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District Court 26 November 2021

R v Dinh

[2021] NSWDC 678

Drugs

Citation: R v Dinh [2021] NSWDC 678
Court: District Court of New South Wales
Date: 26 November 2021
Judge(s): M L Williams SC DCJ

Background

The offender, a Vietnamese national who had entered Australia on a student visa in 2014, pleaded guilty to cultivating a prohibited plant in excess of the large commercial quantity under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The charge related to 2,441 cannabis plants found growing in 13 commercial-grade greenhouses on a remote rural property of nearly 400 hectares at Ballymore, which had been under police surveillance for approximately eight months.

The offender admitted in a police interview that he had been directed to water and harvest plants at the property, visiting four times in total. He said his uncle introduced him to the operation and that he had been promised $50,000 upon harvest. He said he lost his job during COVID-19 and his family in Vietnam could not support him financially.

A related offence of possessing 9.1 grams of cannabis (found on him at arrest) was dealt with on a s 166 certificate. The offender had been in custody since his arrest on 27 April 2020.

  • What was the appropriate head sentence and non-parole period for a large commercial cannabis cultivation offence, taking into account the offender's limited role?
  • How should the court weigh the aggravating factor of planned criminal activity against multiple mitigating factors, including guilty plea, first offence, remorse, good character, and rehabilitation?
  • Whether special circumstances existed to justify a non-parole period shorter than the standard proportion.
  • How the harshness of custody during the COVID-19 pandemic should factor into the sentence.

Decision

The court characterised the operation as a large, significant commercial enterprise involving planning over several months, which constituted an aggravating factor. However, the offender's personal role was assessed as well below the mid-range of objective seriousness. His conduct was analogous to what sentencing courts have described as a "crop sitter," "foot soldier," or "hired labourer," consistent with the terminology adopted in R v Duong; R v Phan [2016] NSWDC 414.

The court accepted the offender's expressions of remorse as genuine, noting his detailed letter to the court, his exemplary custodial record, and his employment in the print shop at Wellington Correctional Centre within a month of arriving. His prospects for rehabilitation were considered good, supported by family, and he was assessed as presenting a low risk of reoffending. The $50,000 promised wage suggested the offender's role may have been slightly more substantial than he acknowledged, but the court accepted that his employers may have exaggerated the figure to incentivise him.

A 25% discount was applied to reflect the utilitarian value of the guilty plea. The court also acknowledged that the offender's time in custody had been materially harsher than usual due to COVID-19 restrictions, including limited visitation, cancelled courses, extended lockdowns, and periods of isolation. Special circumstances were found, based on the offender's first custodial experience and relative youth, justifying a non-parole period shorter than the statutory standard.

Orders Made

  • Sequence 2 (Cultivate prohibited plant, large commercial quantity): Convicted; sentenced to 28 months' imprisonment commencing 27 April 2020, with a non-parole period of 18 months expiring 26 October 2021; special circumstances found.
  • Sequence 4 (Possess prohibited drug): Convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed.

Key Takeaways

  • The District Court confirmed that a low-level participant in a large-scale commercial cannabis cultivation operation, characterised as a "foot soldier" or "crop sitter," may be sentenced well below the mid-range of objective seriousness even where the overall operation is significant.
  • A promised payment upon harvest does not automatically elevate an offender's role, particularly where there is evidence the promise may have been inflated to secure labour.
  • Where an offender demonstrates genuine remorse, maintains an exemplary custodial record, and presents a low risk of reoffending, those mitigating factors carry meaningful weight in reducing the sentence, even against an aggravating background of planned criminal activity.
  • Pandemic-related custodial conditions, including extended lockdowns, restricted visitation, and cancelled rehabilitation courses, are a relevant consideration when determining the appropriate sentence.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may convict an offender of a related offence recorded on a certificate without imposing any additional penalty.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A

Cases
- R v Duong; R v Phan [2016] NSWDC 414
- R v Huat [2021] NSWDC 87
- R v Tan [2021] NSWDC 355
- R v Choo [2021] NSWDC 351