Director of Public Prosecutions v Le

[2024] ACTSC 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Le

Citation: 

[2024] ACTSC 31

Hearing Date: 

6 February 2024

Decision Date: 

19 February 2024

Before:

Taylor J

Decision: 

(1)     On the count of being knowingly concerned in cultivating controlled plants (CAN6652/15), the offender is convicted and sentenced to one year and six months of imprisonment, commencing on 13 May 2023 and expiring on 12 November 2024.

(2)     The non-parole period commences on 13 May 2023 and expires on 12 April 2024.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in cultivating controlled plants – cultivation of cannabis – guilty plea – deportation upon release

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT), ss 7, 10

Criminal Code 2002 (ACT), ss 45, 616

Drugs of Dependence Act 1989 (ACT)

Cases Cited: 

Blundell v The Queen [2019] ACTCA 34

Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Beniamini (No 2) [2023] ACTSC 195

DPP v Wright [2023] ACTSC 196

Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462

Hili v The Queen [2010] HCA 45; 242 CLR 520

Imbornone v The Queen [2017] NSWCCA 144

Muldrock v the Queen [2011] HCA 39; 244 CLR 120

Quzag v The Queen (No 4) [2016] ACTCA 27

R v Baxendale [2018] ACTSC 260

R v John [2017] ACTSC 144

R v Can [2019] ACTSC 368

R v John [2017] ACTSC 144

R v Kilic [2016] HCA 48; 259 CLR 256

R v Krizaic [2021] ACTSC 147

R v Laipato [2019] ACTSC 386

R v Li; R v Jin [2014] ACTSC 304

R v Ng [2016] ACTSC 88

R v Nguyen [2018] ACTSC 130

R v Nikro [2015] ACTSC 231

R v Pham (2015) 256 CLR 550

R v Quan; R v Zhang [2014] ACTSC 385

R v Toumo’ua [2017] ACTCA 9

Saipani v The Queen [2021] ACTCA 5

Taylor v The Queen [2014] ACTCA 9

The Queen v Ruwhiu [2023] ACTCA 18

The Queen v Wong [2015] ACTSC 389

Parties: 

Director of Public Prosecutions ( Crown)

Cong Hoang Le ( Offender)

Representation: 

Counsel

C Daly ( DPP)

J Overall ( Offender)

Solicitors

ACT Director of Public Prosecutions

Ren Zhou Lawyers ( Offender)

File Number:

SCC 258 of 2023

TAYLOR J:   

Introduction

1․The offender, Cong Hoang Le, was committed to this Court from the ACT Magistrates Court after entering a plea of guilty on 9 October 2023 to the following offence:

(i)CAN6652/15 – being knowingly concerned in cultivating controlled plants, contrary to s 616(3) of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 45 of the Criminal Code.  The maximum penalty for this offence is 2,500 penalty units, imprisonment for 25 years or both.

Facts

2․The offender arrived in Australia on 24 August 2013 at Sydney International Airport and entered Australia using a Vietnamese Passport issued in his name.

3․At this time, the offender was the holder of a current Australian student visa.  This visa was granted on 20 August 2013 and expired on 30 September 2015.

4․Between January and May 2015, the offender used a fake New South Wales (NSW) driver’s licence in the name ‘Tuan Anh Le’, licence number 13225098, when entering into rental tenancy agreements for the following residential premises across Canberra:

(i)4 Pambula Street, Kaleen, ACT;

(ii)94 Moonlight Avenue, Harrison, ACT;

(iii)21 Belconnen Way, Weetangera, ACT;

(iv)27 Kelleway Avenue, Nicholls, ACT;

(v)28 Rowland Street, Macgregor, ACT; and

(vi)8 Dunlop Street, Hackett, ACT.

5․Enquiries with the NSW Road Transport Authority revealed licence number 13225098 did not correspond with the fake licence provided by the offender when entering into the tenancy agreements.

6․Between 11 and 13 June 2015, police executed a search warrant under the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) at 4 Pambula Street.  During the search, police located and seized an extensive hydroponic cultivation setup and associated crop of 186 cannabis plants, this being a commercial quantity.

