R v Cao

[2019] NSWDC 350

District Court

New South Wales

Medium Neutral Citation:	R v Cao [2019] NSWDC 350
Hearing dates:	09 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Drug offences — Cultivate prohibited plant SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Relevant factors on sentence — Parole period
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Manh Linh Cao (Offender)
Representation:	Matthew Dickinson (Crown) Yashvi Shah (Offender)   Director of Public Prosecutions (NSW) (Crown) Ly Lawyers (Offender)
File Number(s):	2018/00129305 & 2018/00219943

EX TEMPORE JUDGEMENT (REVISED)

Introduction

1. Manh Linh Cao pleaded guilty in the Local Court to two offences. These are, first, an offence of cultivating a prohibited plant, not less than the commercial quantity, in premises in Carlingford, between 8 June 2016 and 13 September 2016. The number of plants involved was 231. The second offence is cultivating a prohibited plant not less than the commercial quantity. On this occasion the number of plants was 82. The misconduct was between 26 June 2017 and 27 July 2017 in different premises also at Carlingford.

2. Schedule 1 in the Drug Misuse and Trafficking Act 1985 provides for cannabis plants cultivated by enhanced indoor means the commercial quantity specified is 50 plants. The large commercial quantity specified is 200 plants. Although in respect of the first event the offender was in fact cultivating the large commercial quantity, upon the concession made by the Crown that it could not prove to the requisite standard knowledge of the 231 plants, he has been charged with the lesser offence.

Penalties

3. Both offences are contrary to s 23 (2) (a) of the Drug Misuse and Trafficking Act. The maximum penalty specified is imprisonment for 15 years, with a fine of $385,000. There is no standard non-parole period for the purposes of Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999.

Pre-Sentence Custody

4. He has been in custody since 24 April 2018. The aggregate sentence I shall impose today will commence on that date. He was engaged in these two enterprises, as I said, in the period between June and September 2016 and in the second between June and July 2017. He was not charged in respect of the second matter until 17 July 2018, which was after he had been arrested and charged with the first event. He was not on conditional liberty at the time of the commission of the second of the offences.

Co-Offenders

5. I sentenced one of his co-offenders, Duong Sy Ngo, on 28 November 2017. He was charged with the offence of cultivating the 231 cannabis plants by enhanced indoor means. He was charged with the large commercial quantity and was exposed to a penalty of imprisonment for 20 years, with a standard non-parole period of ten years. I imposed an aggregate sentence in those proceedings but for that offence I assessed the indicative sentence to be one of 3 years and 9 months, including a non-parole period of 2 years and 3 months. He appealed to the Court of Criminal Appeal, unsuccessfully, on 14 December 2018.

6. Another offender, Gai Huy Ho, was sentenced on 4 December 2018 in the District Court at Penrith by his Honour Judge Hanley SC to an indicative term of 12 months. His Honour noted at p 6 in his judgement, with which I have been provided, that Cao and Ngo were clearly far more involved than Ho upon the material that was placed before his Honour and hence the indicative sentence of 12 months only. I have reviewed the judgement given by his Honour, including the reference to the subjective case that was presented on behalf of Mr Ho in those proceedings, and this sentence is in my opinion clearly within the range of his Honour’s sentencing discretion. He also was dealt with for cultivating the quantity of plants in more than the commercial quantity, as has been this offender before me today.

7. The other difference of note between the offender and the co-offenders, at least in the case of Ngo, is that Ngo was charged with being knowingly concerned in the cultivation of not less than the large commercial quantity of the cannabis plants, in which case traditionally the courts have tended to impose lesser sentences than those charged with the cultivation of the prohibited plants.

Utility of the Pleas of Guilty

8. After pleading guilty in the Local Court, he confirmed his pleas and adhered to them before me today. Having pleaded in the Local Court, both at common law and consequent upon subsequent legislation governing proceedings brought to this Court, he is entitled to a discount of 25% to the sentence that would have otherwise been imposed. In the case of the charge of cultivating 231 cannabis plants, I have applied that discount, which resulted in an indicative sentence expressed in years, months and days. I have abandoned those days with the consequence that he has a slightly greater discount than the 25% so that the sentence might be expressed more conveniently.

