R v Chan

[2021] NSWDC 531

District Court

New South Wales

Medium Neutral Citation:

R v Chan [2021] NSWDC 531

Hearing dates:

11 August 2021

Date of orders:

11 August 2021

Decision date:

11 August 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Term of imprisonment of 2 years 6 months with a non-parole period of 1 year 3 months

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant

CRIME — Drug offences — Enhanced indoor cultivation

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Imbornone v R [2017] NSWCCA 144

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Hock Lye Chan (Offender)

Representation:

Amarande Chauvet (Crown)
Roland Keller (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Solis Lawyers (solicitors for the Offender)

File Number(s):

2020/00284566

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

1. Hock Lye Chan appears for sentence in respect of one offence contrary to s 23(2)(a) Drug Misuse and Trafficking Act 1985, expressed in the following terms: that he on 1 October 2020, in Marsfield in the State of New South Wales, did knowingly take part in the cultivation of a number of prohibited plants, namely 172 cannabis sativa plants, cultivated by enhanced indoor means, which was not less than the commercial quantity applicable to that prohibited plant.

MAXIMUM PENALTY

2. The maximum penalty for this offence is imprisonment for 15 years and a fine represented by 3,500 penalty units. There is no standard non‑parole period specified for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

PLEA OF GUILTY

3. The offender pleaded guilty in the Local Court from whence he was committed to the District Court for sentence and thus I shall allow him a discount of 25% on the sentence that would otherwise have been imposed upon the synthesis of the established objective and subjective factors: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

PRE-SENTENCE CUSTODY

4. There is an anomaly in the Crown bundle. According to the cover sheet the offender was arrested on 30 September 2020 and has been in custody ever since, however according to the statement of facts a search warrant was granted on that day and he was not arrested until 1 October 2020. The sentence I impose today will be commenced on that date. I raised this matter before the delivery of this judgement and the Crown acknowledged that it was her intention to make that correction in the course of the proceedings today.

THE OFFENCE CHARGED

5. The parties are ad idem upon the nature of the offence charged, and upon my inquiry made submissions upon the interaction of the relevant provisions in the Drug Misuse and Trafficking Act which might otherwise appear anomalous.

6. The structure of the provisions exposing this offender to punishment is not without its complexity. Section 23(1) of the Act provides in the following terms for the least serious of the offences from the cultivation of prohibited plants:

“1. A person who‑‑

(a) Cultivates, or knowingly takes part in the cultivation of, a prohibited plant.

(b) ...

(c) ...

is guilty of an offence.”

7. The offence created by s 23(2)(a) of the Act under which the offender is charged is in the following terms:

“2. A person who‑‑

(a) Cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants which is not less than the commercial quantity applicable to prohibited plants.

(b) ...

(c) ...

is guilty of an offence.”

8. There is no reference in this provision to cultivation by enhanced indoor means and yet the particulars of the offence charged include that the cultivation was by enhanced indoor means. However s 23(1A) provides for such an offence but only in respect of quantities that are more than the small quantity, but less than the commercial quantity specified for cannabis plants and when the cultivation was for commercial purposes:

“(1A) A person who‑‑

(a) Cultivates by enhanced indoor means, or knowingly takes part in the cultivation by enhanced indoor means of, a number of prohibited plants which is--

(i) Not less than the small quantity applicable to the prohibited plants, and

(ii) Less than the commercial quantity applicable to those prohibited plants, and

(b) Cultivates, or knowingly takes part in the cultivation of, those prohibited plants for a commercial purpose is guilty of an offence.”

9. If the evidence does not result in a finding that the number of plants exceeded the small quantity or that the cultivation was for a commercial purpose, alternative verdicts are available. Thus s 23 includes:

“(1B) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the number of prohibited plants involved is equal to or more than the small quantity applicable to the prohibited plants, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1)(a), and the person is liable to punishment accordingly.

(1C) If, on the trial of a person for an offence under subsection (1A), the jury is not satisfied that the person cultivated, or knowingly took part in the cultivation of, a prohibited plant for a commercial purpose, the jury may acquit the person of the offence charged and find the person guilty of an offence under subsection (1)(a), and the person is liable to punishment accordingly.”

10. Section 23A of the Act also provides for offences of cultivation by enhanced indoor means but with additional elements:

“(1) A person who‑‑

(a) Cultivates, or knowingly takes part in the cultivation of, a prohibited plant by enhanced indoor means, and

(b) exposes a child to that cultivation process, or to substances being stored for use in the cultivation process,

is guilty of an offence.

