R v Tran

[2022] NSWDC 357

District Court

New South Wales

Medium Neutral Citation:

R v Tran [2022] NSWDC 357

Hearing dates:

18 July 2022

Date of orders:

18 July 2022

Decision date:

18 July 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Enhanced indoor cultivation — Knowingly take part in enhanced indoor cultivation

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

Legislation Cited:

Crimes (Sentencing Procedure) Act1999

Crimes (Sentencing Procedure) Act1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act1999, number 1 of 2002 [2002] NSWCCA 518

Callaghan v R [2006] NSWCCA 58

DPP for the Commonwealth v De La Rosa (2010) 79 NSWLR 1

Imbornone v R [2017] NSWCCA 144

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Ha Thi Tran (offender)

Representation:

Felicity Evans (Solicitor for the ODPP)
Robert Steward (Counsel for the offender)

Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2021/00183728

REVISED EX TEMPORE JUDGEMENT

Introduction

1. The offender in this matter is Ha Thi Tran. She pleaded guilty in the Local Court to three offences, each of them an offence contrary to s 23(1A) Drug Misuse and Trafficking Act 1985, shortly described as knowingly take part in the cultivation of cannabis for commercial purposes by enhanced indoor means. In each case the maximum penalty specified is imprisonment for 15 years with a fine of $385,000.

2. The offences upon which sentence is to be imposed are respectively sequences 17, 19 and 22. When I sentence her for the offence charged as sequence 17 she asks that three additional offences be considered. These are also offences of knowingly take part in the cultivation of cannabis for commercial purposes by enhanced indoor means contrary to the same provision. Thus the offences before me involve six separate premises where cannabis was cultivated in the fashion alleged.

Pleas of Guilty

3. The offender pleaded guilty in the Local Court and adhered to her pleas of guilty in this Court when she was taken to each of the charges upon which sentence is to be imposed. She is therefore entitled to a discount of 25% to the sentences that might otherwise have been identified for each of the charges. This prosecution attracts the application of s 25D(2)(a) Crimes (Sentencing Procedure) Act1999, specifying the discount for utility of 25%.

4. The offender not only adhered to the pleas of guilty earlier entered to the principal offences, but in addition for the further offences to be considered when I determine sentence for sequence 17 she confirmed her wish that each of the offences charged as sequences 18, 20, 21 respectively be taken into account and admitted that she is guilty of those offences.

Pre-Sentence Custody

5. She has been in custody since her arrest on 28 June 2021 however not all her pre-sentence custody has been the product of the index offences because she was at liberty under the terms of an intensive corrections order extended to her in respect of her earlier participation in the cultivation of cannabis. The intensive corrections order was revoked effective from 29 June 2021, the day after her arrest. The balance of the intensive corrections order expired on 8 June 2022.

6. There is therefore a decision to be made as to when I should commence the aggregate sentence I shall impose in this case. It must be acknowledged that she might well have been able to seek the reinstatement of the intensive corrections order had she not engaged on misconduct with which she is presently charged. I accept that the discretion discussed by Justice Simpson in Callaghan v R [2006] NSWCCA 58 applies in the present circumstances.
   I have come to the view that the sentence to be imposed today should commence on 29 December 2021. There will be therefore some measure of accumulation upon the past sentence, bringing to bear the principle of totality, reflecting the entirety of the misconduct upon which the offender has engaged, including that which led to the revocation of the intensive corrections order, and the misconduct upon which I am to impose sentence today.

The Facts

7. The facts upon which sentence is to be imposed are set forth in the agreed statement which has been adopted by the offender. This tells me that she is now 30 years of age. Her apprehension took place upon the execution of six search warrants by police from Bankstown. The warrants were for six separate premises throughout the southwestern area of Sydney. In all those premises there was the cultivation of cannabis by enhanced indoor means. In all, 982 cannabis plants were seized.

8. The properties were located at Rydalmere, Berala, Carlingford, Ermington, Eastwood, and Campsie.

9. Sequence 17 is in respect of the Berala premises where 230 plants were found. Sequence 19 is in respect of the Carlingford premises, where 202 plants were found and sequence 22 is in respect of the Campsie premises where 151 plants were found.

10. The remaining sequences for offences to be considered when sentence is determined on sequence 17 are in respect of the Rydalmere premises where 91 plants were found, the Ermington premises where 114 plants were found, and the Eastwood premises where 194 plants were found.

11. The offender knowingly took part in the cultivation in each case by facilitating the rental of the properties where the cultivations were undertaken. She used false identification information and held herself out to be a person of the name Jessie Wang, or Wen Xin Guo. She used false documents to disguise her identity and prevent detection. She so engaged knowing that the houses would be used to grow cannabis by enhanced indoor means. Though she was not aware of the total number of plants that were to be cultivated in each of the premises, she was aware that they were being undertaken for a commercial purpose.

12. Sequence 22 is a matter upon which sentence is to be imposed. It relates to the Campsie premises. The owners of the property purchased the premises for investment purposes. It consisted of a single-story corner block with four bedrooms, a pergola, and a toilet in the back with access through the double gates on Lincoln Street. At the end of December 2020, the property was advertised for rent on websites. It was advertised furnished. The property was offered for a one-year rental at $750 per week to be managed by the owners. The owners were a married couple. A woman contacted the wife and introduced herself as Jessie Wang. This was the offender. She told the wife that she was at that time living with several males, was not comfortable with that, and was looking to move immediately. The offender attended the property on 25 January 2021 to inspect it and sign a lease. The offender negotiated with the wife, settling on $720 per week rent. They added particulars onto each of their WeChat accounts. Not long after the offender contacted to say she wanted to rent the property and requested bank details from the wife. Later that evening, the offender contacted the wife and asked if all the beds, apart from one, could be removed before she moved in. She sent the copy of a driver’s licence and a Medicare card in a false identity. She met with the owner on 25 January 2021 and signed a tenancy agreement and produced a licence and Medicare card in the false name Jessie Wang. The rent was paid on or about the 24th of each month. There is no evidence that it was the offender who made these payments.

13. The wife and husband were contacted one day by a neighbour who said that he was concerned because there was never any light on in the house and he’d seen people on the roof doing electrical work. The owners reported this to the police and they sought further information about the individual Jessie Wang. The wife messaged the offender on 24 June 2021 requesting that she initial pages of a tenancy agreement which was required to refinance the property. There was an arranged meeting at a McDonalds store at Hurstville at 1.30pm on 25 June 2021. This was observed and electronically observed by police. There are images of the offender when she attended this meeting.

14. Of note is that she was wearing a black facemask, she refused to touch the pages of the document that she was asked to initial, she asked the owner to turn the pages for her, and she avoided touching the pen.

15. The offender left the McDonalds through the driveway where she was identified by the police with the opportunity to see her. She entered a motor vehicle registered to her and further enquiries of Roads and Maritime Services gave access to her licence photo matching the person the police had under surveillance at this meeting. The offender was captured on closed-circuit television entering and exiting the McDonalds restaurant where the meeting occurred.

16. The husband of the couple who owned the property attended the premises on 29 June 2021 after contact was made by police and noted significant damage to the ceilings, floors and plumbing of the premises.

17. On 28 June 2021, the police executed a crime scene warrant. They located in the Campsie premises 151 hydroponically grown cannabis sativa plants in black pots. The Crown concedes that it cannot prove beyond reasonable doubt that the offender was aware of the number of the cannabis plants cultivated. She was aware that the premises were intended to be used for cultivation of cannabis plants by others for a commercial purpose.

18. 139 of these plants were under one metre in height, 12 were over one metre. There was a sophisticated watering and lighting system in place. There were 48 lightshades, 53 globes, 108 transformers and six power boards. Officers from Ausgrid located an illegal electricity bypass which was using unmetered energy for this enterprise. There was no evidence that the offender was responsible for that bypass.

19. Sequence 19, a matter upon which sentence is to be imposed, concerned the Carlingford premises. The owner purchased that property as an investment. The owner had never resided in it. It was a two-story building with four bedrooms and an attached garage on the ground floor with an attic. Access was gained through a balcony on the first floor.

20. Around 22 October 2020 the owner advertised the property on a Chinese based website where properties were advertised privately and usually managed by the home owner. The property was advertised for a year-long lease at $700 per week. On 25 October 2020 the owner received a message from a female making enquiries for her and four family members to reside in the house. She called using a mobile phone, the number is particularised in the facts.

21. There was a telephone number also particularised in the facts describing the conduct relevant to the Campsie premises. There is no need for me to repeat the number here at the present time.

22. The woman provided the name “Guo”, one of the false names used by the offender. On 28 October 2020 the offender met the owner at the address in Carlingford and inspected the premises. She provided the name Wen Xin Guo and attended with an older Asian female. The owner met the offender at the Ashfield shopping mall on 30 October 2020. There the offender provided a Medicare card and licence in the false name. These were photographed by the owner using her phone. The offender also provided a document purporting to be from a dog grooming salon where she said she was working. She signed the lease on 7 November 2020. The owner said she would inspect the property every few months and the offender requested that the owner provide notice before attending. The rent was to be paid into the owner’s bank account once per month.

