District Court New South Wales Medium Neutral Citation: R v Teoh [2020] NSWDC 745 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 1 month imprisonment and a non-parole period of 1 year. Catchwords: CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 23 Electrical Supply Act 1995 (NSW), s 64 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 3 Cases Cited: Wat v R [2017] NSWCCA 62 Bullock v R [2016] NSWCCA 131 BP v R [2010] NSWCCA 159 Category: Sentence Parties: Director of Public Prosecutions (Crown) Mr En Chen Teoh (Offender) Representation: Counsel: Mr R Keller (Offender) Solicitors: Ms J McWhirter (Crown) Mr L Nguyen (Offender) File Number(s): 2020/156966 Publication restriction: Nil SENTENCE Introduction 1. The offender pleaded guilty in the Local Court and adhered to that plea to the following offence; that between 7 May 2020 and 26 May 2020 at South Penrith, the offender did knowingly take part in the cultivation of prohibited plants using enhanced indoor means, being 106 cannabis sativa plants, which was not less than the commercial quantity applicable to that prohibited plant. This is an offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 15 years imprisonment and/or a fine equivalent to 3,500 penalty units. There is no applicable standard non-parole period. 2. The offender acknowledges his guilt in relation to another offence on a Form 1 and asks that I take it into account when sentencing him on the primary offence. That is an offence, that between 7 May 2020 and 26 May 2020 at South Penrith, the offender did use/consume electricity without authority pursuant to s 64(1) of the Electrical Supply Act 1995. That offence carries a maximum penalty of 5 years imprisonment. In the circumstances of this case, the presence of the offence on the Form 1 has a limited impact upon the sentence to be imposed on the primary offence. The Facts 1. I now turn to the facts which are agreed. The following is taken from them; in January 2020, Nepean Detectives commenced Strike Force SPIRAL, which investigated hydroponics houses in the Nepean area being used for the cultivation of cannabis. 2. The investigation revealed that 128 Jamison Road, South Penrith (the premises), was being used for the cultivation of cannabis. Investigations also revealed that a vehicle with registration BIH38X frequently attended the location. The vehicle is registered to the offender. The offender was observed at the premises 11 times between 10 March 2020 and 26 May 2020. 3. On 25 May 2020, at 5:40 pm, police applied for and were granted a search warrant which related to the premises. On 26 May 2020, police forced entry to the premises. Police apprehended the offender attempting to leave via the back door. 4. Police conducted a walk-through of the premises, which included a garage and demountable and discovered the following: 1. Four rooms used exclusively for cannabis cultivation, containing cannabis plants, transformers, light, shades and fans; 2. A small bathroom containing a black tub which provided water and nutrients to the various grow-rooms via multiple hoses; and 3. A lounge room and kitchen which were empty of furniture except for two lounges and a mattress. 1. At 7:20 pm, representatives from Endeavour Energy reported that the consumer mains had been located in the roof cavity. Inspection revealed that the mains had been bypassed by several unmetered connections. These unmetered connections were diverting power to various hydroponics setups throughout the house. 2. The premises were secured under police guard until 9:00 am the following morning. At that time, police dismantled and disposed of the cultivation equipment. The cannabis plants were destroyed. Police seized 106 plants with leaves, stems, and root-balls intact. These plants were identified to be cannabis sativa. Police conducted and recorded a walk-through of the premises. 3. On 26 May 2020, at the time of executing the search warrant, the offender was apprehended in the premises and cautioned. The offender was conveyed to St Mary's Police Station and was arranged an interpreter. Following a conversation with an interpreter, the offender remained uncertain about whether or not to participate in an electronically-recorded interview. As a result, the offender was not interviewed by police. 4. The offender was neither the owner nor the lessee of the premises. There is no evidence that the offender provided finance for the cultivation. Objective Seriousness 1. I turn then to my assessment of the objective seriousness of the offence. The number of plants is always a relevant factor in assessing the objective seriousness, but it is not determinative. There were 106 plants found on the premises. Given that the commercial quantity of plants cultivated by such means is 50 plants, the 106 plants cultivated by the offender more than double the minimum quantity that constitutes the commercial quantity, and essentially half way between the commercial and large commercial quantity. The Crown has submitted that the number of plants would have been of significant value, and that is clearly an overwhelming inference. 