(2) A person who‑‑

(a) cultivates, or knowingly takes part in the cultivation of, a number of prohibited plants by enhanced indoor means which is not less than the commercial quantity applicable to those plants, and

(b) exposes a child to that cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.

(3) A person who‑‑

(a) Cultivates by enhanced indoor means, or knowingly takes part in the cultivation of enhanced indoor means of a number of prohibited plants which is‑‑

(i) Not less than the small quantity applicable to the prohibited plants, and

(ii) Less than the commercial applicable to those prohibited plants, and

(b) Cultivates, or knowingly takes part in the cultivation of those prohibited plants for a commercial purpose, and

(c) exposes a child to the cultivation process, or to substances being stored for use in that cultivation process,

is guilty of an offence.”

11. The offences here provided therefore require not only cultivation by enhanced indoor means, but also further elements.

12. First, exposure of a child to the process or to substances stored for the cultivation process; secondly, for the quantity of the plants to be not less than the commercial quantity, as well as the elements of exposure of a child to the process or to substances stored for the cultivation process; thirdly, in the case of such cultivations of more than a small quantity or less than the commercial quantity of prohibited plants, the elements of exposure of a child to the process or to substances stored for the cultivation process.

13. Thereafter the section provides for alternative verdicts if the evidence does not satisfy the jury of the additional elements required in the first three subsections.

14. The penalties provided for the offences created by these provisions vary according to the seriousness of the offence thereby created: s 32 and s 33 of the Act. As noted above the offence of cultivation of prohibited plants without more is the least serious. On the other hand an offence contrary to s 23(2)(a) of the Act exposes the same maximum penalty regardless of whether the plants are cultivated by enhanced indoor means. Nonetheless the purpose of the legislation is clearly; cultivation of prohibited plants using enhanced indoor means is to be dealt with as a more serious offence than cultivation other than by those means.

15. The distinction between cultivation and cultivation by enhanced indoor means is captured in the definitions of those terms in s 3 of the Act.

“Cultivate, in relation to a prohibited plant, includes:

(a) sow or scatter the seed produced by the prohibited plant, and

(b) plant, grow, tend, nurture or harvest the prohibited plant.”

“Cultivation by enhanced indoor means, in relation to a prohibited plant means:

Cultivation of the plant—

(a) that occurs inside a building or structure, and

(b) that involves any one or more of the following‑‑

(i) the nurture of the plant in nutrient-enriched water (with or without mechanical support),

(ii) the application of an artificial source of light or heat,

(iii) suspending the plant’s roots and spraying them with nutrient solution.”

16. The intention of having cultivation by enhanced indoor means dealt with as a more serious offence under this provision is achieved under the provision with which the offender is charged is achieved by the application of Schedule 1 of the Act, which specifies for Cannabis the commercial and large commercial quantities and cultivation by enhanced indoor cultivation.

17. Thus for cannabis plants cultivated by enhanced indoor means, a small quantity is five, the indictable quantity is 50, the commercial quantity is 50 and the large commercial quantity is 200. For cannabis plants other, the small quantity is five, the indictable quantity is 50, the commercial quantity is 250 and the large commercial quantity is 1,000.

18. The assessment of the seriousness of the offence to which the offender has pleaded guilty will therefore include the number of the plants in the cultivation of which he was knowingly concerned against the scale provided in the Schedule with 50 attracting less weight than the upper limit of 199 plants, which must be considered by the Court with all other relevant matters in the assessment of sentence, including the benchmark provided by the maximum penalty of imprisonment for 15 years and a fine represented by 3,500 penalty units: s 33(2) and 33(3) of the Act.

19. For offences involving the cultivation of large commercial quantities for prohibited plants the maximum penalties extend to imprisonment for 20 years and a fine represented by 5,000 penalty units: s 33(3)(b) of the Act.

20. To summarise, although s 23(2)(a) of the Act creating the offence charged does not include within its terms cultivation by enhanced indoor means, upon the above analysis of the legislative structure, where the cultivation alleged is by enhanced indoor means the assessment of the appropriate penalty includes the specification in Schedule 1 of the commercial quantity of the plants so cultivated, which is but one-fifth of the number required for the commercial quantity in cultivations not involving enhanced indoor means.