23. The owner messaged the offender on 28 January 2021 after the rent was not paid. The offender asked to pay in cash for the month, the owner agreed. The owner suggested they meet at Ashfield mall again but the offender refused to go into the mall and asked to meet at an address on Liverpool Road, Ashfield. The owner asked to complete an inspection but the offender refused on the basis that she did not want anyone in her house due to COVID-19.

24. The owner contacted her neighbours on 2 March 2020 to ask about the house and was told that they had not seen anyone there and that the lights were usually off at night. The owner attended the property on 2 March 2020 to inspect it and noticed a sensor alarm which activated when she walked past the garage. She noticed damage to the garage door, curtains were drawn, the house was dark inside. The owner messaged the offender and asked to inspect the property. The offender refused the inspection. The owner then gave seven days’ notice for the offender to move out.

25. The owner visited the property on 3 March 2021 to deliver the notice. The owner noticed that the kitchen ceiling fan was in the shed and that other pieces of timber were strewn on the grass.

26. Paras 33 to 34 in the agreed facts refer to 2 March 2020. This is an error and should be read as 2 March 2021 in each case.

27. The offender visited on 3 March 2021 and noticed a ceiling fan in the shed and other pieces of timber strewn on the grass. The owner was notified by her neighbour that the police were on the property on 4 March 2021, the owner noted damage to her home.

28. On 4 March 2021 the police executed a crime scene warrant at the address and located 202 hydroponic deep grown cannabis sativa plants in black pots. The Crown concedes that it cannot prove beyond reasonable doubt that the offender knew the exact number of plants that were being cultivated in these premises but that she did know that the cultivation was a commercial purpose.

29. The plants were 108 under one metre in height, and 94 over one metre in height. There was a sophisticated watering and lighting system in place. There were electricity diversions at the property, but there is no evidence though that the offender was responsible for them. Items located at the premises included a water bottle, latex gloves, a hard drive, a camera, and a letter addressed to the offender in the name Wen Xin Guo. There is no evidence that links the offender to the items other than the letter addressed to the name that she had employed.

30. Sequence 17, the Berala premises, is the principal offence upon which the additional offences are to be taken into account. The premises are owned by a man and woman at Berala and consist of a five-bedroom structure with two bathrooms; it is a freestanding house. The property was purchased by the husband in 2007 and the couple lived there until 2019 when they decided to sell. They took the property off the market in June 2020. Sometime after removing the for sale sign the husband was approached by a male and the offender asking to rent. The wife said that she would rent the property for $500 per week. The offender said she was interested and the wife gave her a mobile phone number. She spoke with the wife using Mandarin but according to the wife she was not fluent. The male who accompanied the offender did not speak.

31. The wife and the offender arranged to meet on 27 June 2020 at the premises. The offender used a phone, the number of which is included in the facts. The offender attended with another female who spoke Cantonese and assisted with the lease agreement. The offender informed the wife that four people would be living in the house, namely herself and her father and brother, and the female who was assisting the lease. The offender signed the lease agreement and paid a bond and four weeks rent with cash.

32. The offender signed the rental lease and provided a New South Wales drivers licence in the name of Wen Xin Guo with a date of birth 19/6/1994. The rent was paid on time. The owner or owners did not ever conduct an inspection. The wife attended the property on 7 March 2021 and found severe damage.

33. On 4 March 2021 police conducted a crime scene warrant at the premises. They found 230 hydroponically grown plants in black pots. Crown concedes that they cannot prove beyond reasonable doubt that the offender was aware of the number of plants being cultivated but she was aware that the premises were intended to be used for cultivation of cannabis plants by others for a commercial purpose.
    The plants were various heights. The police identified electricity diverted to the property. There is no evidence that the offender was responsible for this. Items seized at the property included 114 light globes, 113 light shades, 18 transformers, three power boards, a pair of blue slide shoes, a baseball cap, and a pair of black gloves. There is no evidence that links the offender to any of those items. As with the earlier properties there are images of the plants and the bypass of the electricity.

34. The next sequence of offences is those that are included on the Form 1. Sequence 21 is the charge in respect of the Rydalmere property, a three-bedroom freestanding house, with one bathroom and a carport. In November 2020 the owner advertised her property for rent on a website. The property was offered at $490 per week. She was contacted shortly after the advertisement via the WeChat application by the offender using the name Wen Xin Guo. A telephone number was provided. They arranged to meet at the property and did so in November. The owner identified the offender as female and gave her description. The offender attended with a young male there described. Both spoke fluent Mandarin. The offender told her that she was living in Burwood with her parents and was looking to rent something bigger.