2. The Crown in its submissions notes the cultivation setup spanned through the entirety of the premises. Four rooms of the premises were modified for the purpose of cultivation and the bathroom had also been utilised to support the grow rooms. There was clearly a level of planning and sophistication in the hydroponics set up, but not above what is ordinarily seen in such set ups. 3. The offender regularly attended to the cultivation of the plants, was organised and was prepared. The offender was observed attending the premises 11 times between 10 March 2020 and 26 May 2020, which includes the time that he was arrested, although I note the charge stipulates a period of three weeks. The offender admitted to his psychologist that he was involved in working at the premises for two months prior to his arrest. Essentially the offender's role appears to have been one of watering the crop, which inferentially establishes that he had some knowledge as to what is required to successfully grow cannabis by enhanced means. 4. The offender informed his psychologist that it was agreed that he water the plants for one to one and a half hours per day in exchange for $500 per week. Based on the evidence before me, including material in the offender's subjective case, there is no doubt that the offender engaged in the offence for financial gain. 5. However, I do not consider the fact that he engaged in the offence for financial gain an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. It is fairly inherent, in my view, that those who involve themselves in the cultivation of a commercial quantity do so in the expectation that they will receive some form of financial gain: Wat v R [2017] NSWCCA 62 at [44]. 6. While the offender was not a principal in the cultivation, the commercial growth of cannabis cannot occur unless people like the offender are prepared to assist in its cultivation. 7. Based on these considerations, I would assess the objective seriousness of the offence as towards the lower end of the range of objective seriousness, but not at the very bottom of the range. The Offender's Subjective Case 1. I turn to the offender's subjective case. He is currently 23 years of age and was 22 at the time of the offence. He is therefore a young adult offender and the principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of relevant principles in Bullock v R [2016] NSWCCA 131 referring to BP v R [2010] NSWCCA 159. 2. The offender has no criminal history in Australia, noting that he has only been in Australia since June 2019 according to the psychological report that is before me. There is nothing to suggest that he has a criminal record in his native Malaysia. His lack of a criminal record entitles him to some leniency in this sentence. 3. The material in the reports that are before me, which I will shortly review, suggests that the offender is also a person of general good character. 4. He has been in custody since the date he was arrested being 26 May 2020, and his sentence will be backdated to commence on that date. 5. In terms of his subjective case, there is before me a sentencing assessment report dated 10 November 2020 and a psychological report by Mr Bradley, Jones, Forensic Psychologist, dated 17 November 2020. 6. In terms of his family background, the sentencing assessment report records that the offender arrived in Australia from his native Malaysia in June 2019 on a working visa. The psychologist's report states that the offender travelled to Australia with the intention of earning money for his mother who was experiencing significant financial difficulties. He has no familial support in Australia. His girlfriend and parents reside in Malaysia. 7. Mr Jones' report notes that the offender is one of three children and that he has maintained a very close relationship with his siblings throughout life and that he communicated with them on a regular basis prior to his arrest. The report notes that the offender's mother is a factory worker and that the offender has maintained a close relationship with his mother. 8. Mr Jones' report records that the offender's mother divorced his father when the offender was nine years of age, and subsequently took her children to reside with her own mother but that the offender felt that she was not able to support him financially. The offender and his elder brother lived in the care of his father. He recalled that his father often assaulted him with his fists and other various items, which occasionally resulted in him visiting the medical centre. The offender told Mr Jones that he left his father's care and resided with friends until he secured employment at the age of 14. 9. The offender told the author of the psychologist report that he has never developed a meaningful relationship with his father. The offender recalled his father as a violent and abusive man towards his wife and children. 10. The offender clearly, based on what is contained in the psychological report, did not have the easiest of childhoods in Malaysia. 11. In terms of personal relationships, the offender told Mr Jones that he had one long term, intimate relationship with Ms Chuen Yao Chan, for a period of three years. The offender expressed that he had planned to marry her after he returned to Malaysia. 