R v Chen

[2023] NSWDC 554

District Court

New South Wales

Medium Neutral Citation:

R v CHEN [2023] NSWDC 554

Hearing dates:

08 December 2023

Decision date:

08 December 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

The sentence imposed for the cultivate offence, taking into account the offence on the form 1, is one of 2 years and 2 months imprisonment with a non-parole period of 1 year and 7 months to date from today. The offender will be released on parole on 7 July 2025.

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation — breach of conditional liberty — no genuine remorse – poor prospects of rehabilitation

Legislation Cited:

s.23(1)(a) Drug Misuse and Trafficking Act 1985 (NSW)

s.93T(1) Crimes Act 1900 (NSW)

Category:

Sentence

Parties:

R;
Jiang Feng Chen

Representation:

Counsel:
Defence: Mr de Dassel

Solicitors:
Crown: Ms K Reardon

File Number(s):

2022/188864

JUDGMENT

1. The offender, Jiang Feng Chen, appears for sentence on one offence of knowingly taking part in the cultivation of prohibited plants. This offence is contrary to s.23(1)(a) Drug Misuse and Trafficking Act 1985 (NSW) and has a maximum penalty of 10 years imprisonment.

2. The maximum penalty operates as a legislative guidepost.  

3. The offender entered a plea of guilty in the Local Court and a reduction of 25% applies to his sentence.  

4. The offender has signed a Form 1 document which lists one further offence of participating in a criminal group, being an offence contrary to s.93T(1) Crimes Act 1900 (NSW). If for sentence, the maximum penalty would be 5 years. The offender asks that I take this matter into account when I sentence on the drug offence. I consider it appropriate that I take this further matter into account and I do so in accordance with the principles set out in the guideline judgment. There is additional and separate offending reflecting the increased requirement of deterrence. There will be a modest increase.

5. There are agreed facts. I have had regard to the facts in full but recite them in summary. Some of the facts address the criminality involved in participating in a criminal group. I am mindful that the offence for sentence relates to the cultivation in Belfield only between 10 August 2021 and 25 January 2022. 

6. The offender was a member of an organised crime group along with Youzong Chen. The leader was Yilin Liu.  

7. The offender and Tao Lu had a financial interest in an island. They proposed providing the island for cultivation. In August 2021 the offender agreed with Mr Liu to use the island for cultivation. When the offender entered custody, Mr Lu took over the agreement. Mr Liu, Mr Chen and the offender cultivated plants at the offender’s home in Belfield. The plan was to cultivate the plants until they could be transferred to be planted on the island.  The electricity was by-passed, and batteries used. There is no evidence who completed this task. They were planted in the rear garden both in the soil and in Styrofoam. This cultivation commenced in August 2021. The offender purported the initial cultivation on his property would take 3 -4 months. Between 18 August 2021 and 25 September 2021, the offender on multiple occasions purchased fertilizers, propagation hormones and cultivation chemicals for use of the crop. The receipts and CCTV were tendered. On 12 September 2021 the offender drove Mr Liu to the island to prepare it for the proposed cultivation.  

8. The offender was arrested on unrelated charges and was in custody from 30 September 2021 until 25 November 2021. 

9. In his absence, on 14 November 2021 Mr Chen collected cannabis seeds from the offender’s garden and took them to the island.  

10. The offender was released on 25 November 2021. On this date, Mr Chen and Mr Liu collected more seeds from the offender’s garden to take to the island. They did not take the offender as they were concerned about him being a ‘mole’. They planted the seeds the following day. They returned to the garden on 30 November 2021 and planted seeds in the offender’s garden. On 4 December 2021 there was a comment that the offender had planted more seeds and Mr Liu claimed responsibility for organising and growing them.  

11. The offender entered custody on 30 December 2021. Mr Liu and Mr Chen monitored the cultivation in his absence. The facts state the three were involved in the cultivation, with the offender being responsible when at liberty and Mr Chen and Mr Liu assuming the role in his absence. All three, together with Mr Lu were involved in discussions and planning of the cultivation, including seeds, materials, irrigation, and profits.  

12. The police executed a search warrant on 25 January 2022 and removed 228 cannabis plants all under 1 metre. This date is the end-date of the charge. The offender was still in custody.  

13. Mr Liu and Mr Chen continued their involvement with the cultivation on the island until floods destroyed the crop on 7 March 2022.  

14. The offender remained in custody until 12 June 2022.  

15. I have considered the facts informing the offending to determine the objective seriousness. There was planning consonant with that expected of participants in a criminal group. The cultivation at the house involved three people acting together to cultivate the plants to be moved to the proposed island cultivation. Each was involved in different ways at different times. The offender was involved with the initial cultivation. He was absent from the property for much of the charge period; being present for about 6 weeks and a further 5 weeks. The by-passing of the electricity and use of batteries shows some sophistication. The plants were maturing. The cultivation continued over a number of months. There were 228 plants located, close to the commercial quantity of 250. The offender acted with others; each performing a similar role. In the offender’s absence his role was replaced by the other two.  He was meaningfully involved as disclosed in the facts; he participated in both planning the cultivation and discussing the profits. It is accepted to be organised crime related. Involvement was for profit.  

16. The offender has suggested he was involved as he was under financial stress and that he made a stupid decision. In the same letter he indicated he was still working when he commenced his involvement in the planning. By the content of the agreed facts, he accepts he was a member of a criminal group. I do not know precisely what he was to gain but I do not accept it was insignificant; particularly as the crop covered by the charge was to progress to a bigger operation on a property he had a financial interest in. He told Community Corrections he expected a large sum of money. The scope was to relocate plants and continue on the island with the agreement to receive 10% of the final yield. 

17. The offender told his psychologist he was not involved directly in the cultivation. He advanced he rented his property for the cultivation and obtained supplies from Bunnings. I do not accept this account as it is not consistent with the agreed facts. 

18. I determine the offender’s role within the offence and the offence to fall within the mid-level of seriousness.  

19. There is no factor that lessens his moral culpability.  

20. The offender is aged 58. 

21. At the time of offending the offender was subject to conditional liberty. He was on bail for the offences of 30 September 2021, which included an offence of dealing with the proceeds of crime. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend. 

22. The offender has a number of entries on his criminal history commencing in 1987, the same year he arrived in Australia from China. He thereafter continued over the decades to commit other offences. He has numerous offences of dishonesty, personal violence and driving. He also has previous entries for both supply and possess prohibited drugs in 2011. He has received various sentencing outcomes including sentences of full-time imprisonment. The more recent gaol sentences have included 2 months between 24/1/20-23/3/20 for dealing with the proceeds of crime and 14 months with a 7-month non-parole period for the driving and identity document offences. This last sentence was backdated to commence on 13 November 2021, although this reflected a period on remand from 30/9/21 to 25/11/21. He had re-entered custody on 30 December 2021 after being on remand bail. The non-parole period for the sentence expired on 12 June 2022. This sentence has some bearing on consideration of totality. Had the offender been arrested earlier there may have been consideration of concurrency between sentences. I have considered the disparate nature of the offending, the timing of the offending and the overall criminality. I do not consider any of this aggregate sentence should be taken into account. 

23. The offender’s antecedents operate to disentitle him to leniency. 

24. It is submitted on behalf of the offender that a positive finding of remorse should be made. The offender wrote to the court in a letter dated 15 September 2023. He wrote of working for a named employer and other employers when work was available. He also indicated he cared for his 88-year-old aunt. He described working initially in construction for 5 years and then as a taxi driver for about 20 years. He indicated he was not always authorised to operate as a taxi driver. He had a mortgage. He said he became involved because of financial pressure. The offender indicated his involvement was to buy equipment and plant chemicals and provide his yard. He provided the same version to his psychologist. The offender stated he was incredibly sorry for what he did, and acknowledged he let people down and recognised the harm drugs can cause.  