35. The offender and the male inspected the house before arranging to pay a bond of $1,960 and two weeks rent of $980. The offender paid the total amount in $100 bank notes and arranged to pay the rent directly to the owner’s bank account. The offender signed the tenancy agreement for a period of 12 months and said she would send a copy of her licence via email but did not.

36. On 4 March 2021 police conducted a crime scene warrant at the premises and located 91 plants grown in a sophisticated watering and lighting system. Once again the Crown accepts it cannot prove beyond reasonable doubt that the offender was aware of the number of cannabis plants being cultivated but she was aware that the premises were intended to be used for cultivation of cannabis plants by others for a commercial purpose.

37. A certificate of analysis was issued in respect of these plants, 91 in number, all over one metre. There are images of the plants. The police also located gardening gloves, a surgical mask, a black cap, and a pair of Air Jordan shoes. There is no evidence to link these to the defendant.

38. The next Form 1 offence is sequence 20 relating to the premises at Ermington. The owner of this property purchased in February 2021 as an investment. It is on a corner block and consists of three bedrooms and two bathrooms with four car spaces. Access is gained through a balcony on the first floor.

39. At the end of January 2021 the owner’s fianceé advertised the property for rent on a website for a year at $620 per week. On 18 January 2021 the owner received a message from a person who introduced herself as Jessie enquiring about the property and using a telephone number, the particulars of which appear in the facts. Arrangements were made for the premises to be inspected. The owner arranged to meet the offender on 19 January 2021. The offender attended with a young male identified as her brother, who did not speak English or Chinese. The offender is described; the offender told the owner that she wanted to move in with her mother, brother, and brother’s girlfriend, and that she would be in touch.

40. The offender called the owner on 22 January 2021 and told him that she would like to move in. They arranged to communicate via WeChat; the offender used this service under the name particularised in the facts to say that she would transfer the bond of one weeks rent. The owner asked that the offender send her identification and a Medicare card so they could sign the contract. The owner also sent her bank account details to the offender.

7. On 23 January 2021 the deposit was paid into the owner’s account and the offender sent through photographs of identification documents in the name of Jessie Wang. There are images of those two items in the facts as there are in the earlier sections of this document. The owner confirmed that the photograph depicted on these two cards was that of the woman he met at the property.

8. They arranged to sign the contract for a monthly payment of $2,695. The owner met the offender at Burwood Chinatown on 12 February 2021 and checked her identification documents. The offender signed the rental agreement. She told the owner that she was living in Burwood with her mother, brother, and brother’s wife. Cash deposits for the rent were paid into the owner’s account on 12 February 2021 and 12 March 2021.

9. The owner attended the property on 23 March 2021, after they had heard about a police operation, and noted significant damage to the premises. On 22 March 2021 the police conducted a crime scene warrant at the address and located 114 hydroponically grown cannabis plants in black pots. Once again the Crown concedes it cannot prove beyond reasonable doubt that the offender was aware of the number of cannabis plants being cultivated. The offender was aware that the premises were intended to be used for cultivation of cannabis plants by others for commercial purposes.

10. Each room contained cannabis plants. In room A, there were 42 plants and 42 lightshades and 42 light globes. In room B there were 72 cannabis plants, eight lightshades and five light globes. In room C there were no cannabis plants but nine lightshades and nine light globes. In room D there were 48 light globes. In room E 24 lightshades. In room C 50 lightshades and 27 light globes, 95 transformers and three homemade power boards. There are images of some of these rooms.

11. The police noted that several of the rooms had been converted to grow cannabis via hydroponic means. The kitchen contained a number of power transformers and power boards which were supplying power to light globes and exhaust fans within the house. The laundry room contained fertiliser and other plant growth enhancers. One of the grow rooms behind the kitchen had a drywall installed to block out any light.

12. Officers from Endeavour Energy located an illegal electricity bypass which was actively using unmetered energy. This meant that the illegal connections were supplying unmetered free electricity to the consumer. There is no evidence that the offender was responsible for the bypass.

13. Finally, sequence 18, to be taken into account when sentence is determined in sequence 17, concerns the Eastwood premises. The owner purchased the property in May 2008 and rented it as an investment property from October 2020. This is a five-bedroom house with two bathrooms and a driveway. The owner moved out of the property in October 2020 and advertised it for rent on websites. The owner received a text message in early November requesting an inspection.

14. On 10 November 2020 there were several groups of people who inspected the property including the offender. She attended with a male she introduced as her brother. She said she was from Hong Kong and could speak a little Mandarin. The owner received a text message in Mandarin on 10 November 2020 from the offender by way of her mobile number, which is particularised in the document. The enquiry was about signing the contract for the property. They met on 14 November 2020 to conduct a second inspection. The offender agreed to lease the property for $720 per week with six monthly inspections.

