R v Bui, R v Bui, R v Nguyen

[2019] NSWDC 398

District Court

New South Wales

Medium Neutral Citation:	R v Bui, R v Bui, R v Nguyen [2019] NSWDC 398
Hearing dates:	21 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [38] to [41]
Catchwords:	CRIME — Drug offences — Cultivate prohibited plant — enhanced indoor means
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Tien Duc Bui Quan Trung Bui Minh Khiem Nguyen
Representation:	Counsel: J Peluso (Mr Bui, Mr Bui, Mr Nguyen)     Solicitors: P Cramer (Crown)
File Number(s):	2018/00235436, 2018/00235435, 2018/00288644, 2018/00235457, 2018/00288476

SENTENCE

1. HIS HONOUR: Each of the three offenders, Mr Quan Trung Bui, Mr Tien Duc Bui, Mr Minh Nguyen pleaded guilty in the Local Court and adhered to their pleas before me to an offence that on 31 July 2018 in South Penrith they cultivated by enhanced indoor means a prohibited plant; namely, cannabis sativa, being not less than the commercial quantity, namely, 142 plants. That is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act and has a maximum penalty of 15 years imprisonment and there is no applicable standard non‑parole period.  Each of the offenders have, on a form 1, a further offence of use electricity without authority which relates to that particular cultivation and they ask that I take that offence into account when sentencing on the cultivation offence to which they have pleaded guilty.

2. The offenders, Mr Quan Trung Bui and Mr Minh Nguyen, also have on a form 1 another cultivation of a commercial quantity of cannabis plants offence for which they have acknowledged guilt and they ask that I take that into account when sentencing them on the primary cultivate commercial quantity offence.  The facts for those form 1 offences are before me.

3. A significant distinguishing feature in this sentence between Mr Quan Trung Bui and Mr Nguyen in contrast to Mr Tien Duc Bui, is Mr Tien Duc Bui does not have the cultivate commercial quantity on the form 1 and that offence is a significant offence to have on a form 1 and must have an impact upon the sentence to be imposed on the two offenders who do have that matter on the form 1.

Facts of the offending

4. The facts in relation to the primary count that the three offenders are to be sentence for are agreed and they are as follows.

5. In June 2018, police commenced an investigation into the suspected cultivation of cannabis by enhanced indoor means at premises in South Penrith.  The property is an industrial unit with a rear central door.

6. On 30 July last year, a surveillance camera was installed in a public place near the rear door of the premises.  At approximately 8.51am, on 31 July last year, Tien Duc Bui and Quan Trung Bui were observed entering the premises.  That was captured by the surveillance device which the police had installed.  A short time later, the police commenced physical surveillance in the area.  A white Holden Cruze was observed to be parked outside the entry door to the premises and at that point police were aware that four males had entered the premises after arriving in that vehicle.

7. At approximately 10.40am a search warrant was granted and at 11.15am, police gained entry to the premises.  The offenders were arrested and cautioned.  Tien Duc Bui indicated he spoke limited English.  At the time of the arrest, all three offenders were wearing gloves.  They were taken to Penrith Police Station.  They obtained some legal advice and they declined to participate in a record of interview.  Forensic procedures were consented to and carried out.  The police searched the premises.  The search revealed four rooms which were used for various parts of the cultivation process.  Room 1 contained 142 cannabis plants and light shades with bulbs attached.  Room 2 contained shades and bulbs with grow pots arranged in rows with attached irrigation piping.  Room 3 contained 113 cannabis plants and light shades with bulbs attached.  Room 4 contained ventilation tubes and the room had been blacked out.  There were power tools in the centre of the room and it appeared as though work had been carried out.

8. There was an upstairs hallway which also contained transformers and light shades.  The property was designed so that entry into the remainder of the premises required persons to walk through room 1. Room 3 contained a number of smaller plants.  A fluorescent high‑vis jacket was located in room 3.  The jacket contained a white Apple iPhone and a wallet containing $1,350 in Australian currency and it contained the personal identification of Tien Duc Bui.

