R v Tan

[2021] NSWDC 355

District Court

New South Wales

Medium Neutral Citation:

R v Tan [2021] NSWDC 355

Hearing dates:

14 May 2021

Date of orders:

14 May 2021

Decision date:

14 May 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 29 months with a non parole period of 14 months: at [10].

Catchwords:

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

SENTENCING — Penalties — Imprisonment

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

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Drugs (Misuse and Trafficking) Act 1985

Cases Cited:

R v Huat [2021] NSWSDC 87

R v Choo [2021] NSWDC 351

Category:

Sentence

Parties:

Regina (Office of the Director Public Prosecutions)

Hong Tan (Offender)

Representation:

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

Mr H White (Counsel for the Offender)

File Number(s):

2020/168537

Judgment

1. Hong Tan, a 32 year old Malaysian man came to Australia in 2015, to undertake work and study. He comes before the Court as the third person sentenced by me in relation to a substantial cannabis plantation located on a rural property in Marulan. See R v Huat [2021] NSWSDC 87 and R v Choo [2021] NSWDC 351.

2. He pleaded guilty on arraignment in the District Court in circumstances justifying a 10% discount on the term of imprisonment. He has been in custody since his arrest on 5 June 2020. Mr White concedes that full time custody is the only appropriate sentence.

3. Mr Tan has been charged with an offence of cultivate a large commercial quantity of a prohibited plant, namely cannabis contrary to s 23(2)(a) of the Drugs (Misuse and Trafficking) Act 1985 carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.

4. Police attended the property at Marulan on 5 June 2020 where Choo and Tan were arrested. They were standing at the end of a polytunnel sorting bamboo sticks. They were told to lie on the ground. Mr Nguyen ran from the location and, after a foot pursuit, he was arrested and brought back. Mr Huat was not located as he ran away, but he presented himself to police three days later.

5. The property was 100 acres, with nine polytunnels, 50 metres long with 2,443 cannabis plants growing.

6. The differentiating factor here is that Choo was sentenced on the basis that he expected to be paid $10,000 a month, whereas Huat said that he expected to be paid $20,000 a month, and Mr Tan was not promised any financial reward, on the unchallenged evidence today.

7. He is a man of good character with no prior convictions. He was tending a large commercial quantity of plants in a sophisticated system by enhanced indoor means. The quantity was well in excess of the threshold of 200 plants for a large commercial quantity. The Crown concedes there is no evidence that he was involved in the financing or establishment of the plantation.

8. As the Crown points out, general deterrence is a significant factor and parity of sentence is also a factor here.

9. The reasons for the plea on arraignment, which was later than the co‑offenders, are not apparent but there is no suggestion of any delay, or any intention to plead not guilty, at any stage in this case.

10. I think there is significant substance in Mr White’s submission that the lack of promised financial reward is a significant differentiating factor here and I therefore make the following orders.

1. He is convicted of the offence.

2. I impose a sentence of 29 months imprisonment commencing 5 June 2020.

3. I impose a non-parole period of 14 months expiring 4 August 2021.

4. I find special circumstances, on the basis that this is his first time in custody and his conditions of custody would be more onerous than for a native English speaker.

11. WHITE: That was 4 August, your Honour?

12. HIS HONOUR: Yes, is that right? That is 14 months.

13. WHITE: Thank you, your Honour. If the link could be restored after your Honour adjourns I can explain to him what has happened as well?

14. HIS HONOUR: Right, thank you. Nothing further, Ms Crown?

15. FOGGO: Well before your Honour goes, if it hasn’t already occurred, sequence 2, so the matter on the s 166 certificate, is withdrawn, if that’s not already taken place, your Honour that was a back-up offence.

16. HIS HONOUR: I see. Sequence 2 will be withdrawn.

17. FOGGO: Thank you, your Honour.

18. HIS HONOUR: We will just leave it open. I will adjourn and you can talk to him here.

19. WHITE: Thank you, your Honour.

Note – These extempore remarks have been revised without access to the court file.

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Decision last updated: 27 July 2021