15. The offender signed the tenancy agreement and produced her New South Wales drivers’ licence and Medicare card in the name of Wen Xin Guo. She also sent a picture with these documents to the owner using WeChat.

16. The owner attended the property on two occasions and noticed the windows were drawn on both. I take that to mean that the coverings on the window were drawn on both occasions. The offender contacted the owner on 6 March 2021 using WeChat to update her contact details to another telephone number, the particulars of which appear in the facts.

17. The police conducted a crime scene warrant at the premises on 22 March 2021 and located 294 hydroponically grown cannabis sativa plants within the property. They were at various stages of growth and were cultivated by enhanced indoor means. The Crown could not prove beyond reasonable doubt that the offender was aware of the number of cannabis plants being cultivated though she was aware that the premises were intended for use for cultivation of cannabis plants by others for a commercial purpose.

18. There are images of the premises showing the plants and certain of the rooms. Fertilisers were in the kitchen of the property. Police also identified electricity diversions. There is no evidence that the offender was responsible for those. There are images of these installations and the fertiliser in the kitchen.

19. The offender was arrested and cautioned at her property at Bankstown on 28 June 2021. She was offered, but declined, the opportunity to participate in an electronically recorded interview. She agreed to participate in a forensic procedure. She told police that she was earning $800 per week working at a dog food factory and was paying $120 per week rent.

20. The police conducted a search warrant and located six mobile telephones relevant to their investigation. Two of the mobile phones seized during the search contained IMEI particulars matching the phone numbers used by the offender when applying for leases.

21. The assessment of the level of seriousness of this misconduct involves a consideration first of the sophisticated nature of the enterprise involving six premises with the limited number of plants cultivated in each of them, with others responsible for the work required in cultivation of the plants and, in this instance, for the arrangement of the premises that were identified when advertised on various websites.

22. So often it is the case that the Court is confronted with a sophisticated organised criminal enterprise such as this, where it is those at the lower echelons who are detected and put before the Courts. Those who are at a higher executive level do not, it appears, expose themselves to the risk of apprehension and incarceration but use other individuals, perhaps more vulnerable because of their circumstances, to put themselves at risk of detection, prosecution, and incarceration for the role they performed.

23. It is the pattern that appears to be followed where such as this offender are used to perform these functions spread across an array of different perpetrators all in the interests of those at a higher level who are there to gain the major profit to be derived.

24. All of that said, individuals such as this offender who make themselves available to participate in these crimes make possible the misconduct involved in the obtaining of premises from victims who suffer damage to their properties through the misuse identified, in due course allowing for the harvesting of cannabis which is a significant problem with our community, impacting upon mental health of those who use it to excess. Among the purposes of sentencing one must bring to account the need for general deterrence to do what the Court can to discourage others from falling into the same pattern as appears to be the course taken by this offender.

25. The offender was born in 1991 and this year will be 31 years of age. She was subject to an intensive corrections order at the time of this misconduct. This was in respect of a sentence of one year and 11 months imprisonment commencing on 9 July 2020 for knowingly taking part in the cultivation of cannabis.

26. Included in the material before me is a statement of agreed facts describing her participation in that event, or that offending I should say. This arose from the cultivation undertaken in premises at Hurstville Grove. The description of the event or the events upon which that prosecution was brought has her involved at a relatively low level in the enterprise in which two others were mentioned, explaining it would appear why the sentencing judge was persuaded to allow her sentence to be served by way of an intensive corrections order in the community.

27. Unfortunately, because of her further offending, the order was breached. I have the intensive corrections order breach report in the material before me. Her response to the supervision that was part of the intensive corrections order was deemed unsatisfactory because of her reoffence. The report includes that whilst conducting her sentencing assessment report, Ms Tran’s risk factors were identified as her untreated mental health and her financial related issues. She returned a medium/low risk of reoffending and upon her sentencing her supervision was suspended on 13 July 2020 in accordance with departmental policy.

28. Recommendation was that the intensive corrections order be revoked and in due course it was as I noted earlier.

The Co-offender Dan Ky Vu

63. The material before me includes the facts relevant to her co-offender in the present matter, a person by the name Dan Ky Vu. Mr Vu was charged with knowingly take part in the cultivation of 151 plants at the Campsie property; offences taken into account included using an unregistered motor vehicle, driving whilst his licence was cancelled, consuming electricity without authority and producing a licence altered in a manner calculated to deceive. Judge Sweeney specified for him a sentence of imprisonment of two years with a non-parole period of 12 months to date from 28 June 2021. His offence was limited to the one set of premises in the enterprise. The police saw this offender driving a motor vehicle on 8 June 2021. He was seen to the enter side gate at Lincoln Street Campsie, the Campsie premises the subject of sequence 22 with which this offender is charged. He was observed at the premises. He was seen entering them carrying a board‑like object with a power cable attached. He was seen leaving the premises not carrying anything and driving away. He was stopped in Bankstown after leaving the premises. He produced the licence and a false identity.