THE FACTS

21. I turn now to the facts to which the offender has pleaded guilty.

22. There are two copies of the document, one signed and a copy that is unsigned which includes colour versions of the images which are included in that document.

23. The offender was 29 years of age at the time of the offence and is now 30 years of age. In mid-July 2020 premises at Agincourt Road, Marsfield were rented out to a man who represented himself to be Yu Yue-Hi. Police investigated the Malaysian passport presented by that person as a form of identification. Neither New South Wales Police nor Roads and Maritime Services, or Border Force, had any holding for any such person existing. There is no evidence that the offender was the lessee of the premises.

24. From about 7.30pm on 27 August 2020 a police officer conducted surveillance outside of these residential premises and saw a silver Honda Civic bearing New South Wales registration BLQ XXX parked on the driveway. The red and yellow council bins had been placed out on the kerb ready to be collected and there were numerous lights on within the house. About 10.50pm the officer observed the offender exit the house to enter the Honda Civic and drive from the driveway. The officer followed the offender in her unmarked vehicle and a short time later the offender was stopped by police in a marked vehicle. He provided his Malaysian driver’s licence and identity card as identification.

25. About 30 September 2020 police applied for and were granted a crime scene warrant for these premises. At about 4pm on 1 October 2020 police attended the vicinity of the premises and continued surveillance. About 5.54pm the police saw a silver Honda Accord bearing New South Wales registration EJU XXX parked in the driveway of the residence. I refer to the comparable description given to these vehicles in each instance, but I note from the facts that one was a Honda Civic and the other identified as a Honda Accord; there is that difference as described in the facts.

26. The offender was the sole occupant of the vehicle. He exited the vehicle and entered the residence.

27. I am familiar with these cars and there is at least some possibility that there is a mistake made as to the particular model of the Honda in each instance. There were questions regarding the use of two motor vehicles by the offender on these occasions, but ultimately there is insufficient information to give rise to anything more than a measure of suspicion from those facts.

28. About 5.55pm police executed the search warrant and forced entry. Upon entering it was evident that the house had been converted for indoor cultivation of cannabis plants. The offender was arrested at the premises. He was seen immediately before that attempting to escape by climbing through a window.

29. The residence had been set up with six separate rooms used to cultivate cannabis. A layout of the premises is provided in the agreed facts. The plants ranged in maturity from freshly propagated seeds to fully mature plants. The rooms contained plants in black pots under large lamps. There were a total of 172 separate cannabis plants located in the residence. There were photographs included in the facts depicting the setup in the growing rooms.

30. The lamps in the individual grow rooms were powered by an electrical system running directly to the mains system of the house, depicted in the photograph included as part of the agreed statement of facts. The unsigned copy of the document with colour photographs depicts the images with greater clarity. These show examples of the mature plants as well as the electrical mains system connection for the electrical works.

31. With regard to these facts the Court is once more faced with an example of this type of criminal misconduct involving the use of premises for enhanced indoor cultivation of cannabis conducted with the level of sophistication that is so often seen in this type of organised criminal enterprise. The case against the offender, however, is that he anticipated modest financial reward for services he provided to those who were responsible for the creation of arrangements for the venture, including the arrangement for the lease of the premises in a false name. He is therefore to be placed at the lower end of the hierarchy of individuals engaged in the enterprise. However it is not to be ignored that he has facilitated those above him in the organisation and provided the means whereby the operation could be continued with limited risk of their detection.

32. His role was not without significance in the circumstances.

33. His lack of criminal antecedence is a matter that attracts qualified weight in the assessment of his sentence. Although he is to be seen as a person otherwise of good character, the limited weight that one might attach to his lack of criminal antecedents arises if the lack of past criminality was a consideration for his selection in this role.

34. He did not participate in an interview with the police upon his arrest and he suffers no additional punishment for choosing that course, which was his right, though had he chosen to co-operate and expose his principals he might have ameliorated the punishment to be determined upon the material before me.

35. I agree with the submission that his level of participation in the enterprise, taken with the nature of the enterprise and the facilities used, places his level of misconduct below mid-range of objective seriousness.

36. It was pointed out that he pleaded guilty to a charge alleging misconduct on only one day, 1 October 2020, the day of his arrest. However he has admitted facts in which he is attributed with relevant conduct beyond that day, beginning with observations made of his activities on 27 August 2020 and his use apparently of two comparably described motor vehicles with different registration plates; the first of those on 27 August and the other at the time of his arrest.

