AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 October 2021

R v Le

[2021] NSWDC 524

DrugsFraud & dishonesty
CRIME CANNABIS DEAL WITH PROPERTY PROCEEDS OF CRIME VALUE OF PROPERTY LESS THAN $100,000.

Citation: R v Le [2021] NSWDC 524
Court: District Court of New South Wales
Date: 1 October 2021
Judge(s): Mahony SC DCJ

Background

The offender, a young Vietnamese man in his mid-twenties, pleaded guilty to two offences: cultivating a commercial quantity of cannabis plants, and dealing with proceeds of crime. The cultivation offending occurred between 16 October and 25 November 2020 at a property in Beecroft that had been converted into a hydroponic cannabis operation. When police executed a search warrant on 25 November 2020, they found the offender on site together with 149 cannabis plants spread across five rooms.

The offender was not the organiser of the enterprise. His role was limited to attending the premises on a regular basis, usually for short periods, to assist in maintaining the crop. The property, its setup, and the broader operation were controlled by others who were never identified. The proceeds of crime charge related to $1,120 in cash found in his car, which the offender said represented his savings.

The offender had no prior criminal record and offered an explanation for his involvement: having lost his employment during the COVID-19 lockdown and being ineligible for government support as a bridging visa holder, he was in acute financial distress. He had spent 35 days in pre-sentence custody before being released on bail.

Legal Issues

  • Whether the objective seriousness of the cannabis cultivation offence fell below the mid-range for a charge under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985
  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (requiring that no other penalty be appropriate before imprisonment is imposed) was crossed for either offence
  • Whether the sentence should be served by way of full-time custody or an intensive correction order (ICO)
  • How to weigh the aggravating and mitigating factors, including the role of financial desperation, limited role in the operation, good character, remorse, and the psychological evidence

Decision

Issue 1: Objective seriousness

The court found that the offending in sequence 1 fell below the mid-range and towards the middle of the low range for an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (at [57]). Although 149 plants represented almost three times the commercial quantity threshold, the offender's role was confined to assisting others and he was not involved in organising, funding, or setting up the operation (at [55]). The degree of sophistication in the indoor cultivation setup was not found to exceed that inherent in any enhanced cultivation operation (at [56]). The proceeds of crime charge, involving only $1,120, fell towards the lowest end of the range for that offence (at [58]).

Issue 2: Aggravating and mitigating factors

The court was cautious about double-counting the two statutory aggravating factors: organised criminal activity and financial gain. Because participation in an organised criminal activity is inherent in a commercial cultivation offence, and because there was no evidence the offender stood to share in the profits from eventual drug supply, those factors were not treated as additional aggravating circumstances (at [59]). The offender's good character and absence of prior convictions were accepted as mitigating factors, though the court confirmed that good character carries reduced weight in commercial drug cultivation cases where operations are difficult to detect and young people of good character are deliberately recruited (at [60]). A 25% utilitarian discount applied for the early guilty plea, and the court accepted genuine remorse (at [61]).

Issue 3: Psychological evidence

The court approached Dr Lennings' psychological report with care. It did not accept that the identified symptoms of dysthymia amounted to a clinical diagnosis or that low mood had impaired the offender's judgment (at [64]). The court found the offending was driven by desperate financial circumstances arising from COVID-19 job loss and ineligibility for welfare, rather than any mental health condition. Accordingly, the court was not satisfied that a custodial sentence would weigh more heavily on the offender than on the general prison population, and rejected the argument that he was an inappropriate vehicle for general deterrence on mental health grounds (at [64]).

Issue 4: Full-time custody versus ICO

The court was satisfied that the s 5 threshold was crossed for sequence 1 but not for sequence 3 (at [66]). For sequence 1, a starting point of 2 years' imprisonment was adopted, reduced to 18 months after the 25% guilty plea discount (at [67]). The court then assessed whether an ICO or full-time custody would better address the risk of reoffending, as required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999. It concluded that the offender's continued rehabilitation in the community, supported by full-time employment and a stable relationship, would more effectively address that risk, and that he presented no threat to community safety (at [67]). An ICO for 18 months was imposed, with 35 days' pre-sentence custody deducted in accordance with Mandranis v R [2021] NSWCCA 97. A concurrent community correction order of six months was imposed for sequence 3 (at [68]).

Orders Made

  • Sequence 1 (cannabis cultivation): convicted and sentenced to 18 months' imprisonment, less 35 days' pre-sentence custody, to be served by way of an intensive correction order commencing 1 October 2021 and terminating 24 February 2023
  • Sequence 3 (proceeds of crime): convicted and sentenced to a community correction order of six months, to be served concurrently with the ICO
  • Confiscation order made by consent under s 18(1) of the Confiscation of Proceeds of Crime Act 1989 for the $1,120 cash found at Beecroft on 25 November 2020, forfeited to the State

Key Takeaways

  • A conviction for commercial cannabis cultivation does not automatically require full-time custody. Where an offender has a limited role, no prior record, genuine remorse, low reoffending risk, and stable community ties, a court may find that an ICO better serves the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999, including rehabilitation and community safety (at [67]).

  • Good character carries diminished weight in commercial drug cultivation sentencing. The District Court confirmed the established principle that, because such operations deliberately recruit young people of otherwise good character to avoid detection, that mitigating factor has less force than in other contexts (at [60]).

  • Financial desperation linked to COVID-19 job loss and visa-related ineligibility for government support was accepted as context for the offending, but the court made clear it did not excuse the conduct (at [64]).

  • Psychological evidence that is based solely on self-reporting and does not produce a formal clinical diagnosis will receive limited weight. Where the offender does not rely on that evidence as causative of the offending, the court may decline to treat it as a basis for reducing the weight given to general deterrence (at [64]).

  • Under Mandranis v R [2021] NSWCCA 97, pre-sentence custody can be deducted from an ICO term as part of an aggregate sentencing approach (at [67]).

Legislation and Cases Referenced

Legislation
- Confiscation of Proceeds of Crime Act 1989
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Gore v R; Hunter v R [2010] NSWCCA 330
- Huang v R [2017] NSWCCA 312
- Kearsley v R [2017] NSWCCA 28
- Mandranis v R [2021] NSWCCA 97
- Nguyen v R [2011] NSWCCA 127
- R v Engert (1995) 84 A Crim R 67
- The Queen v Olbrich (1999) 199 CLR 270
- Tran v R [2018] NSWCCA 220