7․Police also located correspondence from the Department of Education regarding the offender’s enrolment in a Diploma of Management at the Sydney College of Business and Information Technology with pre-paid tuition fees of $1,500, commencing on 13 April 2015 and finishing on 10 July 2015.

8․Enquiries with the College revealed the offender was enrolled in the course however did not attend the course and was expected to fail the enrolment.

9․On 16 June 2015, police executed a Drugs of Dependence Act search warrant at 94 Moonlight Avenue, where they located and seized an extensive hydroponic cultivation setup and associated crop of 44 cannabis plants, this being a trafficable quantity.

10․There, two people were located and arrested: co-offenders Viet Hong Ngo and Van Cho Hoang.  Both co-offenders were subsequently charged with offences arising out of their involvement and were sentenced in the ACT Magistrates Court. 

11․On 16 June 2015, police executed a Drugs of Dependence Act search warrant at 21 Belconnen Way.  There, they located and seized an extensive hydroponic cultivation setup and associated crop of 392 cannabis plants, this being a commercial quantity.

12․Police also located the fake NSW driver’s licence 13225098, a tenancy agreement with ‘Tuan Anh Le’ listed as the tenant and various documents and personal effects under the names of both the offender and ‘Tuan Anh Le’.  Police enquiries revealed the electricity account for 21 Belconnen Way was registered in the name ‘Tuan Anh Le’.

13․On 17 June 2015, police executed a Drugs of Dependence Act search warrant at 27 Kelleway Avenue, where they located and seized an extensive hydroponic cultivation setup and associated crop of 113 cannabis plants, this being a commercial quantity.

14․Two further people, co-offenders Kam Mei Ng and Pei Yeon Wong, were located and arrested at the premises.  Both of these co-offenders were subsequently charged with offences arising out of their involvement and were sentenced by this Court.

15․Between 17 and 18 of June 2015, police also executed a Drugs of Dependence Act search warrant at 28 Rowland Street, where they located and seized an extensive hydroponic cultivation setup and associated crop of 45 cannabis plants, this being a trafficable quantity.

16․On 8 July 2015, police executed a Drugs of Dependence Act search warrant at 47 Kings Canyon St, Harrison, ACT.  During the search, police located and seized an extensive hydroponic cultivation setup and associated crop of 73 cannabis plants, this being a trafficable quantity.  Police noted that the premises appeared to have been recently abandoned.

17․On 13 July 2015, police executed a Drugs of Dependence Act search warrant at 8 Dunlop Street, where they located and seized an extensive hydroponic cultivation setup and associated crop of 71 cannabis plants, this being a trafficable quantity.

18․A combined total of 940 cannabis plants were seized across the properties.

19․Extensive forensic analysis of the properties was conducted.  Fingerprint and DNA samples were obtained.

20․On 10 July 2015, police made enquiries with Australian Border Force and obtained the digital image that the offender had submitted when applying for his student visa.  Visual comparison of that image with the image depicted on the fake NSW driver’s licence confirmed the offender was the person depicted on that fake licence.

21․On 14 July 2015, a warrant was issued for the offender’s arrest.

22․On 13 January 2022, the offender was arrested, and later convicted, in NSW for similar offences to those he was charged with in the ACT.

23․NSW Police took fingerprints from the offender which have been linked to the following items at houses in the ACT:

(i)rental tenancy agreement for 94 Moonlight Avenue;

(ii)black plastic garbage bag at 27 Kelleway Avenue;

(iii)rental tenancy agreement at 21 Belconnen Way;

(iv)two latex gloves at 28 Rowland Street; and

(v)Sunbeam Foodsaver at 8 Dunlop Street.

24․The offender’s DNA was also taken by NSW Police and linked to the following items at houses in the ACT:

(i)cigarette butt at 21 Belconnen Way;

(ii)inside surface of a glove at 28 Rowland Street;

(iii)cigarette butt at 94 Moonlight Avenue; and

(iv)inside surface of a glove at 47 Kings Canyon Street.

25․On 13 May 2023, the offender was released from custody in NSW and was subsequently arrested by NSW Police for the outstanding warrant within the ACT.