The Facts

9. The facts relevant to the first offence are as follow:

10. Cao was born in 1990 and is therefore 29 years of age. Ho was born in 1965 and is therefore significantly older, and Ngo, born in 1995, is into his mid‑twenties by now.

11. In early June 2016, following an open house inspection, a lease in false names using fraudulent documents was arranged in respect of a property in Carlingford. On 13 September 2016 a real estate agent communicated with the email address nominated by the purported tenant so that an inspection could be arranged of the premises on that day. The email user asked if the inspection would be internal or external and requested that it be delayed, indicating that the occupants needed time to move things from the premises. The real estate agent requested a phone number to speak with the email user. One was provided and, when contact was made, the estate agent spoke to a female with an Asian accent who called herself Marie. They discussed the inspection but Marie ultimately said, “I’m very sorry, we have cannabis and cocaine at the house. Would the police be called? What is going to happen?” Unsurprisingly, the police were called.

12. The number used by Marie was later found to be subscribed to another person named JN. After speaking with the estate agent, the number used by the person Marie immediately contacted Ngo’s girlfriend, another person named Nguyen, with the given names TQ.

13. The police attended the premises that afternoon, 13 September 2016, and found the premises unoccupied. When they searched they found the sophisticated hydroponic cannabis cultivation that was in progress.

14. Diagrams of the two levels of the premises have been provided in the material tendered to me showing the various rooms in the property. Seven of the rooms had been converted for the purposes of hydroponic cultivation. Each one contained cannabis plants at various stages of growth. There was hydroponic lighting, and exhaust vents, irrigation systems and electrical transformers utilised to sustain the operation. Plastic sheeting had been installed on the floors and walls and the plants were being cultivated by enhanced indoor means. An agronomist certified that there were 231 cannabis plants growing in the premises at the time.

15. The search also revealed three large plastic bags containing cannabis leaf cut-offs, three bottles of Clonex - a plant hormone, 11 empty bottles marked “Super Bud Flower Supplement”, a five litre heavy duty water sprayer, and scissors, latex gloves and gardening gloves.

16. The premises were using an unmetered electricity connection, which bypassed the standard metering so that there was illegal electricity to the premises to allow this enterprise to continue. The building electricity was originally connected by way of an account with AGL in the name of KC, which was the family name used for the lease of the property. A phone number provided for that account belonged to a GH, who confirmed that the number had been so used fraudulently.

17. Forensic examination was undertaken. Nine fingerprints identified to Ho were located, as particularised in the facts. There were three areas of DNA identified relating to Ho: on a toothbrush, a pillowcase and a pair of underpants. As to this offender, there were 15 fingerprints located identified as his. They were, respectively: on a round white lightshade from Room C, on a second round white lightshade from Room C, on a Kathmandu envelope from the front verandah, on another Kathmandu envelope from the front verandah, on a Commonwealth Bank envelope, also from the front verandah, and on AGL envelopes, two of them, on the front verandah and two of them in the upstairs living room. There were fingerprints on correspondence and letters from New South Wales Fair Trading. These were located in the upstairs pantry and in the entrance hallway upstairs.

18. Enquiries were made of neighbours in and around this property. One of those neighbours described the day when the tenants moved into the premises. He saw two Asian males in their early twenties. They had a dark Holden Commodore with red “P” plates and a Toyota Camry. They were at the premises regularly, not every day but at least twice a week. Occasionally one of them would be there. Another neighbour described seeing three Asian males with a white Toyota HiAce van that would pop in there every now and then.

19. At the time of this enterprise Cao had a black Toyota sedan and a black Holden Commodore. Both were registered in his name and he held a P1 New South Wales licence and therefore, if he was abiding by the road rules, would have had red “P” plates fitted, such as was seen on what was described as the dark blue Holden Commodore. Ngo had a Toyota Camry, colour silver, and he was issued with a P2 licence. Ngo was arrested in respect of a similar matter on 24 September 2016, a separate enterprise, and earlier that day he had been driving a white Toyota HiAce van which had been hired from a company using his own name.