9. Overall, there were 255 plants inside the premises.  However, it is accepted by the Crown that the offenders were only aware of the 142 plants in room 1 and that there is no evidence to suggest that any of them were aware of the additional plants in room 3.  That is no doubt why the Crown accepted the pleas of guilty to the offence to which they have pleaded.

10. A representative from Endeavour Energy confirmed that an illegal electronic bypass had been constructed in the premises.  There was no forensic evidence obtained which linked either of the three offenders to the cultivation.

11. Turning then to my assessment of the objective seriousness of the offence.  The number of plants is always a relevant factor in assessing objective seriousness but it is not determinative.  Here, while there were 255 plants in the premises, given the Crown's concession about knowledge of the number of plants being limited to 142, I think that is the appropriate number of plants by which I should assess the objective seriousness of each of the offenders' offence.  That is a little under three times the minimum quantity in order to engage the commercial quantity, but is still well below the large commercial quantity.

12. The Crown in its submissions accepts that the role of each of the offenders was that of what is sometimes called a “crop‑sitter”, someone engaged to ensure the success of the cultivation.  Without crop‑sitters these types of cultivation simply would fail, however.

13. The Crown, in its submissions, accepted that there was no evidence that any of the offenders was involved in the setup of the cultivation.  Mr Minh Nguyen did give some evidence, however, that he helped with the delivery of things to the premises which he described as "electrical things".  That really was not fully explored in the evidence.  He also said that he helped with the cleaning of the property and was to receive $400.  Even having regard to Mr Nguyen's evidence about his own involvement, and he did go on to say that he did not know how to grow the cannabis, each offenders’ offending is towards the lower end of objective seriousness.  There can be little doubt, on all the material before me, that they engaged in the offence for financial gain.

14. As is frequently the case, it is difficult to be certain as to what level of financial gain was obtained, noting what Mr Nguyen says he got out of the offence.  But I do not consider the fact they engaged in the offence of financial gain as an aggravating factor because it is fairly inherent, in my view, in the cultivation of a commercial quantity that people involve themselves in it in the expectation that they will receive some type of financial gain.  There is nothing here which would allow me to find that any of the offenders had an expectation that they would receive any part of any sale proceeds of the plants.  Indeed, there is no evidence before me as to their value.  I would assess the objective seriousness of each offenders' role as towards the lower end of the scale of objective seriousness but noting what I said before, crop‑sitters are an essential part of these types of cultivations.

15. I mentioned earlier that two of the offenders have on the form 1 another cultivate not less than the commercial quantity of cannabis plants offence.  That cultivation involved 85 mature and juvenile cannabis plants throughout a property in Kirrawee.  There are some photographs before me that the police took of that property showing a reasonably sophisticated cultivation setup inside the premises.  The facts indicate that there was quite a bit of subterfuge involved in the leasing of those premises but I could not find that any of the offenders who have that matter on the form 1 were involved in the subterfuge.  There is DNA evidence and fingerprint evidence linking the two offenders concerned with those premises.

Mr Tien Duc Bui’s subjective case

16. I turn then to the offenders' subjective cases and I will deal with Mr Tien Duc Bui's subjective case first.  He is currently 29 years of age.  He has no criminal record which entitles him to some leniency here.  There is no suggestion that the lack of a criminal record, in some way, facilitated the commission of this particular offence.  He has been in this country some considerable time.  I do not think the evidence allows me to say how long.  His wife gave evidence that she met him about five years ago in Melbourne and she has given evidence that he is an Australian citizen.

