.

Special circumstances were found to exist, justifying a non-parole period shorter than the standard statutory ratio. The court based this on three factors: this being the offender's first period of full-time custody, his English language difficulties making custody harder to bear, and the fact that the sentence was largely being served under COVID-19 pandemic restrictions.

Orders Made

  • Head sentence of 3 years and 10 months imprisonment for cultivating a large commercial quantity of cannabis, with the Form 1 supply offence taken into account.
  • Non-parole period of 2 years.
  • Both periods to date from 31 July 2019.
  • Head sentence to expire 30 May 2023; non-parole period to expire 30 July 2021.

Key Takeaways

  • A caretaker role in a cannabis grow-house operation, though subordinate to organisers, can still represent a position of considerable trust warranting a meaningful custodial sentence.
  • Under the sentencing framework, a Form 1 offence does not aggravate the primary offence but can nonetheless justify some uplift in the sentence to reflect personal deterrence and retributive considerations.
  • Special circumstances permitting a reduced non-parole period ratio were found where the offender faced a first period of custody, had language barriers, and was serving the sentence during COVID-19 restrictions. These factors were treated cumulatively rather than individually.
  • Sentencing statistics and comparable cases are relevant guideposts, but the District Court confirmed that each drug cultivation case turns heavily on its own particular facts.
  • General deterrence carries significant weight in drug cultivation sentencing, consistent with the approach affirmed in cases such as Nguyen v The Queen [2019] NSWCCA 131 and Phan v The Queen [2020] NSWCCA 168.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases
- Le v R [2019] NSWCCA 181
- Nguyen v The Queen [2019] NSWCCA 131
- Phan v The Queen [2020] NSWCCA 168
- R v Zanker [2016] NSWSC 1653