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District Court 18 July 2022

R v Tran

[2022] NSWDC 357

Drugs

Citation: R v Tran [2022] NSWDC 357
Court: District Court of New South Wales
Date: 18 July 2022
Judge: Bennett SC DCJ

Background

The offender, a 30-year-old woman, pleaded guilty in the Local Court to three charges of knowingly taking part in the enhanced indoor cultivation of cannabis for commercial purposes, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985. She also asked the court to take into account three further offences of the same kind when sentencing her on the principal charge. Together, the offending spanned six separate residential properties across south-western Sydney, including premises at Rydalmere, Berala, Carlingford, Ermington, Eastwood, and Campsie.

The offender's role was to facilitate the rental of each property by presenting false identification. She posed under assumed names, including "Jessie Wang" and "Wen Xin Guo," using forged driver's licences and Medicare cards. She knew each property was intended for commercial cannabis cultivation by enhanced indoor means, though she was not shown to have known the precise number of plants involved. In total, police seized 982 cannabis plants across the six premises when executing search warrants in late June 2021.

At the time of her arrest, the offender was already subject to an intensive corrections order (ICO) arising from earlier cannabis cultivation offending. Her arrest led to the revocation of that ICO, a circumstance that affected how the court calculated her pre-sentence custody and the commencement date of the new sentence.

  • What sentences were appropriate for each of the three principal offences, accounting for the guilty plea discounts and the additional offences on the Form 1 (a procedural mechanism allowing other offences to be taken into account at sentencing without separate conviction)?
  • When should the aggregate sentence commence, given the interaction between the revoked ICO and the new offending?
  • Whether the principle of totality required any moderation of the aggregate sentence across all six incidents of offending?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory norm?
  • Whether the psychological evidence raised the offender's hardship in custody to the level required under DPP for the Commonwealth v De La Rosa to further reduce the sentence?

Decision

His Honour identified a guilty plea discount of 25% pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, which applied to each of the principal charges. The offender's confirmation of her pleas in the District Court, and her admission of guilt to the additional offences on the Form 1, entitled her to that discount.

On the question of commencement, his Honour accepted the approach discussed in Callaghan v R [2006] NSWCCA 58 regarding the exercise of discretion where pre-sentence custody overlaps with the period of a revoked community-based order. The sentence was ordered to commence on 29 December 2021, allowing for some accumulation upon the earlier sentence while reflecting the totality of the offender's misconduct, including the conduct that led to the ICO being revoked.

The court acknowledged mitigating factors, including the offender's family background (her mother having cut contact with her), her status as a foreign national with limited English serving her first period of full-time custody, and her lack of family support in Australia. However, his Honour agreed with the Crown that the psychological material did not bring the case within the higher threshold for sentencing concessions established in De La Rosa.

Special circumstances were found to exist, warranting a non-parole period shorter than the standard ratio, by reason of the offender serving her first period of imprisonment, her limited English, and her absence of family support in Australia. The aggregate sentence was structured as three years and six months, with a non-parole period of two years.

Orders Made

  • Offender convicted of all offences.
  • Aggregate sentence of three years and six months imposed, commencing 29 December 2021.
  • Non-parole period of two years: the offender is eligible for release to parole on 28 December 2023.
  • Parole period of one year and six months, concluding on 28 June 2025.
  • Indicated sentences: three years for sequence 17 (including the three Form 1 matters); two years and three months each for sequences 19 and 22.
  • Special circumstances found.
  • Exhibits to remain on file.

Key Takeaways

  • The District Court applied a 25% guilty plea discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999, consistent with fixed statutory discounts where the prosecution attracts that provision.
  • Where an offender's arrest causes the revocation of an existing ICO, the sentencing court retains a discretion (drawing on Callaghan v R) to determine an appropriate commencement date that reflects totality across the old and new offending.
  • Facilitating property rentals using false identity documents, with knowledge that premises will be used for commercial cannabis cultivation, constitutes knowing participation in enhanced indoor cultivation even where the offender had no direct involvement in the growing operation itself.
  • Special circumstances justifying a reduced non-parole period can arise from a combination of factors: a first period of full custody, limited English proficiency, and an absence of family support in the jurisdiction.
  • Psychological evidence of hardship in custody does not automatically attract the heightened sentencing consideration discussed in DPP for the Commonwealth v De La Rosa; the court assessed the material and found it did not meet that standard here.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 25D(2)(a)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518
- Callaghan v R [2006] NSWCCA 58
- DPP for the Commonwealth v De La Rosa (2010) 79 NSWLR 1
- Imbornone v R [2017] NSWCCA 144
- R v Qutami [2001] NSWCCA 353