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District Court 11 August 2021

R v Chan

[2021] NSWDC 531

Drugs

Citation: R v Chan [2021] NSWDC 531
Court: District Court of New South Wales
Date: 11 August 2021
Judge(s): Bennett SC DCJ

Background

The offender, a Malaysian national of Chinese heritage with limited English and no family in Australia, appeared for sentencing on a single charge under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). On 1 October 2020, police executed a search warrant at a property in Marsfield and discovered 172 cannabis plants cultivated by enhanced indoor means. The quantity involved met the commercial threshold under the Act.

The offender had pleaded guilty in the Local Court and was committed to the District Court for sentencing. He was assessed as playing a relatively low-level role in the enterprise and could not be identified as a principal organiser.

  • The correct statutory basis for charging an offence involving commercial-scale cultivation by enhanced indoor means under the Drug Misuse and Trafficking Act 1985
  • How the interaction of ss 23(1), 23(1A), 23(2)(a), and 23A, together with Schedule 1 of the Act, determines the seriousness of the offending
  • The appropriate sentence, taking into account objective and subjective factors including the offender's plea of guilty, his personal circumstances, and the level of his participation

Decision

The court worked through the legislative structure of s 23 and Schedule 1 in some detail, noting that the provision under which the offender was charged, s 23(2)(a), does not expressly refer to enhanced indoor cultivation. That feature appears explicitly in s 23(1A), which applies to quantities between the small quantity and the commercial quantity cultivated for a commercial purpose. Section 23A further addresses enhanced indoor cultivation but only where a child is exposed to the process.

The court explained that the reference to enhanced indoor cultivation in the charge particulars was not anomalous. Schedule 1 of the Act sets lower commercial quantity thresholds for cannabis plants cultivated by enhanced indoor means (50 plants) compared with other cultivation (250 plants). This mechanism makes enhanced indoor cultivation a more serious category of offending: the same number of plants reaches the commercial threshold at a lower count.

On sentence, the court identified a head sentence of two years and six months before applying a 25 per cent discount for the early guilty plea, in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The resulting sentence was one year and ten months, but after rounding, the court structured the sentence as a head term of two years and six months with a non-parole period of one year and three months. Special circumstances were found to exist, warranting a longer than usual period on parole, given that the offender was a first-time custodial inmate, had no family support in Australia, was of a different cultural background, and would need assistance reintegrating after release.

The court declined to give weight to the argument that harm to the community was minimised by the operation's disruption, noting that the plantation was discovered solely due to police interdiction and not through any cooperation by the offender. The court also declined to treat the offender's refusal to participate in a police interview, or to identify his principals, as an aggravating factor, recognising that people in his position may face serious personal risk from doing so.

Orders Made

  • The offender convicted of the offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985
  • Head sentence of two years and six months, commencing 1 October 2020
  • Non-parole period of one year and three months, commencing 1 October 2020, expiring 31 December 2021
  • Balance of sentence expiring 31 March 2023
  • Offender to be released to parole on expiration of the non-parole period

Key Takeaways

  • Under Schedule 1 of the Drug Misuse and Trafficking Act 1985, commercial quantity thresholds for cannabis are significantly lower where cultivation is by enhanced indoor means (50 plants) than for other cultivation (250 plants), making the charging of enhanced indoor cases at a commercial threshold easier to achieve with fewer plants.
  • A charge under s 23(2)(a) for commercial-scale cultivation may properly include particulars of enhanced indoor means, even though that provision does not expressly mention enhanced indoor cultivation, because the lower commercial thresholds in Schedule 1 for enhanced indoor cultivation do the legislative work of treating such offending more seriously.
  • Special circumstances justifying a reduced non-parole period relative to the head sentence can arise from a combination of factors including a first period of custody, absence of family support, cultural and language differences, and the need for supervised reintegration.
  • Refusing to participate in a police interview or to identify co-offenders does not constitute an aggravating factor in sentencing, particularly where the court recognises the practical risks that cooperation may pose for the offender.
  • The fact that a drug operation was disrupted before its product reached the community carries limited mitigating weight where the disruption resulted entirely from police action rather than any voluntary step by the offender.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1), 23(1A), 23(1B), 23(1C), 23(2)(a), 23A, 32, 33, Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(a), Part 4 Div 1A

Cases:
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353