R v Chan

[2012] NSWDC 57

District Court

New South Wales

Medium Neutral Citation:	R v CHAN [2012] NSWDC 57
Hearing dates:	9 March 2012
Decision date:	09 March 2012
Before:	Berman SC DCJ
Decision:	Refer the offender for assessment as to his suitability to serve his sentence by way on an Intensive Corrections Order
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - Supply a prohibited drug - Cannabis
Cases Cited:	Thomson and Houlton v R (2009) 49 NSWLR 383
Category:	Sentence
Parties:	The Crown Wai Hung CHAN
Representation:	Director of Public Prosecutions AKN & Associates
File Number(s):	2010/329075

Judgment

1. HIS HONOUR: Wai Hung Chan appears for sentence after having pleaded guilty at an early stage to an offence of supplying a prohibited drug, that offence relating to significant quantities, 3.6 kilograms of cannabis, that was found in his home when police executed a search warrant there. He also asked me to take into account when I sentence him for that matter another offence of being knowingly involved in the cultivation of thirty-two cannabis plants. I make it clear that the thirty-two cannabis plants are separate from the 3.6 kilograms of cannabis leaf, the subject of the primary offence.

1. These offences came to light when police executed a search warrant at the offender's home. They there found a hydroponic cannabis cultivation set up. I gather that nothing was actually growing at the time, the thirty-two cannabis plants had been recently harvested and the cannabis leaf was in two separate quantities, being found in one of the rooms that was being used for the hydroponic cultivation of cannabis.

1. The accused was arrested. He declined to say anything, but a subsequent fingerprint analysis revealed the accused's fingerprints on items of interest. A title search also revealed that the accused owned the home.

1. The offender was born in China. He is now fiftythree years of age. He grew up in Guangzhou. He was separated from his family when he was sent to work on a farm and was subject to deprivations and restrictions of his liberty which he quite naturally resisted. He therefore escaped to Hong Kong after many unsuccessful attempts. There he worked as a labourer and studied English. After completing his English studies he began studying electrical engineering at college. He has worked in that area since.

1. He married a woman whilst in Hong Kong. They had two children, one aged twenty-seven and one aged twenty-one. The older child has a mental disorder whereby he cannot communicate. His relationship with his wife broke down for reasons which are set out in a psychological report of psychologist David Green. He then eventually moved to Australia after spending some time in quite sad circumstances. He has married again. This time to a Vietnamese refugee. They have three children - one is in Year 12, one is in Year 8 and one who is in Year 4. He has a good relationship with his children, but once again his relationship with his wife has broken down. They separated in 2004. I gather that the offender wants to resume living with his wife but she is avoiding the question.

1. He continued to work as an electrician in Australia and it was a dispute with a former employer after some thirteen years of employment there which led to the offender's mental state deteriorating and which, I gather, he blames, at least a little bit, for his present offending. The rights and wrongs of the dispute do not need to be determined but from the offender's point of view, he was asked to do something he should not have been asked to do, and when he refused he was subject to bullying to the extent that he ultimately resigned. That left him with what the psychologist said was a mood disorder. He was depressed and anxious.

1. In these circumstances his cannabis use escalated. He had begun smoking cannabis in early 2009, buying the cannabis from a man known as Black Kung. Once his cannabis use escalated and once he began spending a large amount of money on the drug, he accepted a proposal from Black Kung that his house could be used for the hydroponic cultivation of cannabis. The deal was that the offender would then get his cannabis for free. It is said that the equipment to cultivate the cannabis and cannabis plants was installed by Black Kung in August 2010, but a very short time later the offender became worried about the cannabis in his house and asked Black Kung to remove it. Some of the cannabis plants and some of the equipment was removed but a quantity of cannabis leaf was left behind as well as some other hydroponic equipment. The offender said that he stopped using cannabis around this time because he was concerned about the effects on his health.

1. The offender's conduct was of course seriously wrong. Cannabis, especially that cultivated hydroponically, is not accurately described as a soft drug by any means. Indeed the Parliament has responded to concerns about the effects of high grade cannabis produced through hydroponic means by creating specific offences. I, of course, immediately note that none of those offences have been laid against this offender, but I refer to that circumstance in order to deal with any suggestion, could it have been made, that this was minor criminality involving a drug which did not cause much harm to the community. The converse is certainly the case.

1. The offender is, as I have mentioned, fiftythree years of age. He has no prior convictions. That is a substantial bank of good character on which he is able to rely. As well as the absence of convictions providing evidence of his good character, there is evidence regarding his good character in a more positive sense as well. He appears to have been industrious, working for the same company for thirteen years and working for a different company now, having obtained employment on 20 December 2010. He is therefore an industrious and, apart from this offending, a productive member of society.

1. I should say I note and I have not mentioned thus far that the offender pleaded guilty. That affects not only the length of the sentence but also the form it will take. He is entitled to the maximum discount suggested in Thomson and Houlton v R (2009) 49 NSWLR 383. I note also that the offender spent two days in custody until he was granted bail. I have taken that matter into account in formulating the appropriate sentence as well.

1. It has to be said that he was not entirely frank with the author of the presentence report claiming, as he did, that the drug was cultivated for his own use. That is immediately obviously not true. The quantities involved preclude that suggestion as being regarded as anything other than fanciful, and in any case the offender is to be sentenced for supply not possession.

1. This is a case where the offender needs to be punished, but as well, the efforts that he has himself made to rehabilitate himself should be encouraged. As it turns out both Mr Jones, who appears for the offender, and the Crown agree on the appropriate outcome in those circumstances. Fortunately for them and the offender, I too agree.

1. I am satisfied that a custodial sentence is required because of the seriousness of this offending.

1. So having satisfied myself that a custodial sentence is required, I am also satisfied that it is likely that it would be less than two years. Indeed I have in mind at this stage a sentence of eighteen months imprisonment. I consider it appropriate to refer the offender for assessment as to his suitability to serve the sentence by means of an Intensive Corrections Order. I therefore grant the offender bail until 11 May at 2 o'clock.

1. ADJOURNED TO 11 MAY 2012 AT 2PM

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Decision last updated: 03 May 2012