R v Huat

[2021] NSWDC 87

District Court

New South Wales

Medium Neutral Citation:

R v Huat [2021] NSWDC 87

Hearing dates:

04 February 2021

Date of orders:

04 February 2021

Decision date:

04 February 2021

Jurisdiction:

Criminal

Before:

ML Williams SC DCJ

Decision:

A term of imprisonment of 21 months with a non-parole period of 11 months: at [12].

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Maximum penalty

SENTENCING — Subjective considerations on sentence — Age of offender — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Ha [2004] NSWCCA 386

R v Ellis (1986) 6 NSWLR 603

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Tai Huat (Offender)

Representation:

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

Mr E James (Counsel for the offender)

File Number(s):

2020/169948

Judgment

1. Mr Tai Huat is a 21 year old Malay man who came to Australia in late 2019, when he was in his late teens after finishing high school in Malaysia. He worked in Australia as an electrician and then got a job at the recommendation of friend, growing cannabis.

2. On 5 June 2020, Police attended a site at Marulan where they discovered a cannabis plantation with a total of 2,443 plants. It was on a large rural property with a number of tunnels constructed for the growing of the cannabis. Other people were arrested at that time but the offender took himself to Goulburn Police Station three days later and volunteered that he had been involved in the cannabis plantation.

3. In an interview with Police he said that he expected he could earn $20,000 a month but he had not been paid anything and he was given a place to stay and food. He worked from 7am to 5pm watering,feeding and tending the plants.

4. His mother encouraged him to hand himself into Police. He had run away and hidden in the forest when he became aware that police attended on 5 June 2020. He had searched online about cannabis after he took the job and he discovered that it was illegal, but he needed the money.

5. He has no criminal record. He has pleaded guilty and is entitled to a 25% discount for the utilitarian value of the plea. It is conceded that fulltime custody is required and I need not consider any alternatives.

6. I accept that a further discount of 15% in accordance with the decision in R v Ellis (1986) 6 NSWLR 603 should be allowed by reason of his surrender and volunteering information to the police. A total of 40% discount will be applied to the term of imprisonment which will commence on the day of his arrest, 8 June 2020.

7. There is a psychological report which sets out an uncontroversial history of his background and notes that there were no psychological, mental or other medical difficulties.

8. In terms of objective seriousness, he was involved in tending a large commercial quantity of 2,443 plants in a sophisticated setup and the cultivation was by enhanced indoor means. The threshold for a large commercial quantity is 200 plants, but the Crown concedes there is no evidence that he was involved in the financing or establishment of the cultivation and he was approached by another person to tend the plants and perform general maintenance. I accept that the objective seriousness of the matter is below the midrange. The maximum penalty of 20 years imprisonment and the standard non-parole period of ten years are important yardsticks, and I will consider the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999.

9. As the Courts have said on many occasions such as in R v Ha [2004] NSWCCA 386, the social consequences of the criminal trade in prohibited drugs are very substantial, including corruption, undermining of legitimate businesses and a serious level of violence.

10. Mr James, of counsel for the offender, concedes that general deterrence has a significant role to play.

11. I note that none of the co-offenders have yet been sentenced so no question of parity arises. I accept that special circumstances should be found given his youth, the fact that this is his first time in custody and his time in custody will be rendered more difficult by the language barrier and the lack of family support. As Mr James said, there are no aggravating factors beyond that usually associated with this type of offence, and there are a number of mitigating factors which I accept, namely the plea of guilty and his prospects of reoffending appear to me to be low in the light of a salutary lesson that he has learned from his time in custody.

12. The orders I make are:

1. The offender is convicted of the offence.

2. Taking into account a discount of 40% (25% for the plea of guilty & 15% for assistance), I impose a sentence of imprisonment of 21 months, to commence on 8 June 2020.

3. I impose a non-parole period of 11 months, expiring on 7 May 2021.

4. I find special circumstances.

13. Mr Interpreter, just making sure, so he is eligible for parole on 7 May this year.

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

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Decision last updated: 25 March 2021