R v Quan; R v Zhang - [2014] ACTSC 385

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Quan; R v Zhang
Citation:	[2014] ACTSC 385
Hearing Date(s):	15 December 2014
DecisionDate:	15 December 2014
Before:	Murrell CJ
Decision:	Mr Quan sentenced to two years and three months’ imprisonment with a nonparole period of 14 months. Ms Zhang sentenced to imprisonment from 3 April 2014 to 18 December 2014.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Co-offenders – early guilty pleas – cultivate commercial quantity of controlled plant – deportation upon release
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code 2002 (ACT) s 616(3)(b)
Cases Cited:	R v Li; R v Jin [2014] ACTSC 304
Parties:	The Queen (Crown) Zhezhu Quan; Aifeng Zhang (Offenders)
Representation:	Counsel Mr M Fernandez (Crown) Mr W Lowe (First Offender) Mr G Jones (Second Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law agent for Ren Zhou Lawyers, Sydney (Offenders)
File Number(s):	SCC 142 of 2014; SCC 143 of 2014

MURRELL CJ:

Each of the offenders adhered to a plea of guilty entered at the earliest reasonable opportunity to an offence against s 616(3)(b) of the Criminal Code 2002 (ACT) (Criminal Code) of cultivating a commercial quantity of a controlled plant, being cannabis, believing that someone else intended to sell the plants or their products. Such an offence carries a maximum available penalty of 25 years’ imprisonment and/or a large fine.

Taking into account the pleas of guilty and other considerations under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the appropriate discount is 25 per cent.

The sentences will date from 3 April 2014, the date from which each offender has been in custody.

On 3 April 2014, police executed a search warrant at residential properties in Flynn. There they found a sophisticated hydroponic set up. Four makeshift rooms were hidden behind a false wall under the main level of the premises. The police found heat lights, exhaust fans, hosing and all the requirements to cultivate cannabis hydroponically.

The police located a total of 214 plants. Twenty-eight plants were approximately 60 centimetres in height, 74 plants were approximately 30 centimetres in height, and 112 plants were approximately 10 centimetres in height. In addition, the police located either 184 or 186 seedlings, each of which was about 5 centimetres in height. The seedlings are not classified as cannabis plants for the purpose of assessing the extent to which the commercial quantity is exceeded. However, the existence of the seedlings and other findings on the search warrant clearly show that the enterprise in which the offenders were engaged was an ongoing enterprise. Apart from the seedlings, police located a large number of root balls, bagged cannabis and loose cannabis some of which were apparently ready for sale. They also found $2000 in cash.

The operation bears some interesting analogies with an operation that was occurring in Evatt in relation to which I sentenced two Chinese nationals, Mr Li and Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACTSC 385
Decision Date: 15 December 2014

CaseChat Overview and Summary

The appellants, Mr Quan and Ms Zhang, were convicted for their involvement in cultivating a commercial quantity of cannabis. The case was heard in the Supreme Court of Victoria, where the sentencing of both individuals was contested. Mr Quan and Ms Zhang had both pleaded guilty early, which was taken into account by the court. The primary issues before the court were the appropriate sentences for each appellant, considering their respective roles in the crime and the fact that they had entered into early guilty pleas.

The court acknowledged that both appellants had taken responsibility for their actions by entering early guilty pleas, which typically results in a lesser sentence. However, the court also considered the seriousness of the offence, which involved cultivating a significant quantity of a controlled plant. The court noted that such activities have serious implications for community safety and drug-related crime. In assessing the appropriate sentences, the court balanced the appellants' early pleas against the gravity of the offence. The court determined that Mr Quan, who played a more significant role in the cultivation process, should receive a more substantial sentence. Conversely, Ms Zhang's role was deemed less significant, leading to a shorter custodial sentence. The court also considered deportation upon release for both appellants, reflecting the serious nature of their criminal activities.

Ultimately, the court sentenced Mr Quan to two years and three months' imprisonment, with a non-parole period of 14 months. Ms Zhang was sentenced to imprisonment from 3 April 2014 to 18 December 2014. The court's decision highlighted the importance of early guilty pleas in reducing sentences while also recognising the need to address the seriousness of cultivating commercial quantities of controlled substances. The orders reflect the court's consideration of the respective roles of the appellants and the need for appropriate deterrence and rehabilitation.

Orders

Orders of the court

Mr Quan sentenced to two years and three months’ imprisonment with a nonparole period of 14 months.

Ms Zhang sentenced to imprisonment from 3 April 2014 to 18 December 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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