R v Cao

[2020] NSWDC 845

District Court

New South Wales

Medium Neutral Citation:

R v Cao [2020] NSWDC 845

Hearing dates:

21 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The offender is sentenced to an aggregate term of 2 years and 9 months imprisonment and an aggregate non-parole period of 1 year and 10 months.

An order is made in accordance with the short minutes of order forfeiting the $750.

The matter on the s 166 certificate is to be withdrawn and dismissed.

The cannabis plants are to be destroyed.

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation

Legislation Cited:

Drug Misuse and Trafficking Act1985 (NSW), ss 23(1A), 23(2)(a)

Crime Sentencing Procedure Act 1999 (NSW), s 3A

Category:

Sentence

Parties:

Director of Public Prosecutions
Mr The Cao

Representation:

Solicitors:
Mr T Hammond
Ms J McWhirter

File Number(s):

2019/330012

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced today having pleaded guilty to the following two offences. The first is that between 25 June 2019 and 21 October 2019 at South Penrith he knowingly took part in the cultivation of prohibited plants by enhanced indoor means, namely 134 cannabis sativa plants, which was not less than the commercial quantity applicable to that prohibited plant. 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/or a three and a half thousand penalty unit fine.

2. The second offence is that between 5 August 2019 and 21 October 2019 at Castle Hill he knowingly took part in the cultivation of a prohibited plant by enhanced indoor means, namely 30 cannabis sativa plants for a commercial purpose. That is an offence under s 23(1A) of the Drug Misuse and Trafficking Act and has the same maximum penalty as the first offence.

3. The offender also acknowledges his guilt in relation to an offence on a form 1 of deal with property, $750, suspected of being the proceeds of crime, and asks that I take that offence into account when sentencing him on the first charge which concerns a commercial quantity of cannabis plants. The offence on the s 166 certificate has become the offence on the Form 1.

The Facts

4. The facts are agreed and the following is taken from the agreed facts.

5. On 17 May last year the police, having received information regarding the suspected cultivation of cannabis at 71 Hilliger Road, South Penrith, began conducting surveillance of those premises. About 5.34 pm on 25 June 2019 a white Toyota Aurion driven by the offender was driven into the driveway of those premises. The vehicle left at 6.09 pm, about half an hour later. On Friday, 8 July 2019 at about 5.40pm the police observed the same vehicle drive into the driveway. They observed the offender enter those premises and leave the location in the vehicle around 6.10 pm.

6. The following week on 15 July last year police observed the offender arrive in the same vehicle at 71 Hilliger Road, South Penrith, at about 6.34pm. He entered the premises and remained there for about an hour. He left the premises and was observed to wheel a council bin from the carport and left it on the kerbside. He then left the location around 7.37 pm in the vehicle.

7. At about 5.33 pm on Monday, 5 August 2019 the police observed the offender to arrive at 71 Hilliger Road, South Penrith, in the same vehicle and park in the driveway. He entered the premises where he remained for approximately 40 minutes. He was then seen wheeling a council bin from the driveway onto the kerbside. He got into the driver's seat of the vehicle and drove away from the location around 6.14 pm. He was surveilled from that address to a second address, being 17 Sherwin Avenue, Castle Hill.

8. He was seen wheeling a council bin from the driveway of those premises and left it on the kerbside. He then drove the vehicle away from that location. At about 5.47 pm on 2 September 2019 the offender was observed by the police to arrive again at 71 Hilliger Road, South Penrith. He again entered those premises for about 40 minutes. He left the premises and wheeled a council bin from the carport about 6.18 pm and left it on the kerbside. He then got into the vehicle and left the location.

9. On Monday, 21 October 2019 the police observed at about 8.11 pm the offender arrive in the same vehicle at 71 Hilliger Road, South Penrith. He went into the premises again for about 40 minutes, and at 8.44 pm he left the premises and wheeled a council bin to the kerbside at the front. He then drove that vehicle away, and at 9.18 pm he drove it into the driveway of 17 Sherwin Avenue, Castle Hill. He got out of the vehicle, wheeled a council bin to the kerbside before leaving the location in the vehicle. After a few minutes of following the offender's vehicle on this occasion the police stopped it on Old Northern Road in Castle Hill. They approached the offender and introduced themselves. They placed him under arrest and cautioned him.

10. They located several items of interest, including two keys on the driver's side pocket of the car. They also located $750 in $50 notes in the centre console, and that is the amount of money which is the subject of the charge on the Form 1. He was taken to Castle Hill Police Station and certain forensic procedures were undertaken. A crime scene warrant was applied for in relation to both premises. Two of the keys located within the offender's vehicle fitted the front doors of both premises. On 22 October 2019 the police located 134 mature cannabis plants at the 71 Hilliger Road, South Penrith address. The plants were growing in a sophisticated hydroponic setup, using heat lamps and fans to regulate the room temperature, and using the bathroom to create fertiliser solutions to feed the plants with both water and chemicals. There was no evidence of anyone physically residing in the premises.