12. In terms of his education and employment history, Mr Jones' report records that the offender completed the Australian equivalent of kindergarten to year 8 in Malaysia. The offender described himself as an academically above average student who behaved generally well and enjoyed learning. The offender reported to Mr Jones that he initially secured employment as a waiter and chef for approximately two years in addition to odd handyman jobs in Malaysia. In Australia, he obtained employment in food delivery for approximately two months, marble benchtop polishing for two months and waitering at a restaurant for seven months. 13. The sentencing assessment report records the offender has been unemployed since February 2020, reportedly due to Covid-19 and that he was not eligible for any Centrelink payments. Mr Jones' report notes that while at Parklea Correctional Centre, the offender received employment in the prisoner reception areas for approximately four months. 14. In terms of his substance abuse, the offender reported to Mr Jones that he first consumed alcohol when he was 19 years of age and described himself as a social drinker who consumes approximately three to four beers on special occasions or celebrations. He reported no history of illicit substance use. 15. In terms of his psychological and psychiatric history, the offender told Mr Jones that he has never received mental health treatment or suffered from any mental health conditions. The offender denied experiencing suicidal or homicidal ideations. 16. In terms of his attitude to the offence, the offender stated to the author of the Sentencing Assessment Report that he was naïve regarding illegal substances and initially did not realise his actions were illegal and once he did realise, 'it was too late'. The offender identified that his financial position due to Covid-19 as the sole reason for his offending behaviour. Mr Jones' report notes that the offender expressed guilt and remorse for his offending behaviour. 17. The offender has been assessed as having a medium to low risk of offending in the Sentencing Assessment Report, and as a low risk in the psychological report. Imposition of Sentence 1. The offender pleaded guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of the plea. 2. His early plea of guilty together with some of his statements to the authors of the two reports that are before me, satisfies me that he has some genuine remorse for his offending. 3. As stated earlier, he has been assessed as having a medium to low or low risk of re-offending and I consider that the offender has good prospects of rehabilitation, given his age and lack of any criminal record. 4. I have had some regard to the fact that he will have limited contact with his family who live overseas and that will make his time in custody more difficult. I have also had regard to the fact that he will be sentenced during the Covid 19 Pandemic which no doubt increases the anxiety of prisoners. 5. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999. 6. It is always a serious offence where someone is involved in the cultivation of a commercial quantity of prohibited plants for financial reward. Much of the criminal activity that the courts see is committed by those under the influence of prohibited substances. Protection of the community is therefore a factor to give weight to when sentencing for involvement in the cultivation of prohibited plants. Those who involve themselves in cultivating commercial quantities of prohibited plants for financial gain must receive significant sentences in order to deter them and others from engaging in such offending. 7. The maximum penalty has been taken into account as a legislative guidepost. 8. Due to his relatively young age and his lack of any family support in the country while serving his sentence, I propose to make a substantial finding of special circumstances when fixing the non-parole period. 9. I was asked to consider imposing a sentence by way of an Intensive Corrections Order. It will shortly be seen that the length of the sentence that I will impose is longer than two years so that an Intensive Corrections Order is not available. 10. The offender is convicted of the offence to which he pleaded guilty. Having regard to the offence on the form 1, he is sentenced to a term of imprisonment, consisting of a non-parole period of 1 year and a balance of term of 1 year and 1 month. That is a total sentence of 2 years and 1 month. It commences on 26 May 2020 and expires on 25 June 2022. The non-parole period expires on 25 May 2021. He can expect to be released to parole on 25 May 2021, next year, although the precise date remains a matter for the State Parole Authority. He may find himself deported to Malaysia upon his release from prison. That is not a matter for me, but for the Commonwealth authorities. Orders 1. The offender is sentenced to a term of 2 years and 1 month imprisonment and a non-parole period of 1 year. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2020