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District Court 29 October 2020

R v Vu

[2020] NSWDC 955

Drugs
CRIME SENTENCE CULPABILITY OF OFFENDER UNIQUE SUBJECTIVE FACTORS.

Citation: R v Vu [2020] NSWDC 955
Court: District Court of New South Wales
Date: 29 October 2020
Judge: Neilson DCJ

Background

The offender, a 27-year-old Vietnamese national, pleaded guilty to taking part in the cultivation of 98 cannabis plants (not less than the commercial quantity) at a residential property in Eastwood on 11 February 2020. Police had conducted covert surveillance of the property for several months before executing a search warrant, during which they found the offender inside wearing gardening gloves.

The offender had responded to an online advertisement for cleaning work, posted on a website directed at Vietnamese students. He told a psychologist that he realised upon arrival that cannabis was being grown at the property, but continued attending because of significant financial pressure, having no other employment and needing to support his family while his wife studied and worked.

CCTV footage captured the offender attending the property on 12 occasions over a six-week period. His activities included watering plants, removing rubbish bins, and carrying boxes of equipment into the property. He was neither the owner nor the lessee of the property, and there was no evidence he had funded the cultivation or arranged the illegal electrical bypass that powered the growing operation.

  • What was the appropriate sentence for a low-level participant ("crop sitter") in a commercial cannabis cultivation operation?
  • What weight should be given to the offender's unique subjective circumstances, including financial hardship, family background, and the manner in which he became involved?
  • Whether the offence could appropriately be dealt with by way of an Intensive Corrections Order rather than full-time imprisonment.

Decision

Neilson DCJ characterised the offender as a "crop sitter," a term drawn from the Court of Criminal Appeal decisions in Truong v R and Pham v R, describing a person engaged to tend and maintain a cannabis crop without having any organisational role. His Honour accepted that the offender played a low-level maintenance role, watering plants and keeping the property in order, and was not involved in establishing, funding, or directing the operation.

His Honour accepted the psychologist's account of the offender's background and motivations. The offender had grown up in straitened circumstances in North Vietnam, lost his father at age six, and came to Australia to build a better life. Facing financial hardship and responding to what appeared to be a legitimate job advertisement, he found himself entangled in the operation. His Honour accepted that the offender had not been paid and intended to extricate himself once payment arrived.

The court applied a 25% discount to the head sentence, reflecting that the offender had pleaded guilty at the earliest available opportunity. His Honour also noted the offender was not himself a drug user, adding some support to the finding that he had limited appreciation of the broader harms of drug cultivation in the community.

Weighing all factors, including the time already served in pre-sentence custody (two months and six days), His Honour concluded that an Intensive Corrections Order was the appropriate disposal. The sentence was structured to include a substantial community service component, ensuring accountability during supervision.

Orders Made

  • Offender convicted of taking part in the cultivation of 98 prohibited plants not less than the commercial quantity.
  • Sentenced to imprisonment for 18 months, to be served by way of an Intensive Corrections Order commencing 29 October 2020.
  • Required to complete 200 hours of community service work.
  • Required not to commit any offence during the order.
  • Required to submit to supervision by a community corrections officer.
  • Required to report to the community corrections office at Fairfield within seven days.

Key Takeaways

  • The District Court confirmed that a "crop sitter" occupies the lower end of the range of culpability for commercial cannabis cultivation, consistent with the approach taken in Truong v R and Pham v R.
  • Where an offender is recruited under the guise of legitimate employment, has no organisational role, and did not fund or establish the cultivation operation, those facts are relevant mitigating considerations in sentencing.
  • A guilty plea entered at the earliest available opportunity attracts the maximum discount of 25% off the head sentence.
  • Unique subjective factors, including a difficult personal history, financial hardship, family circumstances, and absence of prior drug use, can collectively support a finding that full-time custody is not required even for a commercial-quantity drug offence.
  • An Intensive Corrections Order remains available for commercial cultivation offences where the sentencing court is satisfied, on the particular facts, that the offender's culpability and personal circumstances justify that course.

Legislation and Cases Referenced

Legislation
- No specific legislation cited in the judgment (the offence and maximum penalty were referenced without a statutory citation in the provided text).

Cases
- Truong v R [2009] NSWCCA 41
- Pham v R [2009] NSWCCA 266
- R v Pui [2020] NSWDC 119