11. When searching the premises at 17 Sherwin Avenue, Castle Hill, 30 mature cannabis plants were located. Again the plants were growing with the assistance of a sophisticated hydroponic setup using heat lamps and fans to regulate the room temperature and using the bathroom to create fertiliser solutions to feed the plants both water and chemicals. The hallway cabinet had extra fans and lights. There were hydroponic lights and shades which had been used previously for cannabis cultivation. The flooring under the plastic sheeting in another room had been removed which opened up an escape route to the garage which allows direct access to the rear yard. Again, there was no evidence of anyone physically residing in the house.

12. The offender was charged with the current offences. Several items which included gloves, a baseball cap, water bottles and a cigarette butt seized from the drug cultivation premises in South Penrith and Castle Hill were sent for forensic analysis, and DNA found on the gloves located in the cannabis grow rooms of both premises, as well as the DNA on the cigarette butt matched the DNA of the offender. The facts contain the following. The defence position is that the offender was tasked with being a crop sitter, that is, attended the premises to make it look like people lived at the houses and conduct rudimentary tasks in relation to the cultivation, such as occasionally turning on an irrigation tap. The Crown, according to the facts, does not wish to dispute that the offender was a crop sitter in the absence of evidence contrary to that.

Objective seriousness

13. I turn then to my assessment of the objective seriousness of the two types of offences. In offences of this type the number of plants involved is always a relevant factor on sentence but it is not determinative. In relation to the knowingly take part in the cultivation of a commercial quantity of cannabis plants, the number of plants was 134. The commercial quantity is 50 and the large commercial quantity is 200. The quantity, the subject of this offence, is approximately two and a half times the minimum amount that constitutes the commercial quantity.

14. The number of plants involved in the offence at Castle Hill was 30, considerably less than the number involved in the offence at the South Penrith premises. Another important factor to consider in determining the level of objective seriousness of such offences is the role of the offender in the commission of them. The Crown, as I understand it, accepts that the Court could not find beyond reasonable doubt that the offender was more than a crop sitter, by which I take the concession to be that the offender should not be viewed as a principal behind the cultivation of the two crops. The offender's offence at the South Penrith premises was particularised as occurring over the period 25 June to 21 October 2019, a period of some four months. He was observed by police to attend those premises some six times during that period. He stayed at the premises a limited period of time on each occasion, so his active involvement in the cultivation is likely to have been fairly limited.

15. The offender's offence at the Castle Hill property occurred over the period 5 August to 21 October 2019, a period of a little more than two months. The crop was only one of some 30 plants. He was only observed to be at those premises according to the agreed facts on two occasions. He was clearly a trusted worker at both cultivations as he was found in possession of the keys to the two properties.

16. The evidence satisfies me he involved himself in the offences for financial gain, although probably in order to assist his family back in Vietnam. I assess the objective seriousness of the offence committed at the South Penrith premises as being above the low range but below the mid-range of objective seriousness for such offending. I assess the objective seriousness of the offence committed at the Castle Hill premises as towards the low end of the range.

The offenders subjective case

17. I turn then to the offender's subjective case. His date of birth is 12 February 1992, so he is 28 years of age. He has no criminal record here, and on the evidence no criminal record in his native Vietnam. There is no evidence that his lack of a criminal record in some way was utilised in the commission of the offence, or explains his recruitment to it. I therefore consider it is appropriate to extend leniency to him because of his lack of a criminal record.

18. There is before me a psychological report dated 19 August 2020 prepared under the hand of Thea Gumbert, a registered psychologist. There are also a number of documents from family members and others, which confirm certain statements the offender has made to the psychologist about his background. I note the offender did not give evidence before me.

Family background

19. In terms of his family background, the psychologist's report records that the offender is a Vietnamese national who has resided in Australia since 2013. He is the eldest of his parents' two sons. He reported to the psychologist good relationships with his family and a stable home life during his upbringing

Education and employment history

20. In terms of his education and employment history, according to what the offender told the psychologist, he completed his secondary education in 2010 and subsequently completed a college course in finance, but never held employment in Vietnam. His parents arranged for him to study English in Australia and he travelled here in March 2013 on a student visa.

21. He enrolled at the University of South Australia with the intention of studying finance, but commenced an English course as he had no English upon his arrival. The offender told the psychologist that in late 2013 his family's home and business in Vietnam was seriously damaged in a typhoon and he began to engage in employment. In 2014 he relocated to Melbourne and due to poor immigration advice he found that his student visa was cancelled.

Substance use

22. The psychologist records that the offender resided in Melbourne until 2018 and that he began working as a handyman as his parents were unable to send him sufficient funds to live on. There is evidence that while in Melbourne he studied Buddhism at a particular pagoda in that city. There is evidence before me that he would often volunteer his time helping at the pagoda and assisting people with disabilities in the practice of their faith.

23. According to the psychological report, his parents were experiencing financial difficulties in Vietnam in 2018. Around that time "a friend" in Sydney offered him a job that would make him "good money", and he travelled to Sydney to take up that opportunity without knowing what the job entailed. The offender told the psychologist that it was only after settling in Sydney in early 2019 that he found out the job involved the commercial cultivation of cannabis.

24. The offender denied to the psychologist any history of illicit drug use or any history of alcohol related problems or dependence.