37. There is no information before me regarding the provenance of these vehicles or the registration plates. It is simply not known how he had access to or the opportunity to use these vehicles, but I would not accept that I should deal with the offender on the basis that he was involved in this arrangement on one day only.

38. Moreover he admitted to the psychologist, who provided a report tendered in his case that he was desperate for money and had been working at the premises for about one month prior to his arrest, attending there once per week. He was paid $180 for each occasion he said.

THE OFFENDER

39. The offender is now 30 years of age and was 29 at the time of the offences. There is no antecedent criminal record tendered against him.

40. He was assessed by a psychologist, who on 1 August 2021 reported upon the assessment made by audio visual link with the assistance of an interpreter. I would observe that it is the Crown’s submission that limited weight should be attributed to untested representations made by the offender and reported by the psychologist. The offender has chosen not to give evidence and the circumspection urged by Smart AJ in R v Qutami [2001] NSWCCA 353 and more recently by Wilson J in Imbornone v R [2017] NSWCCA 144 must be given appropriate consideration.

41. This said there are aspects of the report that indicate that he ought to be accepted as essentially truthful in what he reportedly said. He had not sought to develop any history that might explain his decision to embark upon this criminal misconduct, his explanation is based upon what he said were economic circumstances after the loss of work and the current pandemic, and he admitted the need for money and his surrender to the opportunity to earn it in the way that he did.

42. He is attributed with some representations that carry the implication that he was unaware of the significance of his wrongdoing. At p 2 of the report the following quotation appears:

“I really regret what I did. For the entire time of my life, I have never been involved in this kind of thing. I never know how bad the drug is for society, but now in gaol, I understand the consequences of the drug. If I had known about the consequences before taking on the job, I wouldn’t have taken on this job.”

43. I find that representation one that should attract little weight in the circumstances. Against the history that is otherwise described by him, I find it implausible that he would not have some understanding of the significance of this misconduct whether in our society or in his homeland of Malaysia.

44. The report specifies that he admitted his offending and acknowledged that the statement of agreed facts was relatively accurate. He lost his employment in 2020 in the construction industry in response to the implications of the Coronavirus. He was unable to survive long without some form of ongoing financial earnings. He had to pay rent and also find the means to fund his general living expenses.

45. He accepted a cleaning job that was offered by one of his acquaintances and he was instructed to attend the residence to clean, collect rubbish and take the council bins out for collection. He said he was aware of the cannabis plants being grown inside the residence, but he accepted the job as he was desperate to earn money. He said he was there for about a month before arrest, returning once a week and paid $180 for each attendance.

43. His personal and family relationships are discussed. He is one of three children born to his parents. He had a good relationship with his older sisters, but lost contact with one of them after she left Malaysia to secure employment in China. His mother is aged 51, she resides in Malaysia. His parents are now divorced. He had a close relationship with both parents until that time. He had less contact with his mother thereafter because he remained living with his father, but he has had a loving and supportive relationship with her over the years. She is unaware of his present difficulties. His father is now aged 55, living in Malaysia, and he has a very close and loving relationship with him.

44. He came to Australia in May 2018 under a refugee visa. There is a history of his relationships formed since he came here. He has a son born to him, currently aged ten, but he has not seen his son for some eight years because of difficulties with his ex-partner. His fourth and current relationship is ongoing. He is anxious to marry and start a family, and he hopes to be allowed to remain in Australia once he completes the custodial part of his sentence. This is a matter that is entirely within the province of the Commonwealth authorities; that possibility is not relevant to the assessment of sentence in this case, although it perhaps speaks to what prospects there might be for his rehabilitation once he is released.

45. His schooling years were said to be happy. He left school at year 10. He was aged about 18 when he obtained employment as a kitchenhand. He thereafter became a casual painter. He obtained employment as an air conditioning maintenance assistant, all of this before he came to Australia, and here he secured employment as a painter on construction sites until the COVID‑19 pandemic. This was casual employment according to this report.

46. He is intending to work whilst in custody in the laundry department. He has never experimented with drugs. He is a moderate drinker of alcohol. There is no issue or indication of mental health deficiency. A mental state examination was unremarkable. Ultimately he was found not to be suffering any psychological or psychiatric disorder. Thus, upon this report, clearly his motivation was focussed upon economic circumstances after he lost his employment.

