R v Ho

[2019] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ho

Citation:

[2019] ACTSC 41

Hearing Date:

22 January 2019

DecisionDate:

22 January 2019

Before:

Burns J

Decision:

See [14]-[15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  cultivate a commercial quantity of a controlled plant – plea of guilty – offender provided information to police – no criminal history – considerable degree of remorse  

Parties:

The Queen (Crown)

Trong Tan Ho (Offender)

Representation:

Counsel

Mr J Hiscox (Crown)

Mr J Moffett (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

TQH Lawyers (Offender)

File Number:

SCC 256 of 2018

BURNS J

1. Mr Ho, you have entered a plea of guilty to one charge that on 3 July 2018 you did cultivate a commercial quantity of a controlled plant believing that someone else intended to sell any of the plants or their products.

1. An agreed Statement of Facts has been placed before the Court. I will not recite the Statement of Facts. It is sufficient to know that you were paid or were to be paid $1000 a week to be the caretaker of a cannabis grow house in which 260 plants and other loose cannabis matter was located, comprising a combined total weight of just over 263 kilograms.

1. You had been involved in this offence for about one month. The maximum penalty for this offence is 25 years' imprisonment, a fine of $375,000 or both. You entered a plea of guilty to this charge in the Magistrates Court on 2 October 2018. I accept that your plea of guilty had significant utilitarian value and also demonstrated a degree of remorse on your part.

1. I will reduce the otherwise appropriate sentence by 20 per cent in order to reflect your plea of guilty. It is clear that the cultivation with which you were involved is a very sophisticated operation. It involved a large quantity of plants of potentially very significant value. It is also important to note that your involvement in this offence continued for a period of one month.

1. Whilst it may be that your involvement was opportunistic, it cannot be said to have been a spontaneous action. There was clearly an element of premeditation involved in your continued involvement in this offence.

1. I accept from the material which is before me that this is out of character for you. I accept that you became involved because you wanted to earn money quickly due to gambling debts. It is a very significant matter, in my opinion, that you provided information to the police, in particular, naming those that you say employed you.

1. Those who set up grow houses such as these frequently attempt to distance themselves from the physical evidence of the offence by employing people, such as yourself, so that if the premises are located by the police, it is the caretaker who will be arrested and not them. It is the usual case that those who are, like yourself, employed as a caretaker are unwilling to name those who employed them, and as such general deterrence is a very significant sentencing consideration.

1. In the present offence, the fact that you have provided information to the police makes you different to the ordinary offender who is usually involved in this sort of offence. In my opinion, it reduces the need for general deterrence as a sentencing consideration in this matter.

1. I take into account your limited role in this cultivation. You were not to share in the proceeds or profits of the cultivation, you were nevertheless an important participant.

10.  I take into account the material which has been put before me from your family and employer and those other people who provided references. I note that you have a good work history and you are described as being a good husband and father.

11.  I accept that a term of full time imprisonment is likely to have a significant effect upon your wife and child as you are the only income earner in your family. By itself, that does not carry significant weight but it is something that I take into account.

12.  I also note you have no criminal history. The Crown has provided me with a number of previous cases in which sentences of imprisonment have been imposed with regard to similar offences. The Crown has submitted that a sentence of full time imprisonment is appropriate. None of the previous cases referred to by the Crown are exactly the same as the present case, but I accept that those cases indicate that ordinarily a term of full time imprisonment is appropriate.

13.  It has been conceded by your counsel, and rightly so, that a term of imprisonment is appropriate but your counsel has submitted that the requirements of sentencing may be satisfied by a wholly or partly suspended sentence. I am satisfied that a suspended sentence will be appropriate in these circumstances. You have demonstrated a considerable degree of remorse with respect to this offence. You made admissions to the police when you were arrested, you subsequently provided assistance to the police about those with whom you were involved in this offence, and you entered a plea of guilty at a relatively early stage.

1. My starting point is a sentence of three years' imprisonment but I will reduce that to two years and four months' imprisonment by reason of your plea of guilty. That sentence will commence two days ago, on 20 January 2019, in order to take into account the two days you spent in custody before your sentence, and it will expire on 19 May 2021.

15.  The sentence will be fully suspended with a Good Behaviour Order for a period of three years with the conditions:

(a)that you are to accept the supervision of the Director General for a period of two years or such lesser period as may be determined by your supervising officer and you are to undertake such counselling or treatment or programs as directed by your supervising officer;

(b)secondly, you are to report to ACT Community Corrections on level 1 of 249 London Circuit within 48 hours of signing your Good Behaviour Order undertaking.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: