R v Choo

[2021] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:

R v Choo [2021] NSWDC 351

Hearing dates:

17 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 26 months with a non-parole period of 13 months: at [20].

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty — Good character — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General deterrence — Maximum penalty — Objective seriousness

SENTENCING — Subjective considerations on sentence — Deportation Special circumstances — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug (Misuse and Trafficking) Act 1985

Cases Cited:

R v Huat [2021] NSWDC 87.

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Jim Choo (Offender)

Representation:

Ms S Foggo (Solicitor for the Office of the Director of Public Prosecutions)

Ms E Saunderson (Solicitor for the Offender)

File Number(s):

2020/168522

Judgment

1. Jimmy Choo is a native of Malaysia, currently aged 22. He came to Australia on a three-month tourist visa in October 2019 with his friends. He appears for sentence having pleaded guilty to one count of cultivate a prohibited plant in the large commercial quantity contrary to s 23(2)(a) of the Drug (Misuse and Trafficking) Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. The maximum penalty, the standard non-parole period and the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 are important factors to bear in mind in the sentencing process.

2. The offender pleaded guilty at an early opportunity, justifying a 25% discount on the term of imprisonment to be imposed and it is conceded by Ms Saunderson, who has very competently and efficiently prepared the case on his behalf, that a term of full-time custody is mandated in these circumstances.

3. The offence arises out of police attending a rural property at Marulan on 5 June 2020. At that time, this offender and Hong Wei Tan were arrested. Van The Nguyen ran from the location and after a foot pursuit he was arrested and returned to the scene.

4. A fourth offender, Tai Huat was not located at the property as he became aware of the police arriving and he ran and hid in a nearby forest. He presented himself to police three days later, after being advised by his mother to hand himself in. I sentenced Mr Huat in February this year to a term of imprisonment of 21 months with a non-parole period of 11 months, allowing for a total discount of 40% in his particular circumstances. It is agreed here that the notional starting point of Mr Huat’s sentence, namely 35 months, is an appropriate starting point for the sentence of Mr Choo, given that it is common ground that their roles were similar. See R v Huat [2021] NSWDC 87.

5. The property, according to the agreed facts is a hundred-acre property and there were nine poly tunnels, 50 metres long, containing a number of cannabis plants and cultivation equipment. In total, police found 2,443 plants. Choo told police after his arrest that he had been taken to the property by a friend more than two weeks ago. He said his role was to renovate the dwelling and the tunnels. He was unable to say how he was paid or by whom. He was asked about the secateurs found in his possession at arrest and claimed that he used them for his work and he denied touching or tending the plants.

6. It is agreed that between 15 May and 5 June 2020 at Marulan, he knowingly cultivated a number of cannabis plants by enhanced indoor means, in a quantity not less than the large commercial quantity applicable to a prohibited plant.

7. The offender has no convictions on his record in Australia. He has been in custody since his arrest on 5 June 2020. He prepared an affidavit with the assistance of Ms Saunderson which is of great assistance to the Court in setting out the subjective case, and if I may say so, perhaps of more utility than the lengthy psychiatric or psychological reports which the Court often sees.

8. He was born in Malaysia and he has two siblings. He had a pro-social upbringing in modest circumstances, working in a restaurant which was owned by his uncle after he finished school. He came to Australia with three friends on a tourist visa, with the aim of working and earning more money than he could in Malaysia and sending it home to his family. He was living with his friends in very cramped accommodation in Sydney with four of them living in a one-bedroom unit. He got a job in construction which he did for about five months. His visa expired after three months, he then applied for a refugee visa and he was on a bridging visa at the time of the offence.

9. Due to the COVID-19 pandemic the construction work petered out and a friend of his, who is also Malaysian, told him about a job on a farm. He said it would be maintenance on a farm shed. A Vietnamese man drove him to the property and that man stayed there when they arrived. He was told that he would be given food and accommodation and paid $10,000 a month which he thought was a lot of money, but all he thought was how much money he could send home. They never told him when he would be paid and he assumed it would be when the work was finished.

10. The Vietnamese man who took him to the property told him that his job was to maintain the shades and that he was to work from 7am to 5pm, have a two‑hour break in the middle of the day. He was to get on the roofs and mend any damage. There were three other people at the farm. They all stayed in a cottage on the farm sleeping on bunk beds, and the Vietnamese man would go out and bring food to those staying on the farm. He said he saw a number of plants in two sheds but he did not touch the plants.

11. Police attended the farm about two weeks following his arrival and arrested him. He describes having been in Parklea for about two months and then to the MSPC Correctional Centre. He has seen a lot of violence while he has been in custody, but he keeps his head down. He was working while at Parklea in the kitchen and doing painting work but he has not been able to work at the MSPC.

12. He is sharing a cell with another Malaysian man. He has been able to speak to his mother in Malaysia and naturally she is concerned about him and he will return to Malaysia to live with her once he is released.

13. Whatever the uncertainty about his visa situation, any prospect of him being deported on his release is irrelevant to the sentencing process.

14. As to objective seriousness, there is no dispute that the matter is below the mid-range, given that he was involved in tending a large commercial quantity of plants, some 2,400 plants in a sophisticated set-up with an intricate watering system using enhanced indoor means. The threshold for the large commercial quantity by enhanced indoor means is 200 plants. The Crown concedes that there is no evidence that he was involved in financing or establishment of the cultivation and acknowledges that he was recruited by another person.

15. The Crown concedes that he comes from a disadvantaged background as set out in his affidavit, and his time in custody will no doubt be more onerous than for someone with English skills and local family support.

16. General deterrence is of course a particularly significant matter to take into account, given that the courts have, on many occasions, stressed the need to bear in mind the social consequences of the criminal trade in prohibited drugs leading to corruption, undermining of legitimate businesses and serious levels of violence that is often involved.

17. Although he was promised money for his work, there was no evidence that he had received any payment.

18. I take into account his expressions of remorse, his pleas of guilty, and his previous good character. I accept that a finding of special circumstances should be made, given that this is his first time in custody. He has no prior record, and as I have indicated, his time in custody will be more onerous than for a local offender.

19. In terms of parity, as I have indicated, there is no real basis for distinguishing between the involvement of this man and Mr Huat.

20. The orders that I make are:

1. Plea of guilty confirmed.

2. The offender is convicted of the offence.

3. Taking into account a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 26 months, to commence on 5 June 2020.

4. I impose a non-parole period of 13 months, expiring on 4 July 2021.

5. I find special circumstances.

6. Sequence 2 (Found on/entering/leaving drug premises) is withdrawn.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 27 July 2021