64. The facts relevant to him then continue with the surveillance of those premises on 16 June 2021, eight days after he was seen and stopped by police. He was seen leaving the property carrying a red plastic bag. The warrant on the premises was executed on 25 June 2021 and the items found are discussed in some detail in the facts offered in respect of that offender.

65. At the time of the execution of the search warrant the offender Vu was arrested at his home. They found six mobile phones with a seventh phone on the bed in the room where the other six were located. Various other items connected with the cultivation were seized. He was interviewed and participated by responding to questions where he provided various answers, some of which appeared to have been accurate and some of which appear to have been false. The overall effect was that he was there to attend to work at the premises for which he was paid. He denied attending any other properties that might have contained cannabis plants.

66. I note that his family name is the same family name of a co-offender described in the facts relevant to the prosecution of this offender, leading to her intensive corrections order. It is not entirely clear to me though whether there is any connection between the two, bearing in mind that the family name Vu is quite common in the Vietnamese community. I do not take that point any further.

The Gravity of the Offences

67. As is made clear in the submissions that have been put forth, one not only looks at the objective seriousness of the criminal enterprise on which the offender is charged but one must also consider the role that the offender performed in the enterprise. The assessment includes of course the number of plants and this case a number of premises, the sophistication of the arrangements whereby these premises were accessed, and the plantations put in place.

68. What impacts significantly in this case is the nature of the role upon which the offender engaged as one of the public faces used for the acquisition of the properties in which the cultivations took place, and the concession that there is no evidence that can show that she was an active participant in the work cultivating the plants. Her role was, upon the evidence before me, confined to contact with the property owners and negotiating the lease arrangements, and putting herself forward as the intended tenant.

69. I have assessed her culpability and the objective seriousness of her misconduct accordingly.

The Offender

70. The offender provided a psychologist’s report from David Green written on 12 July 2022. This is based upon clinical assessment only. There is no product from psychometric testing and thus the report depends entirely upon the representations given by the offender to the psychologist; one needs to approach the assessment of the findings with appropriate circumspection in light of decisions such as R v Qutami [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144 when representations offered or attributed to the offender have not been given under oath or affirmation and have not been tested by cross-examination.

71. This said, there is nothing to gainsay the history that has been given. I am not persuaded though that she suffers and has suffered from a depressive disorder, though there can be no doubt that she has had, if one accepts what is attributed to her, experiences in life which have no doubt contributed to at least a state of melancholy from time-to-time. She is in effect in this country as a woman alone at the present time, without family other than her aging mother and her brother back in Vietnam with challenges to his health.

72. According to the history taken, her father died at age 53 with complications arising from a stroke that he suffered. Her father abused alcohol it appears, according to the offender. He was an angry man toward everyone and she had little communication with him. She developed a fear of male people throughout life she said. She identifies as a lesbian and was rejected by her mother and her brother because of what they perceive to be her shame attaching to that lifestyle. Her brother is aged 37. He was adamant, she said, because of her tendencies that brought shame to the family, that he did not want to have anything to do with her.

73. She is not an unintelligent woman, and I do not mean that other than in the most positive context. She completed Year 12 of education and appears to have some talent with languages. She undertook study in this country. The only impediment to that was economic. It prevented her from continuing to study because she could not harvest the resources necessary to pay for her sustenance and her education.

74. She said she grew up in a family where her parents were very strict. Her father was bedridden after his stroke. The relationship between her parents was a poor one and it deteriorated further when he became unwell. She left the family home to escape what was ongoing conflict. Her father died when she was aged 16.

75. She travelled to Japan for a period where she obtained work and had some success; she returned to Vietnam in November 2012 at the end of her three-year contract and began working for the same enterprise in Vietnam but in circumstances that were significantly different from those conducted in Japan. She left that organisation and came to Australia in May 2014, aged 22.

76. She lived in Melbourne and her mother, upon becoming aware of her sexual orientation, reacted badly. Her mother cut her off financially. She could not study because she could not afford the fees. She was on a student visa but that was cancelled because she could not attend her course or courses. Her relationship history is discussed. She had one of significance in Vietnam that lasted for some seven years. In Australia she became involved with another woman over a long term that began in 2017. The woman had been married and had three children, two girls aged three and seven and a son who was aged 12 when she was detected in the offence that led to the intensive corrections order. This caused the breakdown of that relationship and she was once again alone. She was unable to find full-time work.