26․The offender was then extradited to the ACT and has since been held on remand at the Alexander Maconochie Centre (the AMC).

Considerations

Nature and circumstances of the offending

27․An assessment of the nature and circumstances of the offending involves consideration of the objective seriousness of the offending.  The maximum penalty “serves as an indicator of the relative seriousness of the offence”: Muldrock v the Queen [2011] HCA 39; 244 CLR 120 at 133, [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at 266, [19]. To give effect to this consideration, I have identified the features of the offending that inform the objective seriousness of the conduct the offender engaged in consistent with R v Toumo’ua [2017] ACTCA 9 and R v Laipato [2019] ACTSC 386.

28․The charge is a “rolled up” charge encompassing multiple instances of the offender’s involvement in the cultivation of a commercial quantity of a controlled plant for sale.  The objective seriousness of the offence is greater than an example of the offence that relies on a single act.  I bear in mind the approach articulated by Refshauge J in R v John [2017] ACTSC 144 at [107].

29․The offender, being complicit in the offending of someone else, is taken to have committed the offence and stands to be punished as if he had committed the offence: s 45(7) Criminal Code. An assessment of the objective seriousness of an offence committed by virtue of s 45 of the Criminal Code requires regard to be had to the principal offence and to the nature and extent of the role of the offender. The prosecution were clear that the offender’s liability in relation to the cultivation of a controlled plant for sale was on the basis that he believed someone else intended to sell any of the plants or their products: s 616(1)(b) Criminal Code. 

30․In R v Krizaic [2021] ACTSC 147, the Court identified factors informing the objective seriousness of a cultivation offence: at [25]. Against the background of those factors, I observe the following in relation to this offence:

(a)the offender participated in a cultivation operation, spanning the course of almost a year, that saw the establishment of cannabis “grow houses” over multiple properties.  His involvement included attending and entering the properties at some point over the offending period;

(b)the cultivation operation was sophisticated, extending to the properties being altered to be fit for purpose.  The management and maintenance of multiple properties required a high level of organisation over a protracted period of time.  The offender was directly involved in the leasing arrangement for six properties and connected to a seventh property by forensic evidence.  Forensic evidence collected and analysed as part of the investigation is indicative of the offender being physically present on occasion in some of the properties.  This demonstrates some involvement on his part beyond the initial use of false identities to secure rental properties;

(c)the offender was motivated by financial gain; and

(d)940 plants were seized across the seven properties included in the offending.  A commercial quantity is between 100 to 999 plants.

31․The success of sophisticated cultivation operations, such as the one in which the offender was concerned, relies on the preparedness of recruits to perform their part regardless of where they sit in the hierarchy of the operation.  The sum of the smaller parts is the capacity for large-scale cultivation.  That said, it was accepted that the offender’s role was not as significant as others identified as part of the investigation, and his role did not include direct involvement in the actual cultivation of the plants.  The factors in this matter result in the offence properly characterised as a serious example of cultivating a controlled plant for sale and the offender’s role properly characterised as an important one in the scheme of the operation.

Subjective circumstances

32․The material before the Court includes a Pre-Sentence Report dated 24 January 2024, in addition to letters written by the offender and his friend, Mr Nguyen, both dated 4 February 2024.

Pre-Sentence Report

33․The offender is now aged 35 years.  Prior to being extradited to the ACT, he was serving a period of incarceration in NSW.  The report records that the offender has received one sanction for declining to perform work tasks to the required standard while on remand at the AMC.  In January 2024, the offender was waitlisted for several Brief Intervention Therapy programs.  However, program staff noted to the author of the Pre-Sentence Report that the offender’s participation may be restricted due to translation services impairing group therapy functioning.

34․The offender was born and raised in Vietnam and is one of two children born to his parents.  He reported a positive childhood to the author of the Pre-Sentence Report, due to the success of his parents’ business.  The offender’s parents still reside in Vietnam and he maintains regular phone contact with them.  The offender was notified by a friend that he has a 13-year-old daughter, however he has never had contact with her, and has not contacted his former partner since her birth.  The offender is currently single.