20. Upon his arrest Ngo’s phone was seized and was analysed. There was a photo taken on 23 June 2016 showing Cao using the piano in the lounge room of the premises. A video taken on 28 June 2016 showed Cao in the passenger seat and Ngo driving Cao’s Holden Commodore and entering Bunnings at Carlingford together. Two photographs taken on 3 July 2016 depicted Cao lunching with Ngo.

21. On 5 December 2016 Ngo’s Toyota was searched and found to contain various Bunnings receipts for various cultivation-related items. These were dated 6 April 2016, 10 September 2016, 13 September 2016, 20 September 2016 and 21 September 2016 respectively. The Bunnings receipt dated 10 September 2016 was for the purchase of gloves which matched those located by the police in the premises when it was searched on 13 September 2016. Also located in the car were electrical items, a pair of clippers, business cards for Outside In Hydro and Organics and Newcastle Car and Truck Rental.

22. There were bank transactions in which this offender, Cao, participated. On 1 July 2016 he made a rental payment for the premises using cash at a Cabramatta branch of that bank. He signed the deposit slip using the name Linh that being his middle name. He subsequently sent a photograph of himself holding the receipt to the real estate agent. On 7 September 2016 he was depicted on CCTV at Cabramatta ANZ with another male making a rental payment using cash. Cao signed the deposit slip using the name Luong, a fictitious name and the one in which the premises were leased. He wrote a phone number on the deposit slip, which was subsequently confirmed to be one subscribed to by a person named Nguyen in Victoria. That number was active from 2011 and was later linked back to Cao by investigators as he had previously supplied this number as his own when opening a post office box in Cabramatta in March 2016.

23. Ho was arrested on 29 November 2017. He was interviewed. He initially said he did not know where Carlingford was, he did not know what a cannabis plant was, and when shown a photograph of the front of the premises he said he did not know them. He later said he was a handyman and was at the premises for painting purposes but did not see any plants at the time. He said he slept at the premises during the lunch break, leaving his toothbrush behind. He maintained that he was there for painting only, despite the fact that the premises had been recently renovated.

24. Cao was arrested on 24 April 2018 and transferred from Immigration custody to New South Wales Police Force custody at Parramatta Local Court. He refused to provide answers or provide any explanation for his conduct. He was charged. The Crown accepts that it is not able to prove beyond reasonable doubt that he was aware of the specific number of plants in the premises but the offender accepts that he was aware of there being a number in the vicinity of but necessarily less than 200 cannabis plants at the premises. He accepts he attended the premises and cultivated the plants on at least one occasion.

25. The second offence is described in a separate statement of agreed facts. This tells me that he has been in this country unlawfully since 2012. His co‑offender in this case is Ngan Thi Pham. He is listed for sentence in this Court on 15 August 2019.

26. On 24 May 2017 Pham applied for a 12 month lease of other premises in Carlingford. These are different to the premises the subject of the earlier charge. On 31 May 2017 he and an unidentified Asian male attended the real estate agent and signed a tenancy agreement. They used false identities of Cindy Duong and Huang Dan. They provided fraudulent identification documents, including false driver’s licences, Medicare cards, keycards, payslips and bank account statements. Pham and the unknown male took possession of the property on 26 June 2017.

27. Over the course of the next month the real estate agent property manager regularly saw that the gates of the premises were shut. On one occasion he saw a white Toyota HiAce parked hard against the front door, which he thought was unusual. On 25 July 2017 he and a colleague attended the property and saw that the gates were padlocked. His colleague jumped the fence to have a look through the windows but saw that they had been blackened. A neighbour approached and said he had never seen anyone at the property.

28. The following day the colleague, a Mr B, and another colleague attended the residence with the keys. They found that the locks had been changed and that the rear door had been fortified. He found an unlocked window at the rear of the property, which he opened to look inside. He saw cannabis plants in pots under artificial lights. He saw no-one there. He immediately contacted the police. Mr B and his colleague were jumping back over the fence to wait for the police when they saw a silver car across the road occupied by two Asian males, one of whom was holding a two-way hand‑held radio. Once the estate agents were seen by the Asian males the vehicle sped off.