77. The relationship suffered additional stress because the business that her partner operated entered a period of financial difficulty. The offender could not obtain fulltime work to assist and ultimately the relationship came to an end.

78. The catalyst that brought it down was the misconduct that led to the intensive corrections order. In that crime she volunteered that she had been offered work in a house where cannabis was being cultivated. She was required to do general cleaning and take out the garbage bins and was present when those premises were raided. The deterioration of the relationship that had commenced continued following that offence and she is of the view, according to the psychologist, that the offending was used as an excuse by the partner so she could breakup with her.

79. At para 71 the report suggests that the offender described a range of symptoms consistent with depressive disorder and episodes of depression were nominated. The first of those was during her teens because of conflict with the parents, the second when her mother and brother found out about her sexuality, the third when the first offence occurred, and the fourth when the relationship with her partner ended.

80. I have no difficulty accepting that there might have been symptoms of depression. It would be unusual if they were not exhibited in such events. It does not follow from that that one could conclude that she suffered a depressive disorder. In the absence of evidence other than by her out of court representations and any psychometric testing I am not prepared to go so far as the psychologist would suggest, but I do accept that she had those periods of melancholy or sadness because of those episodes in her life.

81. She taught herself to speak Mandarin. She spoke about her desperation and the need for money and how she had insufficient to pay for rent and food. She felt she was being looked down upon because she was a lesbian. She could not afford a ticket to go home. Her mother had disowned her. She was under stress because her landlady was demanding the payment of rent.

82. She had the telephone number of a person she had met around the time of her first offence and it appears, according to this, that she telephoned him and he offered her work. She initially refused but out of desperation she called him to find a means of addressing her financial imperilment and he gave her phones to make the calls that were required to identify and access homes for the purposes of this enterprise. He provided her with the documentation and false licences. He gave her the numbers of the people wanting to rent their houses.

83. Events since her arrest and whilst she has been in custody included steps taken to undertake courses, her wish to change her life, the fact that she acts as an interpreter in the custodial setting, and the difficulties she has had in Dillwynia, particularly because of lockdowns due to the COVID pandemic.

84. Her mother has been more accepting in recent times. They have had the opportunity to speak since her incarceration. Her mother regrets the attitude that she took against her daughter. The offender wants to return to Vietnam as soon as she can do so.

85. There is a summary of risk factors for re-offending identified. There is a measure of contrition that is offered including expressions of regret attributed to her, and ultimately at para 120 the opinion offered is that she could be diagnosed with major depressive disorder, moderate to severe multiple episodes. I do not accept that diagnosis on the material that I have as I have already said.

70. I accept that her incarceration is onerous and is likely to be more onerous because of this her one and only time in custody and that she has no support in this community. I accept that there has been an effort by the offender to rehabilitate reflected in the attempts to improve herself in custody including the completion of certificate courses. The certificates from those have been included in the material tendered.

71. There is a document from the chaplain at Silverwater. She is attributed with an exemplary attitude to staff and other inmates. She is said to have a lovely nature and is grateful for any act of kindness given to her and she is liked by everyone. Whatever wrongs she has done in her life she has borne them with patience whilst in custody.

72. There is a document from the offender written in Vietnamese but translated into English. She expresses regret in this document, apologises to the community and the government. Life in gaol is terrifying for her because of COVID and because of floods. She speaks of isolation for up to one month at a time. She wants to change to be a better person. She speaks of the re‑establishment of a relationship with her mother. She has only her mother and sick elder brother left to her and she wants to re‑join them as soon as she able to do so. I do not bring that to account, however. It would breach the principle that what will happen to her after her custodial sentence is a matter not for the sentencing Court. It is known that people in her circumstances will be most likely deported from the country once she is released into the community but that is not a matter that informs the decision that I make.

73. There is a document from the offender’s mother speaking of her life with her husband, the stroke he suffered and his death in 2007, and her life history including the experience working in Japan described by the offender to the psychologist. Her mother writes of the shock of being informed that her daughter was a lesbian. She is surprised and shocked that her daughter would engage in such behaviour as this before the court.

74. She writes that she blames herself for the situation because she said she contributed to the circumstance leaving her daughter alone in another country without anyone to turn to for help, allowing her to turn to the wrong people for help in due course. She attributes her daughter with fear about being in prison, the exposure to people with drug problems, that she has been working hard to make up for her past behaviour, that she is to work in the laundry, and completed courses, and that upon release she will come straight home.

