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District Court 1 July 2021

R v Hoang; R v Bui

[2021] NSWDC 299

Drugs
CRIMINAL LAW OFFENDERS SENTENCING GENERAL SENTENCING PRINCIPLES OBJECTIVE SERIOUSNESS SPECIAL CIRCUMSTANCES

Citation: R v Hoang; R v Bui [2021] NSWDC 299
Court: District Court of New South Wales
Date: 1 July 2021
Judge(s): Coleman SC DCJ

Background

Two co-offenders, described by their roles below as the first offender and the second offender, appeared for sentence in relation to charges of cultivating cannabis by enhanced indoor means contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW). Each offender had pleaded guilty at the earliest opportunity and was entitled to a 25% discount on sentence. The offences arose from a police investigation into a drug supply syndicate, which included lawful interception of mobile phones and coordinated searches of multiple premises in Sydney's south-west in March 2020.

The first offender (Hoang) was connected to a hydroponic cannabis operation at a Revesby property containing 90 plants, with DNA evidence and surveillance footage placing him there. The second offender (Bui) was linked to a separate Punchbowl property containing 68 plants, with phone data supporting his involvement. Both offenders also shared a residential address in Bankstown where a further 113 cannabis seedlings and 24.5 grams of cannabis were found. Each offender requested the court take into account additional charges on Form 1, including possession of cannabis, cultivation at the Bankstown property, and illegal use of electricity (both operations had bypassed electrical meters).

The agreed facts characterised both offenders as "crop-sitters" rather than principals of the syndicate. They were paid participants, not the financiers or organisers behind the cultivation operations.

  • What was the appropriate objective seriousness of the principal offences, having regard to the offenders' limited roles as paid crop-sitters rather than syndicate principals?
  • What weight should be given to the Form 1 matters in elevating the sentences imposed for the principal offences?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the different personal circumstances of each offender (including time in custody, age, criminal history, and prospects of rehabilitation) affect the individual sentences?

Decision

His Honour assessed the objective seriousness of both principal offences as falling below the mid-range, primarily because each offender's role was limited to crop-sitting at premises controlled and financed by others in the syndicate. The court noted that while the number of plants was relevant (90 at Revesby, 68 at Punchbowl) and the hydroponic set-ups were sophisticated, the most significant determinant was the offender's role in the overall operation, citing R v Melikian [2008] NSWCCA 156. Neither offender brought horticultural expertise to bear or sought personal profit beyond payment for their participation.

The court confirmed that cannabis cultivation by enhanced indoor means using hydroponic technology is a serious category of offending, warranting meaningful penalties to reflect the sentencing purposes of deterrence, denunciation, and punishment under s 3A of the Crimes (Sentencing Procedure) Act 1999. The Form 1 matters were taken into account and operated to increase each head sentence beyond what would otherwise have been imposed for the principal offence alone.

Special circumstances were found for both offenders. For the first offender (Hoang), the extended period of pre-sentence custody, combined with his need for supervision upon release to assist with rehabilitation, supported a departure from the standard ratio. For the second offender (Bui), his youth, first-time offending status, genuine remorse, and rehabilitation prospects similarly justified a finding of special circumstances. The court noted Bui had also been instructed by another co-offender (not before the court) on how to set up the electricity connection, further contextualising his role.

The first offender had been in continuous custody since arrest in March 2020 and could not meet bail. His sentence was backdated to the date of arrest. The second offender had served some time in custody before being released on bail in March 2021, and his sentence was backdated to July 2020 to account for the period served.

Orders Made

Hoang:
- Convicted of cultivating a prohibited plant by enhanced indoor means (cannabis), not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW).
- Sentenced to full-time imprisonment for 22 months, with a non-parole period of 16 months.
- Sentence backdated to commence 25 March 2020; head sentence expires 24 January 2022; non-parole period expired 24 July 2021.

Bui:
- Convicted of the same offence category committed at the Punchbowl property.
- Sentenced to full-time imprisonment for 18 months, with a non-parole period of 11 months.
- Sentence backdated to commence 17 July 2020; head sentence expires 16 January 2022; non-parole period expired 16 June 2021.
- Ordered to attend the local parole office listed on the Sentencing Assessment Report within 3 days of the orders.

Key Takeaways

  • In sentencing for cannabis cultivation offences, the offender's role within the overall operation is the most significant factor in assessing objective seriousness. Quantity of plants and sophistication of the set-up are relevant but not determinative, particularly where the offender was a paid participant rather than an organiser or financier.

  • A 25% sentencing discount for an early guilty plea was accepted by the Crown and applied to both offenders, consistent with established practice under the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established through a combination of factors including extended pre-sentence custody, youth, first-time offending, and genuine rehabilitation prospects. The District Court applied this reasoning to reduce the non-parole period relative to the head sentence for both offenders.

  • Form 1 matters, where admitted and accepted by the court, operate to increase the sentence imposed on the principal offence. Their presence must be reflected in a higher sentence than would otherwise be warranted.

  • Co-offenders charged from the same syndicate may properly receive different sentences where their individual circumstances, including time spent in custody before sentence and personal background, differ materially.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 23(1)(a), 23(1A), 33(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(n), 25D(2)(a), 44
- Electricity Supply Act 1995 (NSW), s 64(1)

Cases:
- R v Nguyen [2019] NSWCCA 209
- R v Nguyen [2006] NSWCCA 389
- R v Melikian [2008] NSWCCA 156
- Nguyen v R [2007] NSWCCA 94
- R v Godden [2005] NSWCCA 160
- R v Mangano [2006] NSWCCA 35
- Knight v R [2010] NSWCCA 51
- Lewin v R [2017] NSWCCA 65
- PH v R [2017] NSWCCA 79
- Usher v R [2016] NSWCCA 276