29. A crime scene warrant was executed the following day, 27 July 2017. The residence had been converted for the purposes of cultivating cannabis by enhanced indoor means. There were in total 82 cannabis plants in various stages of maturity. There was an elaborate system of artificial lighting and water pumps and exhaust fans installed in each room to facilitate the cultivation. In the bathroom there were eight large containers of assorted plant nutrients and fertilisers. The roof cavity contained a large number of transformers and homemade power boards. Technicians from Endeavour Energy inspected the property and determined that the electricity supply had been bypassed, providing an unmetered supply of electricity to the residence from the main power grid.

30. The police recovered a pair of dirty red and white gardening gloves from the floor of one on the rooms in which 11 cannabis plants were growing in pots. The offender’s DNA was found on the inside palm and cuff area of the right glove, as well as on a swab taken from the inside of the glove. The police also recovered an assortment of envelopes and discarded mail items from the recycling bin. The offender’s fingerprints were found on seven separate articles of mail.

31. The offender was arrested for this offence when on remand in relation to the earlier cultivation. On 22 May 2018 the police were notified by his solicitor that he did not wish to participate in an electronically recorded interview.

32. The Crown acknowledges in this matter that the evidence does not establish more than he was a crop sitter.

The Offender

33. As I said earlier he is 29 years of age. He has no antecedent offences. I have before me a sentence assessment report, where he is attributed with representations that he grew up in Vietnam. He remains a Vietnamese citizen. Before his arrest he was living in Bankstown. He reports having strong family supports in Vietnam, with whom he converses regularly via telephone. The Department of Immigration and Border Protection confirmed that he is currently an unlawful non-citizen and liable for detention if and when these proceedings allow him to be released. He accepts that he will be deported in due course, he would not appeal that decision and he would like to return to Vietnam.

34. That stands in contrast to a document that was tendered in his case, being a letter from a firm of lawyers purporting to act for him in immigration matters, addressed to the offender, confirming the work that the lawyers were asked to perform for the issue of a protection visa, of which he is in need because of threats of violence he had received in Vietnam. He had given them instructions to begin working on preparing a Subclass 866 Protection Visa. There is advice as to what would be required and what steps had been taken, including interviews with the assistance of an interpreter and the need for documentary evidence of the danger or threat that he faces in his home country.

35. His immigration status and what is likely to happen to him at the end of these proceedings is not relevant to the determination of sentence in this matter, but there is a stark contrast between the representations attributed to him in that correspondence and what is attributed to him in the sentence assessment report regarding his circumstances in his native country and his desire to either return there or remain in this country.

36. According to the sentence assessment report, he has accommodation available to him in the event that he is released into the community. He came here in 2009 on a student visa. Prior to arrest he was employed in the hospitality industry. He was also employed in painting and cleaning roles since July 2018 whilst in custody. He does not have any prior record here or elsewhere.

37. He accepted responsibility for his offences. He claimed initially to be unaware that he was participating in an illegal activity. However, once he became aware he did not cease his involvement due to his financial needs at the time. That is difficult to accept, I must say. He was offered the opportunity to make easy money, he said, by an acquaintance he had met in Sydney and he was introduced to the criminal operation. He denied any other association with persons involved in criminal activity and said he would avoid these types of people in the future. He said he required money to fund his father’s cancer treatment in Vietnam.

38. He is attributed with apparent insight into how his offending behaviour affects the community, noting he has seen the negative effects of drugs since entering custody. He is unwilling to engage in any intervention as he expects to be detained upon his release - for deportation I would conclude - and he is similarly unable or unwilling to undertake community service, none of which is to be a matter for consideration in any event.

