Citation: R v CHEN [2023] NSWDC 554
Court: District Court of NSW
Date: 8 December 2023
Judge: Noman SC DCJ
Background
The offender, a 58-year-old man with a lengthy criminal history in Australia dating back to 1987, appeared for sentencing on a charge of knowingly taking part in the cultivation of prohibited plants, contrary to s.23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending occurred at his home in Belfield and involved the cultivation of cannabis plants as part of a broader scheme involving an organised crime group.
The offender was one of three participants in the cultivation, working alongside two co-offenders under the direction of a group leader. The plan was to grow cannabis plants at the Belfield property before transferring them to an island in which the offender held a financial interest, where the larger-scale cultivation would continue. Police executed a search warrant on 25 January 2022 and seized 228 cannabis plants.
A further offence of participating in a criminal group under s.93T(1) of the Crimes Act 1900 (NSW) was listed on a Form 1 document and taken into account in sentencing.
Legal Issues
- What was the appropriate objective seriousness of the cultivation offence, including the relevance of organised crime involvement?
- Whether the offender's breach of conditional liberty (being on bail at the time of offending) constituted an aggravating factor
- Whether genuine remorse had been established on the balance of probabilities
- What weight to afford the offender's prospects of rehabilitation
- Whether a non-custodial penalty, such as an Intensive Correction Order, was available and appropriate
- Whether special circumstances existed to justify a variation in the statutory ratio between head sentence and non-parole period
Decision
Objective seriousness: The court assessed the offending as falling within the mid-level of seriousness (at [18]). Key features included coordinated planning among three participants, multiple purchases of cultivation chemicals evidenced by receipts and CCTV, electricity bypassing indicating some sophistication, and the seizure of 228 plants, close to the commercial quantity threshold of 250 (at [15]). The offender had a financial stake in the proposed island cultivation and stood to receive 10% of the final yield (at [16]).
Aggravating factors: The offender was on bail at the time of offending, having been arrested in September 2021 on charges including dealing with proceeds of crime. The court treated this breach of conditional liberty as an aggravating factor reflecting an abuse of the freedom granted by further offending (at [21]). His extensive criminal history, including prior drug offences, disentitled him to leniency (at [22]-[23]).
Remorse and rehabilitation: The court declined to find genuine remorse on the balance of probabilities (at [29]). The offender's expressions of contrition to his psychologist, employer, and aunt were given limited weight. Critically, the court found the offender had sought to minimise his participation by understating his role to report authors and his psychologist, and this was inconsistent with the agreed facts (at [29]-[30]). The psychologist also recorded that the offender appeared oblivious to any legal duty to comply with the law and regarded his conduct as minor and not harmful (at [26]). The court assessed the prospects of rehabilitation and not reoffending as poor, with personal deterrence remaining an important sentencing consideration (at [30]).
Penalty: Having considered all alternatives, the court was satisfied that no penalty other than full-time imprisonment was appropriate (at [34]). The length of the sentence precluded an Intensive Correction Order. The court declined to make a finding of special circumstances (at [35]). After applying the 25% guilty plea discount and taking the Form 1 offence into account, the sentence was 2 years and 2 months imprisonment with a non-parole period of 1 year and 7 months (at [37]).
Orders Made
- The offender was convicted.
- Sentenced to 2 years and 2 months imprisonment, with a non-parole period of 1 year and 7 months, commencing 8 December 2023.
- The offender is to be released on parole on 7 July 2025.
Key Takeaways
- A breach of conditional liberty, such as committing offences while on bail, constitutes an aggravating factor in sentencing as it reflects an abuse of the freedom granted by the court (at [21]).
- Expressions of remorse communicated through letters and to report authors will not satisfy the balance of probabilities standard where the offender simultaneously minimises participation in ways inconsistent with agreed facts (at [29]).
- Where an offender appears oblivious to any legal duty to comply with the law and exhibits limited insight into the impact of offending, the sentencing court may characterise prospects of rehabilitation as poor and emphasise personal deterrence (at [30]).
- Under s.23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), involvement in cultivation as part of an organised group, combined with financial motivation, planning, and a plant count approaching the commercial quantity threshold, will place the offending at least at the mid-level of objective seriousness (at [15], [18]).
- An extensive criminal history spanning decades, including prior drug and dishonesty offences, will operate to disentitle an offender to leniency at the sentencing stage (at [22]-[23]).
Legislation and Cases Referenced
Legislation
- s.23(1)(a) Drug Misuse and Trafficking Act 1985 (NSW)
- s.93T(1) Crimes Act 1900 (NSW)
Cases
- Not stated