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District Court 19 November 2021

R v Nguyen

[2021] NSWDC 650

Drugs
SENTENCE DRUGS MISUSE AND TRAFFICKING OFFENCE NEED RATHER THAN GREED OFFENDER ONE OF FOUR CO OFFENDERS PARITY PRINCIPLE

Citation: R v Nguyen [2021] NSWDC 650
Court: District Court of New South Wales
Date: 19 November 2021
Judge: Abadee DCJ

Background

The offender pleaded guilty to knowingly taking part in the cultivation of cannabis by enhanced indoor means, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence related to a hydroponic cannabis operation discovered on 14 May 2020 at a factory unit in Riverstone, New South Wales, where 330 cannabis plants were found growing under an elaborate setup of partitioned rooms, hydroponic lights, and watering systems.

The offender was one of four co-offenders. His involvement was established through the hiring and payment of a rental truck used by two co-accused, mobile phone contact with those co-accused, and the presence of cannabis residue in his van. His DNA and fingerprints were not found at the premises. A Form 1 offence of dealing with property suspected to be proceeds of crime (cash of $16,000) was also taken into account at sentencing.

The offender returned to Australia from Vietnam in February 2020 as COVID-19 emerged. He lost his employment, was living with co-offenders, and asserted he faced financial pressure to support his pregnant wife and family in Vietnam. His psychologist assessed him as experiencing depression and vulnerability at the time of the offending, which she considered contributed to his poor decision-making.

  • What was the appropriate assessment of the offender's culpability, given his peripheral role among four co-offenders and the alleged influence of pandemic-related financial hardship?
  • How should the court apply the parity principle when sentencing this offender relative to his co-offenders?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, and how pre-sentence custody should be accounted for within an ICO.

Decision

Abadee DCJ assessed the offender's culpability as real but at the lower end of the range, given his peripheral role. His contribution was limited to providing logistical support through the truck hire and phone contact. The court accepted that his motivation was financial need arising from pandemic-related hardship rather than greed, although it noted the offender had consciously chosen to offend despite knowing the consequences. The psychologist's evidence of depression and vulnerability at the time was accepted as a mitigating factor, though the absence of active help-seeking tempered its weight.

The court applied the parity principle, considering the sentences imposed on co-offenders. Consistency with those outcomes informed the sentencing range, and the offender's more peripheral role justified a sentence at the lower end of that range. His early guilty plea, lack of prior criminal history, and evidence of remorse and good character were also taken into account as mitigating factors.

On the question of the form of the sentence, the court determined that an Intensive Correction Order (ICO) was appropriate. An ICO is a sentence of imprisonment served in the community under supervision, rather than in full-time detention. The court followed the approach in Mandranis v R [2021] NSWCCA 97, deducting 20 days of pre-sentence custody from the two-year term to ensure the ICO commenced on the date it was made and was co-extensive with the term of imprisonment, as required by the relevant legislation. A community services work condition of 240 hours was also imposed.

Orders Made

  • The offender was convicted of the principal offence (cultivation of cannabis by enhanced indoor means).
  • Sentenced to a term of imprisonment of 1 year, 11 months, and 11 days, ending 29 October 2023, to be served by way of an Intensive Correction Order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Standard ICO conditions imposed: no further offending; submission to supervision by a Community Corrections Officer.
  • Additional condition: 240 hours of community services work (subject to COVID-19 restrictions on availability).
  • The offender directed to contact the Fairfield Community Corrections Office within 7 days.
  • The psychologist's report was directed to be brought to the attention of the supervising Community Corrections Officer.
  • Cash of $16,000 forfeited to the State pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW).

Key Takeaways

  • Pandemic-related financial hardship can be accepted as a mitigating circumstance in sentencing, but it does not excuse deliberate offending where the offender acknowledged awareness of the consequences and made a conscious choice.
  • A peripheral role among co-offenders, established through logistical rather than operational involvement, may place an offender at the lower end of the culpability range for a commercial cannabis cultivation offence.
  • The parity principle requires the sentencing court to consider sentences imposed on co-offenders and to achieve consistency, adjusting for the relative culpability of each participant.
  • Under the approach confirmed in Mandranis v R [2021] NSWCCA 97, where an offender has served pre-sentence custody and the court intends to impose an ICO, the term of imprisonment must be reduced by the period of pre-sentence custody so the ICO commences on the day it is made and aligns with the sentence term.
  • Psychological evidence of depression and vulnerability at the time of offending may carry mitigating weight, though its significance can be limited where the offender did not actively seek treatment despite having the opportunity to do so.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW) s 23
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 7, 17D, 66
- Crimes Act 1900 (NSW) s 193C
- Confiscation of Proceeds of Crime Act 1989 (NSW) s 18
- Crimes (Administration of Sentences) Regulation 2014 (NSW) cl 187(1)(c)(ii)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- Mandranis v R [2021] NSWCCA 97
- Green v The Queen (2011) 244 CLR 462
- Parente v R (2017) 96 NSWLR 633
- R v Pullen (2018) A Crim R 509