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District Court 28 May 2021

R v Vu

[2021] NSWDC 221

Drugs
SENTENCE DRUG OFFENCE CULTIVATION OF PROHIBITED PLANT CONSUMING ELECTRICITY WITHOUT AUTHORITY

Citation: R v Vu [2021] NSWDC 221
Court: District Court of New South Wales
Date: 28 May 2021
Judge: Abadee DCJ

Background

The offender, a 53-year-old Vietnamese man who had migrated to Australia in 2007, pleaded guilty to cultivating 478 cannabis sativa plants by enhanced indoor means at a property in Leonay. The cultivation occurred over approximately five weeks between May and June 2020, and was detected through a police strikeforce investigation into organised criminal activity in the Sydney region.

Police executing a search warrant found ten active grow rooms fitted with sophisticated hydroponic equipment. The offender had been paid $300 per day to water, fertilise, harvest, and dry the plants. A representative from Endeavour Energy identified illegal bypasses on the electrical system that had diverted approximately $659,126 worth of unmetered electricity to power the hydroponic setup.

The offender also asked the court to take into account, on a Form 1, the offence of consuming electricity without authority under the Electricity Supply Act 1995 (NSW). He gave evidence that his only involvement with the electrical system was changing lightbulbs, which the Crown did not challenge.

  • What was the appropriate objective seriousness of the principal cultivation offence, having regard to the scale of the operation and the offender's role within it?
  • How should financial motivation be characterised: as an aggravating factor or as an aspect of objective seriousness?
  • What weight should be given to the offender's subjective circumstances, including health issues, financial hardship, and the psychological diagnoses?
  • Whether special circumstances existed to justify varying the standard non-parole period.

Decision

Objective seriousness and role. The court assessed the offending as falling well below the midrange of objective gravity for this class of offence. The offender was, in effect, a "babysitter" performing routine care of the plants in exchange for modest daily pay. He had no role in establishing the enterprise and no involvement in distribution or supply. The scale and sophistication of the operation were relevant to the assessment, but they reflected the enterprise as a whole rather than the offender's individual criminality.

Financial motivation. Abadee DCJ declined to treat financial gain as a statutory aggravating factor, preferring to treat it as part of the objective seriousness assessment. The court accepted that the offender's motivation was not greed. He had incurred a significant medical debt of around $30,000 following a serious kidney and blood disorder in 2019, lost his employment, found himself unable to access Medicare or Centrelink benefits due to visa issues, and became financially dependent on his son. His son's subsequent inability to return from Vietnam because of the pandemic compounded these pressures.

Subjective case. The court accepted a diagnosis of generalised anxiety disorder, major depressive disorder, and gambling disorder, as recorded in the psychologist's report. However, no causal link was established between those conditions and the offending. The offender's previously unblemished record, combined with the conjunction of unfortunate and largely external events that led him to offend, entitled him to some leniency. The court characterised his situation as a "fall from grace" rather than the conduct of a person motivated by greed.

Special circumstances. The court found special circumstances existed to extend the parole period beyond the standard ratio, given that this was the offender's first time in custody and he would benefit from psychological support to assist reintegration. The sentence was backdated to 17 June 2020, the date the offender entered custody.

Orders Made

  • Convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means (sequence 1).
  • Sentenced to imprisonment for 3 years and 9 months, commencing 17 June 2020 and expiring 16 March 2024.
  • Non-parole period of 2 years and 3 months, expiring 16 September 2022, after which the offender is eligible for release on parole.
  • The psychologist's report and treatment plan directed to be brought to the attention of those responsible for the offender's supervision in custody.
  • Drug proceeds order made by consent under s 29(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW): $2,800 payable to the State.
  • Drug destruction order made by consent under s 39F(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

Key Takeaways

  • An offender who acts as a low-level caretaker ("babysitter") of a large-scale hydroponic cannabis operation, without involvement in its establishment or in distribution, may be sentenced at a level well below the midrange of objective gravity even where the number of plants significantly exceeds the large commercial quantity threshold.
  • Financial motivation in cultivation cases is relevant to objective seriousness rather than necessarily constituting a separate aggravating factor, and courts may accept that motivation was need-driven rather than greed-driven where the evidence supports that conclusion.
  • A Form 1 offence of consuming electricity without authority carries reduced weight in the sentencing exercise where the principal offender had no meaningful role in, or awareness of, the illegal electrical bypass.
  • Special circumstances justifying variation of the standard non-parole period may be established where an offender is entering custody for the first time and has identified psychological needs that treatment during the parole period could address.
  • The District Court confirmed the approach from Andreata v R and related Court of Criminal Appeal authorities: assessing cultivation offences requires close attention to the offender's individual role within the enterprise, not merely the scale of the enterprise itself.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 39F
- Electricity Supply Act 1995 (NSW), s 64
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29

Cases
- Tran v R [2018] NSWCCA 220
- Andreata v R [2015] NSWCCA 239
- Nguyen v R [2007] NSWCCA 94
- Gattellari v R [2007] NSWCCA 5
- R v Cheikh [2004] NSWCCA 448
- R v Leroy [1984] 2 NSWLR 441