Psychological/psychiatric history

25. He also denied to the psychologist any history of impairment or mental health disorders. The psychologist considered that the offender was normally orientated to time, place and exhibited lucid thought processes, and there was no indication of thought disturbance. The offender did not complain to the psychologist of symptoms of depression or anxiety, and psychometric testing produced results in the normal range.

Attitude to the offence

26. In terms of his attitude to the offence the offender told the psychologist that in relation to his involvement in the offences he was instructed by his associates to attend the properties on a weekly basis, remain there for between 30 and 60 minutes and to put the garbage bins out.

27. He also told the psychologist that he was paid $1,500 per fortnight and that he sent most of that money to his parents in Vietnam and supported himself by working as a handyman. He claimed to the psychologist that it was around March 2019 that he became aware that he was involved in the commercial cultivation of cannabis, but that he continued to be involved in order to assist his family in their financial difficulties.

The future and risk of re-offending

28. He also told the psychologist that he apologised for his behaviour but suggested that it was not until he was in custody that he realised how seriously his offending was. I have some concerns that he probably did realise his conduct was particularly serious before he went into custody given the nature of it. The psychologist considered the offender has good insight into his offending and a relatively low risk of reoffending. It appears likely that upon his release from custody he will be deported to Vietnam. However, that is irrelevant to the sentence that I am to impose upon him.

Imposition of sentence

29. His pleas of guilty were entered in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of them. His pleas of guilty and his statements of remorse to the psychologist satisfy me that he is genuinely remorseful. Given his lack of a criminal record and his acknowledgement of his guilt, I consider that he has good prospects of rehabilitation.

30. The Form 1 offence is not of sufficient seriousness as to have a significant impact upon the sentence to be imposed on count 1. I am satisfied on the evidence, as I say, that the offender has good prospects of rehabilitation. He is a relatively young man and this is his first time in custody. He appears, on the material before me, to have no relatives in Australia in terms of visitors while in custody.

31. I note he is being sentenced during the COVID-19 pandemic when, as far as I currently know, no gaol visits are occurring, although I understand he receives telephone contact with his family. I have had some limited regard to the fact that due to the pandemic offenders in custody are likely to feel considerable anxiety being in the custodial environment, in addition to the normal anxiety associated with being in prison. The offender has been in custody since 21 October 2019 and his sentence will be backdated to commence from that date.

32. I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, given there are two offences involving two cultivations, I consider that there should be some limited accumulation of the sentences I impose.

33. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Those who involve themselves in the commercial cultivation of cannabis for financial gain must expect to receive significant sentences of imprisonment. Drugs like cannabis are causing untold damage to families and destroying the very fabric of our community. Even though the offender's role is not an overly significant one, these types of cultivations cannot be successful without people willing to perform the role that the offender performed here. The only appropriate penalty is one of full time custody. The maximum penalty has been taken into account as a legislative guidepost.

34. I have had regard to the statistics and the sentencing judgments that both the Crown and counsel for the offender referred me to, noting the limitations on the use of statistics and District Court sentencing judgments.

35. I consider that the appropriate starting point prior to the discount for the plea of guilty for the offence of knowingly take part in the cultivation of a commercial quantity of prohibited plants to be three years imprisonment. I consider that the appropriate starting point prior to the application of the discount for the plea of guilty for the offence of knowingly take part in the enhanced cultivation of 30 cannabis plants for a commercial purpose to be 16 months imprisonment.

36. Mr Cao, you are formally convicted of the two offences to which you pleaded guilty. I will firstly record what are called indicative sentences, and I have had regard to all of the matters I have just referred to in arriving at them. The sentences you will hear me first announce Mr Cao are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up the two indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends, and the date when you are first eligible for parole.

37. On the knowingly take part in the cultivation of a commercial quantity of prohibited plants by enhanced means there is an indicative sentence of two years and three months. On the knowingly take part in the enhanced indoor cultivation of 30 cannabis plants for a commercial purpose there is indicative sentence of 12 months. I impose an aggregate sentence of two years and nine months with a non-parole period of one year and ten months. The sentence commences on 21 October 2019 and expires on 20 July 2022. The non-parole period expires on 20 August 2021. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 20 August 2021. I expect that you will be released on that date.

38. It seems likely that you will be deported upon being released from custody, but that is not a matter for me. It is a matter for the Immigration Department. The aggregate sentence is one of two years and nine months with a non-parole period of one year and ten months. I have it commencing on 21 October 2019, expiring on 10 July 2022, and the non-parole period expires on 20 August 2021.

39. I make orders in accordance with the short minutes of order which in effect forfeits the $750. I note the matter on the s 166 certificate was on the Form 1 so should be formally withdrawn and dismissed. I make an order that the cannabis plants are to be destroyed.

Orders

1. The offender is sentenced to an aggregate term of 2 years and 9 months imprisonment and an aggregate non-parole period of 1 year and 10 months.

1. An order is made in accordance with the short minutes of order forfeiting the $750.

2. The matter on the s 166 certificate is to be withdrawn and dismissed.

3. The cannabis plants are to be destroyed.

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Decision last updated: 14 February 2021