35․The offender moved to Australia in August 2013 on a student visa.  This visa expired in September 2015.  The offender has not applied for alternate visa following the expiration of his student visa.

36․Prior to being arrested in NSW, the offender reported residing in private shared accommodation in Bankstown.  The offender considered that upon his release he could return to this living arrangement.  The author of the report observed that the offender has not had contact with his former housemates for two years and does not actually know whether he has a current address in the community.

37․The offender told the author of the Pre-Sentence Report that he completed tertiary studies in architecture in Vietnam prior to moving to Australia, where he intended to further his studies.  However, the offender’s literacy skills did not meet the standard required to enable further study.  Aside from the period where he was involved in the cultivation of cannabis, the offender was paid in cash for handyman and house painting roles.  The offender expressed confidence to the author that he could return to these roles.  The author suggested in their report that the offender did not understand the illegal nature of him entering into employment in Australia.

38․The offender advised the author of the Pre-Sentence Report that he has no debts and managed his finances well, despite routinely gambling on poker machines.  The offender described his former colleagues and housemates as pro-social, noting he was introduced to the cannabis industry through associates he met whilst gambling.  The offender reported that he has not had contact with these associates for at least three years.

39․The offender commenced alcohol consumption at the age of 17, reporting to the author that he consumed up to one carton of beer three to four times a week.  He has not sought treatment in the community regarding his alcohol consumption.  The offender commenced smoking cannabis at the age of 26 and reported regular consumption of minimal amounts since this time.  The offender expressed an intent to remain abstinent from substances in the future.  He noted to the author that his ability to access programs in NSW was impacted by suspension of programmes due to Covid-19 restrictions and his reliance on the use of verbal translation or translated written materials.

40․The offender reported positive mental health, with the exception of a period of two and a half months he spent confined to his cell during his term of imprisonment in NSW due to Covid-19 restrictions.  The offender explained that this time contributed to him now having a heightened state of awareness of his surroundings.  The offender reported being in good general health, noting that since entering custody he has commenced treatment for high cholesterol and diabetes.

41․Due to the offender’s immigration status, having overstayed the nominated period of his entry visa, the offender has no recourse to public funds.  As such, the offender has limited financial resources and would have difficulty paying a fine.

42․While the author of the report did not express a definitive position in relation to the offender’s risk of reoffending, they did consider it in the context of ACT Corrective Services’ role as part of a Good Behaviour Order, finding that the offender required a low level of intervention.  The offender was found unsuitable for a community service work condition. 

Letter from Mr Nguyen

43․Mr Nguyen, a friend of the offender, expressed his support for the offender through a letter to the Court.  He noted he is aware of the offender’s sentence in NSW and offered his home to the offender upon his release from custody in the ACT, as well as any further support the offender may require.

Remorse and rehabilitation

44․In his own letter to the Court, written with the assistance of his counsel and a translator, the offender expressed an apology for the crime he committed.  He detailed his experience of being incarcerated in NSW, including that he faced various periods of isolation due to Covid-19 and upon his transfer to the ACT.

45․The offender wrote that, since his incarceration, he has “had time to think about [his] mistakes”.  The offender said he made “stupid decisions because [he] got desperate for money to live on”.  The offender described being offered money to assist other people find places to grow cannabis and that he now understands he should have refused this offer.

46․The offender said that he “will always stay away from drugs and advise others to do the same”.  He detailed seeing “the harmful effects of drugs on drug addicts” in prison.  The offender wrote of the impact the offending has had on his relationship with his family, explaining that they are “disappointed in [him]”.  The offender has apologised to his family and wishes to return to Vietnam after he completes his sentence to “repair the damage [he] caused”.

47․The prosecutor correctly highlighted the inconsistency in the position the offender offered to the author of the report, indicating an intention to remain in Australia, and his letter to the Court, suggesting an intention to return to Vietnam.  Counsel for the offender explained the inconsistency as arising from a misapprehension on the offender’s part about his capacity to remain in Australia.  Counsel explained that the offender now accepts, with the benefit of comprehensive advice, that he will not be able to remain in Australia and further that he has accepted that his future, subsequent to his release from prison, is in Vietnam. 