33. He wrote a letter expressing his regret for his misconduct. That is now exhibit 1. Regrettably, it is in Vietnamese and not English, but I have had the assistance of an interpreter here today, whose name has been placed onto the record, and I am grateful for the task she undertook reading that document, translating it from Vietnamese into English so that I could have an understanding of what he had to say. The points of note that I took are that it is a letter of apology, it includes reference to his father’s diagnosis of lung cancer, there is money needed for his treatment, the people with whom he was involved invited him to grow marijuana, he did not know the damage it would cause to society, he feels very ashamed, he said he really regrets what he has done, he asks the Court, the community and family and friends to accept his apology, he wants to go home to be with his parents and promises that, wherever he goes, he will be a good person. He asks for the Court’s sympathy and leniency in the determination of this matter.

Submissions

40. The difficulty in this case is that I have no evidence. I have a document untested by cross-examination, not given under oath or affirmation, and the often-cited case of Qutami [2001] NSWCCA 353 requires that I use appropriate circumspection with regard to representations attributed to the offender. Statements presented in sentence proceedings in this form are admissible, but when exercising reliance upon them, in the absence of evidence given by the offender, the Court must use considerable caution.

41. I was familiar with this matter because I was the sentencing judge in the proceedings against Duong Sy Ngo. As I indicated earlier, I imposed an indicative sentence upon his prosecution for the 231 cannabis plants of 3 years and 9 months, with a non-parole period of 2 years and 3 months. I imposed an overall aggregate sentence of 4 years and 6 months, with a non-parole period of 2 years and 9 months. There was a Form 1 offence taken into account and that involved a significant cultivation. There was also an offence before me pursuant to s 166 of the Criminal Procedure Act 1986. For that offence I imposed an indicative sentence of one year. Price J in the Court of Criminal Appeal, with whom Hoeben CJ at CL and Rothman J agreed, granted leave to appeal but dismissed the appeal, rejecting the arguments that I had fallen into error or had otherwise imposed an excessive sentence.

42. The Crown correctly points out that parity is not of strict application in this case because Ngo was charged with a more serious offence and at the same time was charged with being knowingly concerned in the cultivation. He was also sentenced after I had taken into account the additional cultivation on the Form 1 that had the effect of impacting upon the sentence that would have otherwise been imposed.

43. The Crown points out the role that the offender played, the physical evidence connecting him to the crime, the use of motor vehicles, which in the circumstances the Court would conclude, he submits, involved at least one of those to which the offender had access at the first of the properties. I am asked by Ms Shah, who appears for the offender, to put that proposition entirely to one side in circumstances where it might have been any car driven by any other person in the circumstances and I could not conclude that it was his motor vehicle that was being used. Ultimately, little would turn upon that. He had to get to and from the premises. I would expect he had to use a motor vehicle and the facts are that he had access to at least two and it would not be surprising that he had one of his cars in use for transport to and from the property.

44. There is the role he played in making the rental payments on at least two occasions. It could not be said that he paid rent on more two occasions, but that speaks to the integral characteristic of the role he played in this first enterprise and the trust that must have been extended to him to be able to use cash to pay rent for this property so that the cultivation could continue.

45. The Crown submits that this offence is slightly below mid-range. The second offence is said to be below mid-range. The Crown acknowledges that there is no evidence of the extent of the reward that the offender was expecting from his activity in this enterprise, but the Crown submits that, if he was wishing to recover sufficient funds to contribute to his father’s care and treatment in Vietnam, it could not have been less than significant.

46. Regrettably, I have absolutely no evidence before me about the father’s illness, the prognosis, the progress it has made, the treatment that might be required or is available to him in Vietnam or what the cost might be. All I have is the representations by the offender that his father is burdened with lung cancer. I do not discount that his father is so afflicted, I extend the benefit in that regard to the offender and I accept that this is perhaps his motivation for having participated in these events, but there is nothing before me to show that he sent any money back to his father or his parents to contribute to his father’s care, treatment or any arrangements in place to facilitate that, which, in my view, ought to have been provided if it was such a significant aspect of his case.

47. The Crown accepts that there is some evidence of remorse, and accepts the assessment that he has a low risk of re-offending. It is difficult to assess his prospects for rehabilitation. With that I agree. He embarked upon two separate enterprises involving significant criminal misconduct and in each case he carried out an integral role, although in the second event his role was somewhat less than in the first.

