R v Tran

[2020] NSWDC 846

District Court

New South Wales

Medium Neutral Citation:

R v Tran [2020] NSWDC 846

Hearing dates:

26 November 2020

Date of orders:

26 November 2020

Decision date:

26 November 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The offender is sentenced to a term of 2 years and 3 months imprisonment and a non-parole period of 1 year and 4 months.

Catchwords:

CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Electrical Supply Act 1995 (NSW) s 64(1)

Crime Sentencing Procedure Act 1999 (NSW), s 3A

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mr Tam Minh Tran (Offender)

Representation:

Counsel:
Mr R Keller (Offender)

Solicitors:
Ms J McWhirter (Crown)
Mr L Nguyen (Offender)

File Number(s):

2020/119385

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to an offence that between 28 February and 21 April 2020 in South Penrith, he cultivated by enhanced indoor means a number of prohibited plants, namely, 100 cannabis sativa plants, which was not less than the commercial quantity applicable to that prohibited plant. That is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 and has a maximum penalty of 15 years imprisonment and/or a fine equivalent to 3,500 penalty units.

2. There is an offence on the Form 1 which the offender acknowledges his guilt for and asks that I take into account when I sentence him on the primary offence. That is an offence of use and consuming electricity without authority, the electricity being used in the cultivation. That is an offence under s 64(1) of the Electrical Supply Act 1995 and it carries a maximum penalty of 2 years imprisonment and/or a fine of $11,000.

The facts

3. In January 2020, police commenced investigations under Strike Force Spiral into the suspected cultivation of cannabis by enhanced indoor means in Western Sydney. As a result of these investigations, the premises at 26 Banool Avenue, South Penrith were identified as being used for the cultivation of cannabis. 26 Banool Avenue comprises of a single storey brick veneer residential dwelling with attached single garage (“the premises”).

4. On 28 February 2020, physical surveillance observed the offender mowing the lawns at the premises whilst wearing an orange fluorescent work shirt and grey baseball cap with black brim and circle motif.

5. On 17 March 2020, physical surveillance observed a silver Toyota Camry, bearing New South Wales registration CR11WB parked in the driveway of the premises and at 11 am the offender left the premises in the silver Camry. Police followed the silver Camry eastbound on the Great Western Highway where it was stopped at Werrington by police and the offender was confirmed to be the driver. The Offender is the registered owner of the silver Camry.

6. Between 9 pm on 27 March 2020 and 12.40am on 28 March 2020, the silver Camry was seen parked within the driveway of the premises. At around 7 pm on 29 March 2020, the front window of the premises was observed to be boarded up so the inside was not visible from the outside of the house. Lights were seen to be on inside the premises and the sound of exhaust fans could be heard coming from inside.

7. On 7 April and 11 April 2020, the silver Camry was observed to be parked in the driveway of the premises. On 15 April 2020 the silver Camry was observed parked in the driveway of the premises and at 11 am the offender drove the silver Camry from the premises and was followed by police to 279 Canley Vale Road, Canley Heights, being the known address of the offender. The offender was the driver and sole occupant of the silver Camry at this time.

8. Police applied for and were granted a search warrant for the premises. On 21 April 2020, police gained entry into the premises. The offender was located in the lounge room where he identified himself as “Minh Tran” and was arrested.

9. Upon entry to the premises police identified four rooms that had been converted to enable the cultivation of prohibited plants by enhanced indoor means. There was also a room to the rear of the house that had been converted for the cultivation of prohibited plants and in which a hydroponic set up was established. Access to this rear room was through the dining area. The back verandah/patio area was covered by a tarpaulin sheet, obscuring the visibility of the inside of the premises.

10. A representative from Endeavour Energy attended the premises and confirmed an illegal bypass had been setup which was diverting unmetered electricity to the premises to power the hydroponic setup.

11. An evidentiary search of the premises commenced and revealed five rooms had been modified for the purposes of and were being used for the cultivation process:

1. Room one was located immediately to the right upon entry through the front door. The room contained six cannabis sativa plants approximately one metre in height, six large light shades, seven small batwing light shades, and 14 light globes. Each plant was within a black plastic pot and there were fans installed and attached to the walls of the room. The walls were lined from the floor to midway to the ceiling with a silver reflective material. An irrigation system was also in place for the plants;

2. Room two was located on the left side of the hallway next to the bathroom and contained six cannabis sativa plants approximately one metre in height, five large light shades, three small batwing light shades, and 15 light globes. Each plant was within a black plastic pot and there were fans installed and attached to the walls of the room. The room had been converted in the same manner as room one with silver reflective material and an irrigation system;

