Citation: R v Tan [2021] NSWDC 355
Court: District Court of New South Wales
Date: 14 May 2021
Judge(s): M L Williams SC DCJ
Background
The offender, a 32-year-old Malaysian man who had come to Australia in 2015 for work and study, was the third person sentenced in connection with a large-scale cannabis plantation discovered on a rural property at Marulan, New South Wales. The plantation comprised nine polytunnels stretching 50 metres each, containing 2,443 cannabis plants, well exceeding the statutory threshold of 200 plants for a "large commercial quantity" under the relevant legislation. The offender was arrested on 5 June 2020, along with one co-offender, when police attended the property and found them sorting bamboo sticks at the end of a polytunnel.
The offender pleaded guilty on arraignment in the District Court. He had no prior criminal history and had been held in custody since the date of his arrest. The Crown conceded there was no evidence he had been involved in financing or establishing the plantation.
Legal Issues
- What sentence was appropriate for cultivating a large commercial quantity of cannabis, having regard to the offender's plea of guilty, subjective circumstances, and the principle of parity with co-offenders?
- Whether the absence of any promised financial reward distinguished the offender's culpability from that of his co-offenders.
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.
Decision
The offender was convicted of cultivating a large commercial quantity of a prohibited plant (cannabis) contrary to s 23(2)(a) of the Drugs (Misuse and Trafficking) Act 1985, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The court accepted that full-time custody was the only appropriate sentence, as conceded by defence counsel.
The court identified general deterrence and parity as significant sentencing factors, given that two co-offenders had already been sentenced for their roles in the same plantation. One co-offender had expected payment of $10,000 per month; another had expected $20,000 per month. By contrast, the offender in this matter had not been promised any financial reward, on unchallenged evidence. The court accepted defence counsel's submission that this absence of promised financial remuneration was a meaningful point of distinction warranting a more lenient sentence.
The court applied a 10% discount to reflect the guilty plea entered on arraignment. Although the plea came later than those of the co-offenders, the court found no evidence of delay or any intention to contest the charge at any point. The offender's good character, absence of prior convictions, and status as a first-time custodial detainee were noted as mitigating factors.
Special circumstances were found, justifying a non-parole period proportionally shorter than the statutory norm. The court pointed to two bases: this was the offender's first time in custody, and his conditions of imprisonment would be more onerous than those of a native English speaker.
Orders Made
- The offender was convicted of cultivating a large commercial quantity of cannabis contrary to s 23(2)(a) of the Drugs (Misuse and Trafficking) Act 1985.
- A sentence of 29 months imprisonment was imposed, commencing 5 June 2020.
- A non-parole period of 14 months was set, expiring 4 August 2021.
- Special circumstances were found.
- A back-up offence (sequence 2, on a s 166 certificate) was withdrawn.
Key Takeaways
- The District Court treated the absence of any promised financial reward as a significant mitigating factor distinguishing this offender from co-offenders who had each been promised substantial monthly payments for their roles in the same plantation.
- Parity with co-offenders was a live consideration, but the court was prepared to impose a materially different sentence where a genuine subjective distinction existed.
- A 10% guilty plea discount applied notwithstanding that the plea was entered later than those of co-offenders, where there was no suggestion of deliberate delay or any intention to contest the charge.
- Special circumstances were established on two grounds: the offender's first experience of custody, and the additional hardship of imprisonment for a non-native English speaker.
- Cultivating a large commercial quantity of cannabis in a sophisticated, large-scale operation attracts full-time imprisonment, with general deterrence remaining a weighty sentencing consideration even where an offender's individual culpability is at the lower end of the range.
Legislation and Cases Referenced
Legislation
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 23(2)(a)
Cases
- R v Huat [2021] NSWSDC 87
- R v Choo [2021] NSWDC 351