Citation: R v Eng; R v Ong [2023] NSWDC 536
Court: District Court of New South Wales
Date: 24 April 2023
Judge: King SC DCJ
Background
Two Malaysian nationals, referred to here as the first and second offenders, each faced a single charge of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means, contrary to s 23(2)(a) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty for this offence is 20 years' imprisonment and/or 5,000 penalty units, with a standard non-parole period of 10 years.
Police from Strike Force Grassy conducted surveillance on an industrial property in Hurstville in early 2022. Over roughly three weeks, the two offenders were observed attending the property on ten occasions, spending between two and ten hours there each visit. When police executed a search warrant on 21 March 2022, the entire property had been converted into a cannabis growing operation, partitioned into six rooms containing a total of 742 cannabis plants and extensive hydroponic equipment.
Both offenders were arrested on the roof of the property as they attempted to evade police. Each pleaded guilty in the Local Court and was committed for sentence, entitling each to a 25% discount on their sentence for the utilty of the early plea.
Legal Issues
- What was the appropriate objective seriousness of the offence, and what role did each offender play in the cultivation operation?
- Whether agreed facts could bind the sentencing court as to an offender's role.
- How to achieve parity between two offenders of similar culpability but different ages.
- What weight to give to subjective factors, including personal background, immigration status, offers of assistance to police that were not taken up, and prospects of rehabilitation.
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence.
Decision
His Honour addressed a preliminary procedural concern before turning to the substance of the sentencing exercise. The agreed facts stated, as a matter of agreed fact, that the offenders' role was that of "crop-sitters." King SC DCJ expressed clear disapproval of this approach, explaining that it is always open to parties to make submissions about role, but that characterising role as an agreed fact inappropriately seeks to bind the court's discretion. The court referred to Chow v DPP (1992) 28 NSWLR 593, R v Uzabeaga [2000] NSWCCA 381, and Nguyen v R [2015] NSWCCA 268 to confirm that a sentencing judge is not obliged to accept agreed facts. On the evidence, however, his Honour accepted that neither offender was a principal, financer, or organiser of the operation, and that their role was consistent with crop-sitting.
On objective seriousness, the court noted that the operation was sophisticated and substantial, involving 742 plants, a purpose-built six-room growing facility, and extensive hydroponic infrastructure. The offenders were lending assistance to what was characterised as an organised criminal enterprise, making both general and specific deterrence important considerations.
Turning to subjective matters, the court accepted that both offenders posed a low to medium risk of reoffending, with a low risk being the more appropriate description given their ages and histories. Their Malaysian nationality raised implications under the Migration Act 1958, including the likelihood of visa cancellation and deportation, which his Honour treated as a relevant hardship. Offers of assistance made to police that were not taken up were given limited weight. Despite an approximately eight-year age difference between the two offenders, his Honour found no distinguishing feature sufficient to justify different sentences, and imposed identical terms.
Special circumstances were found to exist, warranting a longer than standard parole period to allow adequate supervised reintegration. Each offender received a total sentence of four years and six months' imprisonment, with a non-parole period of three years commencing from the date of arrest.
Orders Made
- Each offender sentenced to a total term of imprisonment of 4 years and 6 months.
- Non-parole period of 3 years, commencing 21 March 2022, with first eligibility for parole on 20 March 2025.
- Balance of term: 1 year and 6 months.
- Total sentence expires 20 September 2026.
- Special circumstances found, justifying the departure from the standard non-parole period ratio.
Key Takeaways
-
A sentencing court is not bound by agreed facts that purport to characterise an offender's role in the offence. That assessment remains a matter for the judge, informed by submissions, and parties should not attempt to circumscribe judicial discretion by embedding role descriptions in agreed facts.
-
Where two co-offenders share substantially the same role and culpability, parity requires that they receive the same sentence even if other personal characteristics, such as age, differ.
-
The District Court confirmed that an offender's likely deportation and visa cancellation under the Migration Act 1958 constitutes a relevant sentencing consideration, reflecting the additional hardship that imprisonment carries for non-citizen offenders.
-
Offers of assistance to police that are not accepted carry limited weight in mitigation, though they may still be acknowledged as part of the overall subjective picture.
-
Special circumstances justifying a longer parole period may be found where the sentencing court considers that adequate supervision on release is necessary, particularly for offenders facing post-release immigration consequences and limited local support networks.
Legislation and Cases Referenced
Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Migration Act 1958 (Cth)
Cases
- Bugmy v The Queen [2013] HCA 37
- Chow v DPP (1992) 28 NSWLR 593
- Nguyen v R [2015] NSWCCA 268
- R v Tran, Tony [2017] NSWDC 397
- R v Uzabeaga [2000] NSWCCA 381
- Tran v R [2018] NSWCCA 220