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District Court 4 February 2021

R v Huat

[2021] NSWDC 87

Drugs

Citation: R v Huat [2021] NSWDC 87
Court: District Court of New South Wales
Date: 4 February 2021
Judge: ML Williams SC DCJ

Background

The offender, a 21-year-old Malaysian national, came to Australia in late 2019 after completing high school. He initially worked as an electrician before accepting a role tending a large cannabis plantation at the recommendation of a friend, expecting to earn $20,000 per month. In practice, he received only accommodation and food, and had not been paid at all.

Police attended the Marulan property on 5 June 2020 and discovered 2,443 cannabis plants growing in a sophisticated network of tunnels. The offender fled into surrounding bushland at the time of the police operation. Three days later, encouraged by his mother, he presented himself to Goulburn Police Station and voluntarily admitted his involvement.

The offender had no prior criminal history. The Crown conceded there was no evidence he had financed or established the cultivation operation. He was convicted of cultivating a large commercial quantity of cannabis, with the sole question before the court being the appropriate sentence.

  • What was the appropriate sentencing discount for a guilty plea combined with voluntary surrender and assistance to police?
  • Where did the offence sit in the range of objective seriousness, given the scale of the operation and the offender's limited role within it?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence.
  • How general deterrence should be weighed alongside the offender's personal mitigating circumstances.

Decision

The court assessed the objective seriousness of the offence as below the mid-range. Although 2,443 plants represented a quantity far exceeding the large commercial threshold of 200 plants, and the setup was sophisticated, the offender played a maintenance role only. He had no involvement in financing or establishing the operation, and was recruited by another person to tend and water the plants.

The court applied a total sentencing discount of 40 percent. A 25 percent reduction reflected the utilitarian value of the guilty plea under established principles. A further 15 percent was allowed under the principle in R v Ellis (1986) 6 NSWLR 603, recognising the offender's voluntary surrender and the information he provided to police. The court noted that full-time custody was conceded as necessary and no alternatives to imprisonment required consideration.

The court accepted that general deterrence carried significant weight in drug cultivation offences of this scale, referencing R v Ha [2004] NSWCCA 386 and the well-recognised social harms of commercial drug trafficking. At the same time, the court accepted several mitigating factors: the guilty plea, a low likelihood of reoffending, and the absence of aggravating factors beyond those inherent in the offence type.

Special circumstances were found to exist, justifying a non-parole period shorter than the standard proportion of the total sentence. The court identified three factors supporting that finding: the offender's youth, the fact that this was his first time in custody, and the additional hardship his custodial term presented due to language barriers and the absence of family support in Australia.

Orders Made

  • The offender is convicted of the offence.
  • A sentence of imprisonment of 21 months is imposed, commencing 8 June 2020, reflecting a 40 percent discount (25 percent for the guilty plea and 15 percent for voluntary surrender and assistance).
  • A non-parole period of 11 months is imposed, expiring 7 May 2021.
  • Special circumstances are found.

Key Takeaways

  • A combined discount of 40 percent was available where an offender entered a guilty plea and also voluntarily surrendered and provided information to police, with the Ellis component contributing 15 percent on top of the standard utilitarian plea discount.
  • Where a defendant played a purely maintenance role in a large-scale commercial cannabis operation, with no involvement in financing or establishing the enterprise, the court treated the objective seriousness as below the mid-range despite the quantity of plants significantly exceeding the large commercial threshold.
  • Special circumstances justifying a reduced non-parole period can arise from the combination of an offender's youth, the fact of a first custodial sentence, and the additional difficulties of serving that sentence in a foreign country without family support or fluency in the language.
  • General deterrence remains a significant sentencing consideration in commercial cannabis cultivation cases, regardless of an individual offender's limited role, consistent with the Court of Criminal Appeal's observations in R v Ha.
  • No parity issues arose in this sentencing because none of the co-offenders had yet been sentenced at the time the court imposed sentence on this offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases:
- R v Ellis (1986) 6 NSWLR 603 (discount for voluntary surrender and assistance to police)
- R v Ha [2004] NSWCCA 386 (social consequences of commercial drug trafficking and the role of deterrence)