47. There is a reference from a Buddhist chaplain with whom the offender has associated in custody. This speaks well of him. Clearly the chaplain does not have an extensive understanding and knowledge of English, but the gist of what he has to say is that the offender has engaged with him and responded to the opportunities he provides.

CONSIDERATION

51. I am reminded of the number of plants and where they sit according to the scale provided in Schedule 1 Drug Misuse and Trafficking Act which I have already referred. The submissions made on behalf of the offender assess objective seriousness which is suggested to be at the level I have identified.

52. I am reminded of considerations that bear upon the assessment of the objective seriousness of the cultivation. It is with regard to the number of plants, the street value of the crop of which there is no evidence before me, and the sophistication, which I find existed in this enterprise. There is no evidence of any skills provided by the offender horticulturally in this enterprise. I know nothing of the duration of the enterprise overall and the Crown concedes that the material available to it does not allow for any finding with regard to the extent of the plantation before it was discovered on 1 October 2020, although those plants must have been there for some time, not ascertainable, before the interdiction by the police.

53. The sophistication of the enterprise is clear from the setup within the house, the use of the lighting, the use of the electricity. The Crown concedes though that the evidence does not allow the Court to conclude that the offender was in any way concerned with the setting up of the operation. The Crown correctly acknowledged that the extent of the offender’s role is difficult to determine, as is so often the case in these matters.

54. It is said on behalf of the offender that the Court could come to the view that the line provided in s 5 Crimes (Sentencing Procedure) Act 1999 has not been crossed. I do not agree with that submission. It is also said that if of the view that a sentence of imprisonment is appropriate, that it might be served by way of an intensive correction order in the community. I do not agree with that submission, however I do agree that the case is replete with special circumstances requiring an adjustment in the custodial component of the sentence that I am about to impose to allow for a longer period on parole.

55. All of the purposes of sentencing are engaged in this case, as articulated in s 3A Crimes (Sentencing Procedure) Act 1999. I agree with the Crown’s submission that general deterrence is to be given full weight because of the prevalence of this type of activity, and the consistent use of people such as the offender, without criminal antecedents, unknown to authorities, for the ongoing attention that is required for the cultivation process. There needs to be adequate punishment but that has to be moderated in the circumstances, bearing in mind that he is in this country without English as his first language and with limited family support. General deterrence has to be given appropriate weight.

56. Community protection does not attract a great deal of weight in this case. I am satisfied that on the material I have, albeit without evidence from the offender, that his prospects for rehabilitation are good. I am satisfied upon the material before me that he is unlikely to prove to be a danger to the community.

57. I hope the sentence I provide will promote and continue his rehabilitation, which seems to be evident in his attitude to his incarceration and his exposure to the Buddhist chaplain. He must be made accountable for his misconduct and his conduct must be denounced, and there must be recognition of the harm to the community.

58. One of the matters put on his behalf was that harm to the community was kept to a minimum because the plantation was disrupted, but that was only because of the interdiction of the police. It was not through anything that the offender had facilitated to bring the existence of this enterprise to the attention of authorities. The harm from these particular plants has no doubt been kept to a minimum, but the enterprise has been thwarted only to the extent of the discovery of these plants and the relatively low level role of the offender, who could not be found to be a principal in the activity.

59. I do not mean to be critical of him for not participating in an interview and disclosing the identities of his principals, as has been noted, and the Court would take notice of the fact that people who are in the unfortunate position of the offender will have good reason not to be exposing knowledge that they might have because of the risk of consequences to them either at the hands of those directly involved or others who take a dim view of people helping authorities. Thus, as I said, he is not to be punished for taking the course that he did, but is to be assessed according to the objective and subjective material that is before me.

THE SENTENCE

60. The offender is convicted of the offence to which he has pleaded guilty. I will allow a discount of 25% to the sentence that I would have otherwise imposed. I have identified as appropriate a head sentence of 2 years and 6 months, including a non‑parole period of 1 year and 3 months upon a finding of special circumstances; that he is a native of Malaysia of Chinese heritage with limited English, according to what I have before me; this is his first time in custody; he has no family members in this country; his sole support appears to be the person with whom he has recently formed his fourth relationship.

61. The sentence shall commence on 1 October 2020. I specify a non‑parole period of 1 year and 3 months commencing on that date. It will expire on 31 December 2021. The balance of the sentence of 1 year and 3 months shall expire on 31 March 2023. He is to be released to parole on the expiration of the non‑parole period.

**********

Decision last updated: 06 October 2021