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District Court 17 March 2021

R v Choo

[2021] NSWDC 351

Drugs

Citation: R v Choo [2021] NSWDC 351
Court: District Court of New South Wales
Date: 17 March 2021
Judge(s): M L Williams SC DCJ

Background

The offender, a 22-year-old Malaysian national, arrived in Australia in October 2019 on a three-month tourist visa. After his visa expired he applied for a refugee visa and was on a bridging visa at the time of the offence. With construction work drying up during the COVID-19 pandemic, he was recruited by a friend and taken to a rural property at Marulan, where he was told the work involved maintaining farm sheds for $10,000 per month.

Police attended the property on 5 June 2020 and found nine polytunnels containing 2,443 cannabis plants, together with sophisticated cultivation equipment including an intricate watering system. The offender was arrested at the scene alongside two other men; a fourth co-offender fled and surrendered three days later. The offender told police he had been there for about two weeks and that his role was maintenance and renovation work, not tending the plants.

The offender pleaded guilty to one count of cultivating a prohibited plant in a large commercial quantity, contrary to s 23(2)(a) of the Drug (Misuse and Trafficking) Act 1985. His counsel conceded that full-time custody was unavoidable in the circumstances.

  • What was the appropriate starting point for the sentence, having regard to parity with the co-offender Mr Huat who had already been sentenced?
  • What discount applied for the early guilty plea?
  • Where did the offending fall on the scale of objective seriousness for this category of offence?
  • What weight should be given to mitigating subjective factors, including the offender's age, background, lack of prior record, remorse, and the additional hardship of custody for a non-English-speaking foreign national?
  • Was a finding of special circumstances warranted, justifying a shorter non-parole period relative to the head sentence?
  • What role did general deterrence play in the sentencing exercise?

Decision

The court adopted a notional starting point of 35 months imprisonment, consistent with the sentence imposed on co-offender Mr Huat, whose role was agreed to be similar to the offender's. A 25% discount was applied for the early guilty plea, reducing the head sentence to 26 months.

On objective seriousness, the court placed the offending below the mid-range. While the operation was large and sophisticated, the prosecution conceded there was no evidence the offender was involved in financing or establishing the cultivation. He was recruited by another person, had received no payment, and came from a disadvantaged background. The threshold for the large commercial quantity by enhanced indoor means is 200 plants; here, 2,443 plants were found.

The court acknowledged that general deterrence carries particular weight in commercial drug cultivation cases, given the social harm associated with the trade in prohibited drugs, including violence and the corruption of legitimate businesses. Notwithstanding that, the court accepted the offender's remorse, good character, and guilty plea as mitigating factors. It also noted that custody would be more onerous for this offender given his lack of English language skills and absence of local family support.

A finding of special circumstances was made, having regard to the offender's first period of custody, his lack of prior record, and the additional difficulties he faced in a custodial environment. The court noted that the prospect of deportation on release was irrelevant to the sentencing exercise.

Orders Made

  • Plea of guilty confirmed; offender convicted of cultivating a prohibited plant in a large commercial quantity.
  • Sentence of imprisonment of 26 months, commencing 5 June 2020.
  • Non-parole period of 13 months, expiring 4 July 2021.
  • Special circumstances found.
  • Charge of found on/entering/leaving drug premises (Sequence 2) withdrawn.

Key Takeaways

  • The District Court applied the parity principle by adopting the same 35-month notional starting point used for co-offender Mr Huat, where both offenders were agreed to have played similar roles in the cultivation operation.
  • A 25% discount for an early guilty plea applied to reduce the head sentence, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
  • General deterrence carries significant weight in large commercial drug cultivation matters, even where an individual offender played a relatively subordinate, recruited role.
  • Special circumstances were established where the offender was serving his first custodial sentence, had no prior record, and faced additional hardship in custody due to language barriers and the absence of local family support.
  • The potential deportation of a foreign national offender on release is irrelevant to the sentencing process, and the court explicitly set that consideration aside.

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:
- R v Huat [2021] NSWDC 87