R v Chu; R v Tang

[2021] NSWDC 768

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chu; R v Tang [2021] NSWDC 768

Hearing dates:

16 August 2021

Date of orders:

16 August 2021

Decision date:

16 August 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Chu - Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 2 years 2 months.

Tang - Sentenced to a term of imprisonment of 2 years 3 months. Non parole period of 1 year 5 months.

Catchwords:

CRIME - Cultivate large commercial quantity prohibited plant (cannabis);

SENTENCING- Relevant factors on sentence – guilty plea – role of offenders- uncontroversial personal histories

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Cases Cited:

GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22

Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432

Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54

Siwek v R [2017] NSWCCA 178

Category:

Sentence

Parties:

Dennis Chu (the offender)
Kim Seong Tang (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Booker (for the offender Tang)
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender Chu)

Solicitors:
Legal Aid NSW (for the offender Tang)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s):

2020/00140483 - Dennis Chu
2020/00140506 - Kim Seong Tang

sentence – ex tempore revised

1. The sentence proceedings for Dennis Chu and Kim Seong Tang were conducted by way of virtual court. As Tang is a Malaysian national whose first language is Mandarin Chinese, we employed an interpreter throughout the proceedings. As we are experiencing interruptions because of the inadequate NBN facilities in Wollongong I will keep this judgment as short as possible.

2. There are agreed facts before the Court. The prosecution have provided comprehensive written submissions. Mr Booker of counsel who appears for Mr Tang has provided detailed written submissions, as has Ms Parkes, solicitor advocate Legal Aid, for Mr Chu. Everyone has had an opportunity to speak to their submissions.

Agreed facts

3. On 11 May 2020 Wollongong Drug Unit Police went to a rural property in Albion Park Rail. There were sheds and a number of large commercial style plastic greenhouses on the property. Inside one of the sheds were large living quarters with a kitchen, washing machine and tables. There was also an office with bunk beds, a mattress and a CCTV monitor. The monitor showed screen images of the shed and the greenhouses. Another shed held more mattresses and plastic drums of grow chemicals and soil additives. In that shed were, drying racks, fans and carbon filters and a box of cannabis stem remnants.

4. In four of the greenhouses and in a shipping container were a large number of cannabis plants. Just over 1,600 were mature plants, the rest were in various stages of growth. It is estimated that the value of the crop wholesale would be over $2,000,600. The extent of the operation is shown in the photographs and the videos put before the Court.

5. Both offenders were arrested at the premises on 11 May 2020. DNA matching Tang’s profile was found on a glove located in a greenhouse. Police found him working near an irrigation tank in one of the greenhouses. He was arrested. He told police that he did not speak English but that he understood he was in “big trouble.” At the police station he was allowed the services of an interpreter, but he said he did not wish to be interviewed.

6. Mr Chu had been seen by police at the premises on the morning of 11 May 2020. He left and then returned about an hour later through a locked gate. After he returned police found him near some large water containers on the southern side of the big shed. When spoken to by police Chu denied any knowledge of the cannabis plants. It is now accepted, however, that the property was subject to a number of leases and that Chu dealt with one of the tenants from approximately December 2019. This included his inspections of maintenance of equipment on the property, including pumps and irrigation from the creek.

7. Both Chu and Tang have been charged with cultivating a large commercial quantity of prohibited plants, s 23(2)(a) Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years imprisonment, and there is a standard minimum non-parole period of ten years for offences which fall, taking into account objective factors only, in the middle of the range. The large commercial quantity is 1,000 plants.

Objective seriousness - role

8. It is obvious that somebody went to a lot of time, trouble and expense to set up this commercial enterprise. It is notorious that the people who make such investments and expect large profits employ others to do the hard physical work and take the risk, should the enterprise be discovered by police.

9. The prosecution accept that they cannot establish beyond reasonable doubt that either of the offenders for sentence today are the principals in this cultivation enterprise. Simpson J, in Nguyen v R [2011] NSWCCA 92; (2011) 208 A Crim R 432, helpfully set out categories that might allow a court to determine the role and scope of an offender’s participation in a cultivating a large commercial quantity of cannabis enterprise. Her Honour said, at [4], that a principal’s role might involve:

• Contributing financially to the cost of setting up the operation;

• Standing to share in the profit (as distinct from receiving payment);

• Having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day-to-day operation, they nevertheless maintain considerable control over the enterprise);

• Having some decision-making role (which may not be different from the item above).