75. She says that her daughter has made poor decisions in the past but they do not reflect her true character. She is satisfied that her daughter would not break the law ever again.

Conclusion

92. I find in this case that there is evidence of contrition and remorse. I find that there are prospects for rehabilitation. Measuring them though is difficult in the circumstances when the offender had on a second occasion embarked upon criminal conduct of the same type that led to her term of imprisonment to be served by way of an intensive corrections order. On the material I have though I accept that she is sincere in her wish to change her ways and redirect her path.

93. The Form 1 offences must impact upon the principal offence charged in sequence 17. She has avoided separate punishment for the additional offences in what on one view might be seen to be a generous arrangement that was accepted by the Crown. I reviewed the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act1999, number 1 of 2002 [2002] NSWCCA 518. There must be identified a term of imprisonment for the offence charged in sequence 17, subject to the consideration that must be given to an increase in what otherwise would have been that sentence bringing to bear the Form 1 offences, which should impact upon the sentence for the principal offence with in an increase to reflect the need for greater weight to be given to specific deterrence, recognition of the entirety of misconduct upon which the offender engaged, and the community’s entitlement to retribution for the full range of her misbehaviour.

94. I have taken the additional offences into account and I certify the Form 1 offence to confirm that I have done so.

95. The purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act1999 are all engaged in this case. There must be adequate punishment. There must be general and specific deterrence. There must be a sentence that will do what it can to protect the community from the offender and promote her rehabilitation. She must be made accountable. The conduct is to be denounced because it is unacceptable for the community to bear this type of arrangement whereby owners of properties are victimised by the enterprise itself and the community generally suffers because of the opportunity the enterprise provides for the distribution of these drugs. The sentence must recognise the harm done to the victims of the crime and the community more generally.

96. It is conceded that the line in s 5 Crimes (Sentencing Procedure) Act has been crossed and that no sentence other than fulltime custody is appropriate. I have brought to account the aggravating factor of the past record and conditional liberty but that does not increase the objective gravity of the offending or the proportionate sentences that are to be identified. Because of her past the offender loses leniency that might otherwise have been extended to her; it speaks of the need for personal deterrence.

97. Written submissions provided by each of the parties have been reviewed. Those on behalf of the offender fairly summarise the matters that are to be brought to account on assessing the objective seriousness of the offending including the number of plants, their maturity, their condition, the street value of which there is no evidence before me, the sophistication of the cultivation which is patent in the material before me, and the extent of the actual participation of the offender in the enterprise.

98. The profit to her on any view would have been relatively modest; it would have provided her means of sustenance it would appear and little more.

99. The plea of guilty is considered as both a reflection of remorse and for the utility that it provided from which the discount is then applied. The background leading to the offending is advanced, including the mother turning her back on her daughter. This is a matter I have brought to account to explain why she put herself at risk as she has. I consider that her status as a foreign national in a gaol in this country with limited English skills is a matter that should be considered when determining the burden that she must suffer in custody.

100. I agree with the Crown submission that the observations by the psychologist do not raise this case to a level as discussed in DPP for the Commonwealth v De La Rosa (2010) 79 NSWLR 1, specifically the judgement by McLennan CJ at CL.

The Sentences

101. Thus I come to impose sentence. The offender is convicted of each of the offences. I have identified as appropriate the following terms of imprisonment:

• For the offence charged in sequence 17, bringing into account the three additional offences on the Form 1 and applying a discount of 25% to the sentence that would have been otherwise imposed, I specify a head sentence of imprisonment of three years.

• For sequence 19 and for sequence 22, I specify a sentence of two years and three months in each case. Once again, I have applied a discount of 25% for her guilty plea and the utility provided in each case.

• I specify an aggregate sentence, a non-parole period as one of two years, commencing on 29 December 2021. She will be eligible for release to parole on 28 December 2023.

• I impose a further period of imprisonment of one year and six months at the expiration of the non-parole period. It will expire on 28 June 2025.

• For sequence 17 and bringing into account the three additional offences, the sentence is one of three years. For the other two offences, sequence 19 and sequence 22, the sentence is two years and three months. They are indicated sentences as appropriate for each of those offences. I specify an aggregate sentence. The sentence the offender is to serve is one of three years and six months, commencing on 29 December 2021. She will be released to parole on 28 December 2023 and thereafter she will be subject to parole for a period of one year and six months to conclude on 28 June 2025.

102. I find that there are special circumstances by reason of this as her first time in custody, her lack of family support in this country and that her English is limited.

103. Exhibits are to remain on file.

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Decision last updated: 19 August 2022