48․The claims contained in the letter from the offender are untested.  That said, the prosecutor informed the Court that the offender was not required for cross-examination.  I heed the caution expressed in R v Baxendale [2018] ACTSC 260 and Imbornone v The Queen [2017] NSWCCA 144 in relation to untested declarations made by offenders. Notwithstanding the need for caution, I am satisfied, taking into account the contents of the Pre-Sentence Report, his early acceptance of responsibility and the contents of the letter before me, that the offender has expressed some genuine remorse in relation to his offending.

49․The offender’s prospects of rehabilitation are difficult to assess.  He has a tertiary qualification obtained in Vietnam demonstrative of intellectual capacity and aspiration.  There is no suggestion in any of the material that he is challenged in relation to drug and alcohol use or mental health instability.  He has no prospect either of employment in Australia or accessing support services that might assist him while in the Australian community.  Indeed, on the basis of the offender’s immigration status as it has been presented in these proceedings, there is no real prospect of the offender spending any further time of any significance in the Australian community.  The reality for the offender is that any rehabilitative prospects he might have will be realised in Vietnam.  Unlike the offender in The Queen v Ruwhiu [2023] ACTCA 18, there was no submission advanced that the idea of deportation has been weighing heavily on the offender during his imprisonment: at [151]. Indeed, he appears to have accepted his fate in this regard. That is not to say rehabilitation is not a factor in this case. Rather, it is to recognise the reality of the offender’s circumstances and the influence of the prospect of supervision while in the community on the sentence to be imposed, including any non-parole period.

Criminal history

50․The offender does have a criminal history arising from offending in NSW.  It is clear though that at the time of the offending before this Court that the offender had no criminal history within the ACT or elsewhere in Australia and I have approached the sentencing task on that basis. 

Time in custody

51․The offender was arrested in NSW on 13 May 2023.  The offender has been on remand at the AMC solely in relation to this charge since this date.

Guilty plea

52․The offender entered a plea of guilty in the Magistrates Court and it was accepted that this is an early acceptance of responsibility.  Consistent with Blundell v The Queen [2019] ACTCA 34, I apply of discount of 25 per cent in recognition of the high utilitarian value of the early plea of guilty.

Parity

53․There being co-offenders for this matter, I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at 472, [28].

54․In Saipani v The Queen [2021] ACTCA 5 at [56], the Court of Appeal articulated the principle in this way:

The “parity principle” is a manifestation of the fundamental principle of equality before the law.  As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As
his Honour observed, however, other things are not always equal.  There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them.  The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.

55․Co-offender Bui Coi Nguyen was sentenced for one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code.  He was found to have used a false driver’s licence to visit properties and sign rental agreement forms.  Significantly, in contrast to this offender, he was also found to have been directly involved in the cultivation exercise, “although more as a paid follower, than as a leader”: R v Nguyen [2018] ACTSC 130 (Nguyen) at [13]. The sentencing judge observed that while co-offender Nguyen was “only a cog in the operation, he was nevertheless an important and active participant”, leading to a finding of his offending being of medium objective severity: see Nguyen at [17]. He did not have a criminal history. Co-offender Nguyen was sentenced to two years of imprisonment with a non-parole period of 18 months. The prosecution submitted co-offender Nguyen is the most useful comparison to the offender in terms of the role played, though accepted his role was more involved than the offender before the Court.

56․Co-offender Ngo pled guilty to one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code.  Co-offender Ngo was sentenced in the Magistrates Court to 10 months of imprisonment, suspended immediately upon entry into a 2-year Good Behaviour Order.

57․Co-offender Hoang pled guilty to one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code.  Co-offender Hoang was sentenced in the Magistrates Court to 10 months of imprisonment, suspended immediately upon entry into a 2-year Good Behaviour Order.

58․Co-offender Ng pled guilty to one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code.  She did not have a criminal history prior to this offence.  Co-offender Ng was sentenced to 12 months of imprisonment.  The final seven weeks of her sentence were suspended upon entry into a six-month Good Behaviour Order: see R v Ng [2016] ACTSC 88.