None of those matters could be proved here beyond reasonable doubt.

10. A judge's capacity to find facts will be affected by the evidence. In the case of a plea of guilty, where those facts are admitted formally in an agreed statement of facts, there may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case: GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54, matters in mitigation must be established on the balance of probabilities; s matters in aggravation of penalty must be established beyond reasonable doubt. The High Court recognised that sometimes a sentencing Court must sentence according to what is known or agreed.

11. Both offenders spoke to a social worker/psychologist with Legal Aid and gave them their versions of how they came to be involved in this enterprise. Neither offender gave evidence on oath in this Court so that their versions could be tested or examined further. I will make my determination as to the role of the offender based upon the agreed facts and the logic of material put before me.

12. The defence submit that I should sentence the offenders consistent only with their role proved to the requisite standard. They submit that neither offender should not be sentenced solely or even significantly based upon the sophistication and extent of the enterprise. That said, it is accepted that the number of plants and the size of the enterprise was a significant one, and that both offenders chose, for some reward, to involve themselves in this enterprise. Both offenders must have been aware how many plants there were and how sophisticated the operation was.

13. One reason we have such a large maximum penalty and large standard minimum is to discourage anyone from getting involved in such an enterprise.

14. So far as Tang is concerned the only evidence about his role indicates that he was employed to tend to the plants. There is no evidence to show for how long he was involved.

15. So far as Chu is concerned, he had had a role at the property from November 2019 until arrest in May 2020. He had keys to the premises and he had been provided with a vehicle to use as part of his employment. He had enough knowledge of the enterprise to engage in discussions with the leasee about the property and its irrigation.

16. Those facts mean that because their proved roles differ a greater penalty must be imposed on Chu because his role is objectively greater.

17. Giving proper weight to the maximum penalty, the standard minimum and the other purposes of sentencing requires custodial sentences of some length be imposed on both offenders.

18. I am quite sure that the time already spent in custody since their arrest on 11 May 2020 will deter each of the offenders from involving themselves in crimes like this ever again. But sentences must also by their severity try and discourage other people from doing what Tang and Chu did. The sentence must also take into account the individual circumstances of each offender.

Tang

19. Tang’s personal history is set out in an extensive Psychosocial Assessment Report of Ms Seers: Tang exhibit 1. I will take it into account. Tang was born in Perak, Malaysia. His family life appears to have been good, but his family did not have much wealth. He left school when he was very young and commenced work in the tin mines. He has worked in Malaysia, Singapore and the Middle East. He has a number of work skills.

20. He came to Australia in 2013 on a tourist visa. He has lived and worked in this country ever since. As an illegal immigrant he was unable to access any COVID payments when the pandemic began. As an illegal immigrant he was not in a position to work or access social security. As Ms Seers report notes:

“Mr Tang has demonstrated his capacity to maintain employment and participate as a law-abiding citizen until 2020 when the consequences: of a global pandemic forced him to make a difficult decision. Mr Tang’s experience is not unique. A report by Ms Laurie Berg, Associate professor in Law at UTS Sydney, and Ms Bassina Farbenblum, Associate professor in Law at UNSW Sydney, and Director of UNSW Humans Rights Clinic3, showed that during COVID-19, in particular from March 2020 onwards, international students and other migrants struggled to meet their basic living needs such as food, medical care and rent. It was difficult for such individuals to return to their home countries, as advised by the Prime Minister at the time, due to reduced flights, closed international and state borders and the high cost of the flights and quarantine. This population was also denied any governmental support, with individuals often relying on charities or emergency support for their essential needs. The study found that, as a consequence, migrants in Australia were more willing to work in dangerous or exploitative workplaces and were often performing work for food or housing rather than wages. Many migrants feared seeking formal support due to perceived consequences for their visa status and possible deportation. The lack of governmental support for people like Mr Tang during the first few months of the pandemic is likely to have resulted in individuals engaging is behaviours that they perhaps would not ordinarily consider.” At [11.2].

21. I am prepared to accept that Tang accepted the offer of payment to look after illegal plants. Through Ms Seers he indicates acceptance and responsibility for his actions.

22. All of the material before me indicates that Tang is otherwise a hardworking, prosocial person. He will almost inevitably be returned to Malaysia when he serves his minimum period of custody. It is accepted by all that that fact should not influence this sentencing determination.