3. Room three was located on the right side of the hallway and contained nine cannabis sativa plants approximately one metre in height, eight large light shades, 12 small batwing light shades, and 21 light globes. Each plant was within a black plastic pot and there were fans installed and attached to the walls. The room had been converted in the same manner as room one;

4. Room four was located at the end of the hallway and contained eight cannabis sativa plants approximately one metre in height, seven large light shades, 11 small batwing light shades, and 19 light globes. Each plant was within a black plastic pot and fans were installed and attached to the walls. The room had been converted in the same manner as room one;

5. Room five was attached to the rear of the house with entry gained through the dining room area. This room contained 71 cannabis sativa plants, 11 large light shades, and 12 light globes. A plastic bag containing 7.6 kg of dead leaf matter was also seized from this room. The plants in this room were smaller than those in the other rooms and under one metre tall.

12. The bathroom had been established as an irrigation room for the mixing of chemicals to water the plants and contained numerous bottles of chemicals, piping, and unused light globes.

13. Senior Constable Anthony Mascherin attended the premises and confirmed there were 100 cannabis sativa plants located in the premises. Senior Constable Mascherin is an Appointed Person within the meaning of the Drug Misuse and Trafficking Act 1985 and confirmed all plants had leaves, stems, and root ball systems attached.

14. The following items were seized in the course of an investigative search at the premises:

1. A ‘Konka’ brand black flip mobile phone found on the coffee table in the lounge room;

2. A brown men’s wallet located in the pocket of a pair of pants situated on a chair in the lounge room. The wallet contained the offender’s driver’s licence and other personal cards in the offender’s name;

3. A grey and black cap with circle motif located above the oven in the kitchen. This cap was similar to the one the offender was seen wearing during surveillance on 28 February 2020;

4. Red and white gloves were located in the kitchen, the bathroom, and room 5; and

5. A piece of paper containing writing in Vietnamese which was located on a box on the sink/vanity area of the bathroom that appeared to provide instructions.

15. The offender was conveyed to Penrith Police Station and participated in an electronically recorded interview with police with the assistance of a Vietnamese interpreter.

16. During the interview, the offender told police the following:

1. He had been told to look after and water the plants, which he had been doing for about three weeks. He was at the premises for the sole purpose of watering the plants and originally was due to attend daily but then reached an agreement that he would attend three times a week;

2. There were instructions in Vietnamese about how to mix chemicals to water the plants which were written down and located in the bathroom of the premises. It takes him about two hours to water the plants, including time to mix the chemicals for a solution but the watering system was automatic and pumped water from the bathroom to the plants;

3. He was approached by someone at a club/pub in Canley Heights on Canley Vale Road who asked if he was interested in a job. This person got his details and passed them on to others who then contacted him via phone and proposed work for him to do. He did not know the name of the person giving him instructions and all arrangements were made on the phone between him and the unknown person;

4. He was paid $1000 in cash a week and each week he met a Chinese male on the main street near Kingswood station. He did not know this person’s name and he last met him on either the 12^th or 13^th of April;

5. He denied being involved in the establishment of the hydroponic setup. He did not know the owner of the premises and gained access as the key was left in the mail box for him.

17. He said there were 29 plants combined in the four rooms and approximately 30 to 40 plants in the room to the rear of the premises. He said the plants in the house have been the same the entire time he has been to the premises and he did not put any of the plants into pots.

Objective seriousness

18. I turn to my assessment of the objective seriousness of the offence. The number of plants is always a relevant but not determinative factor in sentencing for cultivation offences. The number of cannabis plants here is 100, which is half way between the commercial and large commercial quantities.

19. The cultivation was a well planned and somewhat sophisticated one, in that the whole of a house was used for the hydroponic set up and the bathroom had been established as an irrigation room for the mixing of chemicals to water the plants and contained numerous bottles of chemicals, piping and unused light globes. Clearly, given the number of plants it is an overwhelming inference that the crop was worth a significant amount of money.

20. An offender’s role is also a relevant factor to have regard to when sentencing for this type of offence. The police observed the offender or his vehicle at the premises on 28 February, 17 March, 27 and 28 March, 7, 11 and 15 April. The offender was found at the premises when the police entered the premises on 21 April 2020. The offender when interviewed by the police said he had been looking after the premises for “about 3 weeks”, and that he had been at the premises solely for the purposes of watering the plants, and had been attending three days a week. His admissions to the police about watering the plants also involved admissions to mixing chemicals in that process, there being instructions in Vietnamese found by the police at the scene. He admitted to the police that he engaged in the offence in order to be paid $1,000 a week in cash. He denied being involved in the establishment of the hydroponic arrangement. Clearly he involved himself in the offence for financial gain.

21. The Crown in its submissions accepted that the offender should be categorised as a crop sitter and that the objective seriousness of the offence falls towards the lower end for such offending. It is of course relevant to have regard to the fact that without people being prepared to play the role this offender played, such commercial production of cannabis could not occur.