25. The offender relies on two undated letters. An employer, Kwong Yu stated he employed the offender for 3 months on a casual basis in construction. He stated the offender expressed his remorse. He did not say what was said. I note the author of the Sentencing Assessment Report was unable to contact this person to confirm employment.  His aunt also wrote of her belief that the offender was very sorry for what he had done. She did not indicate what founded this belief. She said she relied on the offender for cooking, cleaning, and shopping. She did not indicate if there was other assistance available to her. I note the Sentencing Assessment Report indicates as at the time of writing there was limited contact with his family, and he had a brother. There is no suggestion that others could not care for his aunt.  

26. Remorse was also addressed in the psychological report of Dr Ming Lo Sze dated 28 November 2023. The psychologist indicated he had four appointments with the offender after a referral to manage ‘risky behaviour’. The offender’s not unexpected anxiety over the sentencing outcome was noted. It was opined this would likely resolve once the matter was finalised.  It was recorded that he seemed oblivious to a legal duty to comply with the law, regarding his offences as minor and not causing harm. This statement does not present as being limited to the index offending. The psychologist stated that after three sessions the offender indicated he was remorseful. The three sessions were after the offender’s letter. The offender had attended the initial assessment prior to writing his letter.  

27. The offender also participated in the preparation of a Sentencing Assessment Report. This report is dated 8 September 2023. The offender advanced he was involved in the offending for financial gain and that he became involved after being told he could make a large sum of money. He said it would assist in repaying his mortgage. He said he initially did not know he would be cultivating cannabis and he did not know his behaviour was illegal. The author opined the offender had limited insight into the impact of his offending. I do not accept the offender’s account he was unaware his conduct was illegal.  

28. The offender owned the island from 2014 with two others. The option of selling his interest in the island was not addressed in the tendered material. 

29. The untested hearsay claim of remorse to the psychologist and others and the offender’s own letter is insufficient to find on the balance of probabilities the offender is genuinely remorseful. This is informed also by his attempts to minimise his participation. The agreed facts nominate he was both involved in the cultivation and that he participated in discussions and planning with his co-offenders. 

30. I do not overlook that the offender was involved before he entered custody and resumed his involvement upon release. Even being held in gaol did not cause him to desist. I am satisfied he sought to minimise his involvement in his letter and when speaking to report authors. The psychologist assessed the risk of reoffending to be low-moderate, with a need for regular supervision to monitor his behaviour and continued psychological treatment to address stress and decision making. Community Corrections assessed the offender as falling in the medium-low risk of reoffending resulting in any court order for supervision only to involve monitoring. Previous supervised orders resulted in ‘varied’ responses, with compliance and then breaches by further offending. Although financial imperative was provided to explain earlier offending, he declined financial counselling. When released to parole in June 2022 supervision ceased within a month. The continuing motivator for offending is financial. There has been no advance in addressing this causative factor. There is limited insight. There is no genuine remorse. Previous gaol sentences have not dissuaded the offender. I accept he has not reoffended since his release to parole in June 2022. I consider his prospects of rehabilitation and not reoffending to be poor. Personal deterrence continues to serve an important role.  

31. General deterrence and retribution are important considerations in drug related crime.  

32. The sentence should also recognise the harm done to the community. Drug offences are not victimless. Illegal drugs cause misery to users, their family, and the wider community. 

33. There has been no pre-sentence custody.  

34. Having considered all the possible alternatives, I am satisfied no penalty other than imprisonment is appropriate. Counsel for the offender submitted an Intensive Correction Order (ICO) would be appropriate. The sentence I have determined does not provide for the imposition of an ICO. 

35. It was submitted that I make a finding of special circumstances relying on a number of factors set out in the submissions. Most are not relevant to this consideration. I decline to make a finding of special circumstances.  

36. The offender is convicted. 

37. After reducing the sentence by 25%, the sentence imposed for the cultivate offence, taking into account the offence on the form 1, is one of 2 years and 2 months imprisonment with a non-parole period of 1 year and 7 months to date from today. The offender will be released on parole on 7 July 2025. 

38. This variation to the statutory ratio to 73% is a consequence of rounding down the non-parole period. No lesser sentence would address the offending.  

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Decision last updated: 12 December 2023