Chu

23. The evidence establishes that Mr Chu was at the premises for a longer period and had more of a management role in the enterprise. His subjective circumstances appears relatively uncontroversial. They are set out in a Psychosocial Assessment Report of Mr Bembrick: Chu exhibit 1.

24. Mr Chu was born in Australia in 1968. His family came to this country from Guangzhou in China. Both of his parents worked as market gardeners. He had a settled childhood. He had the benefit of attending a selective high school where he was a prefect. At the time he experienced the racism of other schoolboys. But he was able to; matriculate, to obtain a Bachelor of Commerce degree, become a certified practising accountant, and obtain employment in a number of responsible positions.

25. It appears, and is consistent with the work history provided, that after the death of his mother he lost some direction. It is also clear from the material before me which I can accept, that he had developed a considerable problem with gambling. All the money he had earned or inherited it appears went to fuel this addiction. And even though he, at his family’s direction, attended problem gambling programs, his addiction persisted.

26. He says to others, and it would appear consistent with the logic of events that his gambling addiction explained why he committed this offence. He is a person whose criminal record contained basically only traffic matters and is otherwise a person of good character. But as a matter of law a gambling addiction and people’s actions in relation to it cannot reduce their moral culpability, and do not warrant an extension of leniency. That said, efforts to overcome the addiction can reflect on their prospects of rehabilitation: Siwek v R [2017] NSWCCA 178.

27. He reports having a problem with diabetes and high blood pressure. He is being given medication. The management of a condition such as diabetes is notoriously difficult while a person is in custody; not impossible, as obviously Justice Health will do what they can. But prisoners, particularly during the COVID pandemic are locked in their cells and cannot get the exercise or nutrition required for such a condition; a matter I can and should take into account.

28. Through Mr Bembrick he indicates acceptance and responsibility for his actions. On release he has family with whom he can reside. He has a plan in place to attend the St Vincent’s Gambling Treatment Program. If his past prosocial activities are repeated on release there is every prospect he will never offend again, let alone come back into custody. But he must be appropriately punished.

Synthesis

29. As indicated at the beginning I have had the benefit of the submissions in writing and orally. It is clear and accepted by Mr Chu that he must be punished. It is also accepted by Mr Tang that he must be appropriately punished.

30. I must synthesise and balance a number of important factors. The harsh punishments inflicted on many others did not deter these two offenders from doing what they did. And I have no way of punishing those who intended to make significant profits from this enterprise. As is often the case I am left with those who were at the premises when police arrived, people whose roles were significantly less than that of the principal.

31. I have to have proper regard to the maximum penalty and the standard minimum. But here there must be significant variation from those maximums and minimum. The reasons being, the roles of the offenders, as proved beyond reasonable doubt and their individual subjective cases; which here, on balance, establish both are fundamentally prosocial men who have committed one serious offence and are unlikely to commit another.

32. Their good prospects for the future mean I can reduce the minimum time they have to spend in custody. Their early guilty pleas mean I must reduce the otherwise appropriate sentence by 25% for the utilitarian or practical value of that guilty plea. Their early acceptance of responsibility is also a measure of their remorse or regret for what they did.

Orders

33. Both offenders are formally convicted of the offence.

Dennis Chu

34. Mr Chu, had it not been for your plea of guilty a sentence of four years, six months would have been imposed. That means I will be imposing a sentence of three years and four months imprisonment.

35. The formal order of the Court is, taking into account a finding of special circumstances, you are sentenced to a term of imprisonment of three years four months consisting of a non-parole period of two years two months to commence on 11/05/2020 and expire on 10/07/2022.

36. You will be eligible for consideration for release to parole on 10/07/2022 to serve the balance of term of one year two months to commence on 11/07/2022 and expire on 11/09/2023.

Kim Seong Tang

37. Mr Tang, had it not been for your plea of guilty a sentence of three years would have been imposed, leaving a sentence of two years and three months. There will be a non-parole period of one year, five months commencing 11 May 20, release to parole 10/10/21. There will be a parole period of ten months and the total sentence will end on 10 August 22.

38. The total sentence therefore is 2 years 3 months, comprising the non-parole period and the balance of the sentence.

39. Mr Tang, I am not a judge with any powers relating to immigration, but I would expect the immigration authorities would take steps to remove you from the country when your minimum sentence period expires on 10 October 2021.

40. AUDIO VISUAL LINK CONCLUDED AT 12.19PM

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Amendments

30 March 2022 - Typographical only

Decision last updated: 30 March 2022