17. There is a sentence assessment report in relation to Tien Duc Bui.  He has not incurred any institutional misconduct charges since he has been custody.  He had previously been living with his wife and she has given evidence today of the nature of their relationship and she clearly stands by him despite what has occurred.  She confirmed the content of the sentence assessment report which records that at the time of the offence he was employed as a delivery driver and his wife confirmed that there is employment available to him upon his release from custody.  He accepted that he chose to engage in the offence for financial gain saying that he needed money to finance having a child and to cover other expenses.  He was assessed in the sentence assessment report as having a low risk of re‑offending.  I think there is some evidence of remorse given his early plea of guilty and having heard from his wife.  The plea of guilty, as I say, was early, so I will allow him a 25% discount of his sentence for the utilitarian value of his plea.

18. I consider that he has good prospects of rehabilitation.  He has no prior criminal record.  He has a wife who supports him in the community. He has a history of employment and he is assessed in the sentence assessment report as having a low risk of re‑offending.

Mr Quan Trung Bui’s subjective case

19. Dealing then with the subjective case of Quan Trung Bui.  He is currently 33 years of age.  No criminal history is recorded in relation to him.  I do not think I have any material which tells me how long he has been in the country for but it is accepted he is not an Australian citizen and he is likely to be deported upon his release from custody.  He too has been fully compliant with the prison regime while he has been in custody.  He seems somewhat isolated as he has limited family support.  He apparently worked in a barber shop prior to his incarceration.  He told the author of the sentence assessment report that the offences were opportunistic and influenced by an associate who gave the incentive as being one of making a financial gain.  He said he was desperate at the time and there were no other options and of course no doubt, for people who are in the country illegally, it is difficult to engage in lawful employment; the opportunity for employment is no doubt quite restricted given the requirements of a tax file number and matters of that type.

20. The sentence assessment report does record him appearing to be saddened and embarrassed by his actions and that he was apologetic to the wider community and I accept that he has some remorse and perhaps some insight into how serious his offending was.  I think he has reasonable prospects of rehabilitation and his plea of guilty was early so I will allow him, as well, a 25% discount of his sentence.

Mr Minh Nguyen’s subjective case

21. In relation to Mr Minh Nguyen, his date of birth is 5 November 1987 so he is 32.  He gave evidence today which I have referred to earlier, there having been some issue with there not being able to be a sentence assessment report prepared.  He gave evidence, which was not challenged, that he came to Australia five years ago on a student visa, and has overstayed.  He has no criminal record apart from the current matter which, seems to me, justifies extending some leniency to him.  He, like the other two offenders, has very limited English which no doubt makes his time in custody more difficult.  He gave some frank evidence, as one would expect, that because of his status in the community prior to being arrested, he did some cash‑in‑hand labouring type of jobs and no doubt that is the sort of payment, as he said in his evidence, he received in relation to his involvement in this offence.

22. He gave evidence that he was involved in the offending because of his and his family's indebtedness.  I mentioned the evidence he gave earlier about his role and how much money he says he received.  He expressed some remorse in the witness box.  He too will receive a 25% discount for the utilitarian value of his plea and I think he has reasonable prospects of rehabilitation noting though that he faces deportation upon his eventual release from custody.  Although, as the cases make clear, that is not to impact upon the setting of the non‑parole period.

Determination

23. I will backdate all the sentences to the date that the offenders went into custody.

24. In relation to Mr Tien Duc Bui, I am going to make a finding of special circumstances.  I do so for these reasons; Mr Peluso, of counsel, urged on me that I should now impose an intensive correction order upon Tien Duc Bui.  Mr Bui has served almost what I consider to be an appropriate non‑parole period bearing in mind he is the offender who does not have the other cultivation matter on his form 1.  In the circumstances where he has served almost what I consider to be an appropriate non‑parole period, and it will be shortly seen that I consider it to be slightly less than I indicated during the course of submissions, I do not consider it would be an appropriate exercise of my sentencing discretion to impose a sentence now by way of an intensive corrections order.  It will be seen that I have made a finding of special circumstances.  Perhaps somewhat unusually, part of the reason for making that finding is that if he had come up for sentence earlier, I would have perhaps been more inclined to impose an intensive correction order coupled with the fact it is his first time in custody, he has nothing on his record and I have found he has good prospects of rehabilitation.