59․Co-offender Wong pled guilty to one count of cultivating a commercial quantity of a controlled plant, contrary to s 616(3) of the Criminal Code.  She did not have a criminal history prior to this offence.  Co-offender Wong was sentenced to 11 months of imprisonment, suspended after serving six months, upon entry into a 12-month Good Behaviour Order: see The Queen v Wong [2015] ACTSC 389.

Delay

60․The prosecution accepted that the proceedings have been attended to by some delay.  The offending occurred in 2015.  The prosecution pointed to the extent and complexity of the investigation as some explanation and the offender’s NSW offending in the intervening period as relevant factors to consider.  A review of the Magistrates Court bench sheet reveals the charge was first before that Court on 14 July 2015 when a warrant was issued for the offender.  The warrant was executed in May 2023 upon the offender’s release from custody in NSW.  In the circumstances I do not consider the delay to have been unwarranted or inordinate. 

Sentencing practice

61․Sentencing judges should approach the use of comparable sentences and sentencing statistics mindful of the limitations of their utility.  No sentence is a precedent.  The instinctive synthesis that attends to the sentencing task must give effect to individualised justice.  Comparable sentences and sentencing statistics illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560, [29]. The illustrated range does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445, [51]-[53]. The provision of comparative cases is an effort to promote and ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520. I was provided with sentencing outcomes from this Court by the prosecution relating to the cultivation of cannabis: DPP v Beniamini (No 2) [2023] ACTSC 195; DPP v Wright [2023] ACTSC 196; Quzag v The Queen (No 4) [2016] ACTCA 27; R v Can [2019] ACTSC 368; R v Li; R v Jin [2014] ACTSC 304; R v Nikro [2015] ACTSC 231; and R v Quan; R v Zhang [2014] ACTSC 385.

R v Can [2019] ACTSC 368

62․The offender pled guilty to one count of cultivating a commercial quantity of a controlled plant, namely cannabis. Police found 259 plants at premises the offender owned. Sophisticated lighting, irrigation, climate control and exhaust systems were set up to aid cultivation and harvesting of the plants. Bags of fertiliser were stacked up against the internal walls of the premises and cannabis offcuts were bundled in garbage bags. The sentencing judge was “satisfied that this was a very sophisticated operation”: at [4]. The offender was addicted to gambling with subsequent debt of $100,000, and claimed he was forced to grow cannabis by those to whom he owed money. The offender was born in Vietnam and moved to Australia to study English. The offender expressed regret in a letter to the Court. The sentencing judge accepted that the offender was “genuinely sorry for having committed this offence” and that it was unlikely that the offender would reoffend: at [15]. The offender was sentenced to two years and three months of imprisonment with a non-parole period of 15 months.

R v Li; R v Jin [2014] ACTSC 304

63․The co-offenders, Mr Li and Ms Jin, were involved in the cultivation of a commercial quantity of a controlled plant with the intent to be sold; Mr Li was sentenced for the principal offence and Ms Jin was sentenced for aiding and abetting the offence committed by Mr Li. They both entered pleas of guilty at the very earliest opportunity. Mr Li rented a house which was used to grow 371 cannabis plants. Police also located plastic bags containing dried cannabis and a substantial amount of Australian currency. Ms Jin’s role was minimal and assessed at the lowest end of objective seriousness. Mr Li was assessed as playing a substantial ongoing role in the operation and was the primary tenant and occupant of the premises. Both were illegal immigrants. Mr Li had significant medical issues including a tumour and was “undoubtedly at the end of his life”; Murrell CJ considered that the Court should structure the sentence so he could be released “very soon”: at [22]. He was sentenced to 3 years and 6 months of imprisonment, reduced for his plea of guilty to 2 years and 7 months of imprisonment, backdated to account for time served. The sentence was immediately suspended upon the offender entering a Good Behaviour Order for a term equivalent to the remainder of the sentence. Ms Li was sentenced to imprisonment for the period she had already been in custody (being just over five months) and released immediately.