22. I assess the level of objective seriousness as being well below a notional mid range offence, and towards the lower end of the range, but not at the bottom of the range.

23. The Form 1 offence has a modest impact upon the level of sentence to be imposed on the primary count, given that the electricity was used in the cultivation offence.

The offender’s subjective case

24. The offender’s date of birth is 28 January 1971 so he is 49 years of age.

25. He has a limited criminal record. In 1996 he was dealt with on two occasions for supply prohibited drug in the Local Court, with the most significant sentence being one of home detention. In 1997 he received a sentence of full time imprisonment for supply prohibited drug. I note those offences and sentences are more than 20 years ago, and the offender was in his 20’s when they occurred. Since that time the offender has only committed a small number of traffic offences which have resulted in fines. Given the age of the drug offences, I do not consider that his record completely disentitles him to leniency here.

26. There are before me the following reports: A sentencing assessment report dated 24 Nov 2020 and a report dated 20 October 2020 by Mr Bradley Jones a Forensic Psychologist.

27. The psychological report details his self-reported family history. After his father died at a young age he was required to take over a parental role in relation to his siblings. He recalled his childhood being impoverished and difficult, and I note it occurred in Vietnam in the 1970s when that country was going through the trauma of a war in which this country was a combatant nation. He, with a brother, managed to escape to a refugee camp in Malaysia where he stayed 2 years, before migrating to this country. No doubt his early life was a difficult one.

28. He has had two significant personal relationships, and the second one has produced two young sons although he has had limited access to them since separating from their mother in 2015.

29. The sentencing assessment report records that the offender has a supportive and positive relationship with the immediate members of his family.

30. He completed up to year 6 in Vietnam and then commenced employment in a factory and over the years has held a variety of positions.

31. He has had issues with alcohol in the past and the psychologist diagnosed him as suffering from an alcohol use disorder which is currently in early remission in a controlled environment.

32. The author of the sentencing assessment report noted that the offender’s offence was influenced by a combination of financial issues relating to gambling, debt and a lack of income, and was committed for financial gain.

33. The psychologist noted that there was no evidence of sensory, perceptual or more significant cognitive impairment. He was also assessed as being in the average range of intelligence.

34. The psychologist diagnosed that the offender has a severe gambling disorder which is in remission in a controlled environment and that he will require gambling relapse prevention counselling.

35. While he has been the subject of community corrections supervision in the past, records concerning it no longer exist.

36. The sentencing assessment report records that the offender accepted that his behaviour affected the general community negatively, which suggests he has some insight into his offending and its potential impact upon the community.

37. The sentencing assessment report recorded the offender as having a medium to low risk of re-offending. The psychologist considered that he has a low risk of re-offending

Imposition of sentence

38. He has pleaded guilty in the Local Court and I will allow him a 25% discount for the utilitarian value of his plea.

39. His early plea of guilty and statements to the report writers support a finding of some genuine remorse.

40. He has good prospects of rehabilitation given the lengthy gap in his record since his last drug offence, his low risk of re-offending and his family support.

41. Given his need for assistance with his gambling addiction when he is released from custody, I propose to provide that he has a longer period on parole and will make a finding of special circumstances when fixing the non-parole period.

42. He has been in custody since 21 April 2020 and I will back date the sentence to commence from that date to take account of pre-sentence custody.

43. I have had regard to the objectives of sentencing referred to in s 3A of the Crime Sentencing Procedure Act 1999 which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the offender’s conduct; recognize the harm done to the victim and the community and rehabilitation of the offender.

44. It is always a serious offence where someone is involved in the cultivation of the commercial quantity of cannabis plants for financial reward. Much of the criminal activity the courts see is committed by those under the influence of prohibited substances, such as cannabis. Protection of the community is therefore a factor to give weight to when sentencing for such offences. Those who are involved in the commercial cultivation of prohibited plants must receive significant sentences in order to deter the offender concerned and others from such conduct.

45. Clearly the only appropriate sentence is one of imprisonment given the serious nature of the offence.

46. The maximum penalty has been taken into account as a legislative guidepost.

47. Having regard to the offence on the Form 1, I impose a sentence consisting of a non-parole period of 1 year and 4 months and a balance of term of 11 months. That is a total sentence of 2 years and 3 months. It commences on 21 April 2020 and expires on 20 July 2022. The non-parole period expires on 20 August 2021. The offender can expect to be released to parole on 20 August 2021. Whether he is in fact released that day remains a matter for the State Parole Authority.

Orders

1. The offender is sentenced to a term of 2 years and 3 months imprisonment and a non-parole period of 1 year and 4 months.

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Decision last updated: 14 February 2021