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District Court 8 November 2024

R v Vu

[2024] NSWDC 655

Drugs
CRIMIN AL SENTENCE AFTER JUDGE ALONE TRIAL LARGE COMMERCIAL QUANTITY ROLE OF OFFENDER

Citation: R v Vu [2024] NSWDC 655
Court: District Court of New South Wales
Date: 8 November 2024
Judge: King SC DCJ

Background

The offender, a man aged approximately 26 at the time of sentencing, was convicted after a judge-alone trial of knowingly taking part in the cultivation of not less than 1,000 cannabis plants, being a large commercial quantity, contrary to s 23(2)(a) of the Drugs Misuse and Trafficking Act 1985. The cultivation occurred between February and September 2021 at a rural property at Turners Flat, NSW. The operation involved 15 large grow houses or tents containing 3,291 growing plants, with significant capacity for further expansion.

The offender's precise role could not be determined from the evidence. His presence at the property was established largely through forensic evidence, including DNA recovered from pillows, earbuds, and a plate, suggesting he had been present at least towards the end of the charged period. No direct identification evidence placed him at the premises at any particular time.

The offender was already serving a separate sentence at the time he was arrested for this offence. In May 2023, the Parramatta District Court had sentenced him to two years and six months' imprisonment for a distinct but related commercial cannabis cultivation offence committed in May 2022 at Rosehill. The sentencing judge was therefore required to address issues of accumulation and totality.

  • What was the appropriate sentence for a large commercial quantity cannabis cultivation offence following a defended trial, where the offender's specific role was unclear?
  • How should the court treat evidence of remorse and contrition expressed after a not-guilty plea and conviction at trial?
  • How did totality and accumulation principles apply in light of the existing sentence being served?
  • Whether special circumstances existed to justify departing from the standard statutory relationship between the non-parole period and the balance of term.

Decision

The court assessed the objective seriousness of the offending as significant. The operation at Turners Flat was large in scale, involving 3,291 plants distributed across multiple oversized grow tents fitted with artificial lighting and irrigation, with clear capacity to expand further. The maximum penalty for the offence is 20 years' imprisonment, and the standard non-parole period is 10 years. Although the offender's specific role could not be identified on the evidence, his participation in an operation of this magnitude was treated as serious.

On remorse and contrition, the court accepted that, despite the matter proceeding to trial, the offender had demonstrated genuine reflection. The Sentencing Assessment Report noted he had accepted full responsibility and acknowledged the impact of his offending on others. While the court expressed some scepticism about psychological reports commissioned on behalf of offenders, it accepted that the Sentencing Assessment Report provided independent corroboration of the same themes. The offender's young age and reasonable prospects for rehabilitation were also taken into account.

The court found special circumstances warranting a reduction in the statutory ratio between the non-parole period and the balance of term, setting the non-parole period at 50 per cent of the total sentence. This reflected the offender's age and the need to support rehabilitation. Applying totality principles, the court partially backdated the sentence to run concurrently with part of the existing non-parole period, rather than ordering it to commence at the expiry of the prior sentence.

The court also noted that the offender held an expired visa and deportation was a likely consequence of his imprisonment, though the judge was required to sentence without regard to Border Force interests or immigration outcomes.

Orders Made

  • Total sentence of four years' imprisonment for the offence under s 23(2)(a) of the Drugs Misuse and Trafficking Act 1985.
  • Non-parole period of two years commencing 29 July 2023, with first eligibility for parole on 28 July 2025.
  • Additional term of two years, with the full sentence expiring 28 July 2027.
  • Non-parole period set at 50 per cent of the total term on account of special circumstances.

Key Takeaways

  • A large commercial cannabis cultivation operation spanning 3,291 plants across multiple industrial-scale grow tents attracted a four-year sentence, notwithstanding that the offender's specific role could not be established on the evidence.
  • Genuine remorse expressed after a defended trial can still be accepted as a mitigating factor, particularly where it is independently corroborated by a Sentencing Assessment Report rather than relying solely on a psychology report commissioned for the offender.
  • Under the totality principle, a sentence imposed on an offender already serving a related term can be partially backdated into the existing non-parole period to reflect the overall criminality without disproportionate punishment.
  • Special circumstances justifying a reduction in the statutory non-parole period ratio were established on the basis of the offender's young age and reasonable prospects for rehabilitation.
  • The District Court confirmed that the likely deportation of an offender at the end of his sentence is not a matter that affects the sentencing exercise, as the court is required to disregard immigration enforcement interests.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 23(2)(a): offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants; maximum penalty 20 years' imprisonment and/or a 5,000 penalty unit fine; standard non-parole period of 10 years.

Cases cited: No cases were cited in the judgment text provided.