R v Nikro [2015] ACTSC 231

64․The offender entered a plea of guilty to aiding and abetting the cultivation of a commercial quantity of a controlled plant, namely cannabis.  The offender was later found guilty at trial of cultivating a trafficable quantity of a controlled plant, namely cannabis.  The offender and a co-offender maintained cannabis crops in two grow houses, with 105 and 97 plants in each house, respectively.  Each house had been fitted with extensive equipment, including heat lamps, irrigation equipment, digital thermometers and air extraction filters.  The sentencing judge found little reason to distinguish between the contributions of the offender and his co-offender.  The offender’s criminal history included an offence for cultivating a trafficable quantity of cannabis for sale.  The offender was assessed as being at a medium to high risk of reoffending due to his history of illicit substance use and limited support, as his family resided in Lebanon.  The offender was sentenced to 15 months of imprisonment for cultivating a commercial quantity of cannabis and 15 months of imprisonment for cultivating a trafficable amount of cannabis.  The total sentence imposed was four years and nine months of imprisonment with a non-parole period of two years and six months.

R v Quan; R v Zhang [2014] ACTSC 385

65․Each of the co-offenders entered a plea of guilty to one count of cultivating a commercial quantity of a controlled plant, being cannabis. Police executed a search warrant at a residential property. Four makeshift rooms were hidden behind a false wall under the main level of the premises, revealing a sophisticated hydroponic set up. Equipment included heat lights, exhaust fans and hosing. Police located 214 plants and a further 186 seedlings, in addition to root balls, bagged cannabis, and loose cannabis ready for sale. Chief Justice Murrell thought it “clear that Mr Quan and Ms Zhang were not the masterminds of the cannabis cultivation operation in which they were involved”: at [7]. Her Honour found the accused to have been “isolated by their language and culture and vulnerable to exploitation because they had overstayed their visas”, with no evidence that either offender “was to make any profit from the enterprise”: at [10]. Ms Zhang, in particular, “had little direct involvement with the plants… she did not play a significant role and the objective seriousness of her offending conduct [was] very much at the lower end”: at [8]. Mr Quan was sentenced to a term of imprisonment of two years and three months, with a non-parole period of 14 months. Ms Zhang was sentenced to a fixed term imprisonment that totalled eight months and 16 days of imprisonment.

Determination

66․The purposes of sentencing are outlined at s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act). The purposes of sentencing of particular significance in this matter are punishment, general deterrence, accountability and denunciation. Involvement of any kind in operations intended to produce significant quantities of a controlled plant must be condemned. I have taken into account all of the relevant factors, including the objective seriousness of the offending and the circumstances of the offender, and I am of the view that the only appropriate outcome, having regard to possible alternatives, is a period of imprisonment: s 10 Crimes (Sentencing) Act.  A lesser penalty would fail to give proper effect to the purposes of sentencing. 

67․The offender did not seek assessment for an Intensive Correction Order, nor the consideration of a period of suspended imprisonment.  This seems to me to reflect the practical realities of his circumstances in particular the uncertainty of accommodation in the community for the offender and perhaps most significant what appears to be his inevitable return to Vietnam upon release from custody.  In any event, I do not consider that either of these alternatives to a period of full-time imprisonment would be appropriate in this instance.  The offender played an important role in the commission of a serious offence over a lengthy period.  As I have already observed, without the willingness of recruits like the offender to play their part, cultivation of the scale apparent in this matter, would not be possible.  In all the circumstances of this matter, it is appropriate that any period of imprisonment be imposed full-time. 

68․The starting point for the offence is 24 months of imprisonment, reduced to one year and six months in recognition of his early plea of guilty. 

69․The proper approach to determining a non-parole period in this jurisdiction was helpfully summarised by this Court in Taylor v The Queen [2014] ACTCA 9 at [19]. I have had regard to that guidance and consider that non-parole period of around 60 per cent is appropriate in all of the circumstances.

Orders

70․For those reasons I make the following orders:

(1)On the count of being knowingly concerned in cultivating controlled plants (CAN6652/15), the offender is convicted and sentenced to one year and six months of imprisonment, commencing on 13 May 2023 and expiring on 12 November 2024.

(2)The non-parole period commences on 13 May 2023 and expires on 12 April 2024.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor

Associate:

Date: 19 February 2023