25. In relation to all of the offenders, I will backdate the sentences to the date that they were arrested and went into custody. I have had regard to the objects of sentence referred to in s 3A of the Crimes (Sentencing Procedure) Act.

26. I think it is important to record here that this week I will have sentenced six people for this type of offence.  That is indicative of how prevalent this offence is in the community and therefore general deterrence dictates that significant sentences should be imposed.  There seems to be a view in the community that cultivation of cannabis is no longer a crime.  That view is completely misguided and those who involve themselves in this type of growing of cannabis commit very serious offending.  The only appropriate sentence is one of imprisonment.

27. In relation to the other two offenders, the issue of an ICO was not pressed on me and for obvious reasons; which given the presence of the form 1 matter, and also their immigration status would make it pointless to impose such an order.  I have had regard to the maximum penalty as a legislative guidepost.

28. Mr Tien Duc Bui, you are convicted of the offence to which you have pleaded guilty of cultivating not less than the commercial quantity of cannabis.

29. You are sentenced to a term of imprisonment consisting of a non‑parole period of 11 months and a balance of term of seven months.  That is a total sentence of 18 months' imprisonment.  It is to date from 31 July 2018.  The sentence will expire on 30 January 2020.  The non‑parole period expires on 30 June this year.

30. I expect that you will be released to parole on 30 June this year in about nine days' time.  Whether you are in fact released to parole on that date remains a matter for the State Parole Authority who will no doubt take account of your behaviour in gaol.

31. Mr Quan Trung Bui, you are convicted of the offence to which you have pleaded guilty.

32. Having regard to the offence that is on the form 1, you are sentenced a term of imprisonment consisting of a non‑parole period of one year and ten months with a balance of term of eight months.  That is a total sentence of two and a half years' imprisonment with a non‑parole period of one year and ten months.  It commences on 31 July 2018.  The total sentence expires on 30 January 2021.  The non‑parole period expires on 30 May 2020.

33. You should expect to be released to parole on 30 May 2020 but again, it remains a matter for the State Parole Authority.  From what I have been told, you are likely to then go into immigration custody but that is not a matter for me.

34. Mr Nguyen, you are convicted of the offence of cultivating not less than the commercial quantity of cannabis plants.

35. Having regard to the matters on the form 1, you too are sentenced to a sentence of imprisonment consisting of a non‑parole period of one year and ten months with a balance of term of eight months.  That is a total sentence of two and a half years' imprisonment with a non‑parole period of one year and ten months.

36. Mr Nguyen, your sentence commences on 31 July 2018.  It expires on 30 January 2021.  The non‑parole period expires on 30 May 2020.  You too can expect to be released to parole on that date.  But again, based on what I am told in this material, you are likely to go into immigration custody.

37. The plants are to be destroyed if they have not already been.

Orders

38. The following orders are made in relation to Mr Tien Duc Bui:

1. Convicted.

2. Sentenced to a term of imprisonment consisting of a non‑parole period of 11 months and a balance of term of seven months, to date from 31 July 2018.  The sentence expires on 30 January 2020.  The non‑parole period expires on 30 June 2019.

39. The following orders are made in relation to Mr Quan Trun Bui:

1. Convicted.

2. Having regard to the offence on the form 1, sentenced to a term of imprisonment consisting of a non‑parole period of one year and ten months with a balance of term of eight months, to date from 31 July 2018.  The sentence expires on 30 January 2021.  The non‑parole period expires on 30 May 2020.

40. The following orders are made in relation to Mr Minh Nguyen:

1. Convicted.

2. Having regard to the matters on the form 1, sentenced to a sentence of imprisonment consisting of a non‑parole period of one year and ten months with a balance of term of eight months, to date from 31 July 2018. The sentence expires on 30 January 2021.  The non‑parole period expires on 30 May 2020.

41. Plants to be destroyed.

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Decision last updated: 08 August 2019