48. All of that said - and it has been repeated by this Court and others, both at this level and the next level by appellate judges - but for people such as this offender, who was willing to facilitate and participate in these enterprises and provide the work that enables these cultivations to continue, those who are perhaps at a higher level, more administrative or executive in their function managing or directing the enterprise, could not prosper, they could not embark upon these crimes, and so it must be made clear that if students want to come to this country from other places, if they get tempted to enter upon arrangements such as this, there will be consequences and those consequences will include incarceration.

49. Ms Shah, speaking on behalf of the offender, put to me the proposition that his role in the first enterprise is somewhere between Ho and Ngo. I beg to differ with that submission. In my view, his participation is comparable to that of Ngo in this enterprise, but I bear in mind that Ngo was charged with a more serious offence, although at the level of being knowingly concerned, and there was a Form 1 offence taken into account. The indicative sentence I will identify for this matter therefore will be less than the sentence identified for Ngo. She argues that he is merely a crop sitter in the second house. I accept that but, as I said, that role is important to the enterprise. But for the offender and those like him, these events could not continue. She said the amount of the reward is unknown. That is true. There is no evidence before me from the offender as to what he expected and, being a criminal prosecution, of course he has no onus of proof in regard to the objective circumstances speaking to the seriousness of the offence, but at the same time he cannot come forward and say “My reward was likely to be low.” because he has provided no evidence of it and, if I accept that he was going to be remitting money to his father and his mother for his family’s purposes, including treatment of his father for such a serious illness, the reward that he was expecting from this enterprise could not have been insignificant.

50. The line in s 5 of the Crimes (Sentencing Procedure) Act has been crossed.

51. I accept that his plea of guilty reflects some contrition and remorse, but in light of the amount of evidence implicating him in these crimes I could not discount that there might have been some recognition of the inevitability of a conviction should he have defended these prosecutions at trial. But once I balance the matters out and I look to what he wrote, I would conclude that he has regret for having embarked upon this enterprise and caused or put at risk those members of the community who might have made use of this product had it found its way into the community.

52. All of the purposes of sentencing articulated in s 3A of the Crimes (Sentencing Procedure) Act, which reflect the common law that has developed over the decades, are engaged here. There must be appropriate punishment reflecting the objective gravity and the subjective case, such as it is, that has been put before the Court on behalf of the offender. General deterrence has a role to play, specific deterrence also. Protection of the community from the offender does not loom large in this case in light of the fact that there are some prospects of rehabilitation with the low level of risk for his re-offending identified in the sentence assessment report. There must be rehabilitation considered in the sentencing exercise. He must be made accountable for his misconduct. The Court will denounce what he has done and it will recognise the harm that this conduct has for the community. Cannabis is not a soft drug, as some people would like to have accepted. After decades involved in the criminal law, including more than a decade as a judge, it is quite apparent that cannabis is the starting point for many people who do not have the strength of character to avoid misusing drugs, including cannabis and those more serious, and it does expose those who are susceptible to the risk of mental health issues that often find the user exposed to significant criminal offences because of the loss of the capacity to manage themselves.

53. There are special circumstances. He is 29 years of age, he has not been in custody before, he does not have English to any standard, it appears, and his time in custody, I would accept, is more onerous in those circumstances. He has made some effort in gaol. There is a certificate before me in exhibit 1 showing that he has participated in courses concerned with cleaning operations. That does also speak to the extent to which he is attempting to progress towards rehabilitation.

The Sentence

54. The offender is convicted of both of these offences. As I said, I propose an aggregate sentence. For the offence of cultivate 231 cannabis plants by indoor means, I specify an indicative sentence of imprisonment of 3 years and 4 months after a discount of 25%. For the cultivation of the 82 cannabis plants by enhanced indoor means, I specify an indicative sentence of 2 years and 3 months after the application of a discount of 25%.

55. I specify an aggregate sentence. It shall be a sentence of 4 years overall, including a non-parole period of 2 years and 6 months. The sentence commences on 24 April 2018. The offender will be eligible for consideration for release to parole on 23 October 2020. The sentence overall will expire on 23 April 2022.

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Decision last updated: 24 July 2019