New South Wales District Court CITATION: R v NONG [2010] NSWDC 227 HEARING DATE(S): 1 October 2010 EX TEMPORE JUDGMENT DATE : 1 October 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Sentenced to imprisonment consisting of a non parole period of twenty months with an additional term of a further twenty months, making a total overall sentence of three years and four months. CATCHWORDS: CRIMINAL LAW - Sentence - Knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means - Limited involvement - Principle of parity PARTIES: The Crown Guanglong Nong FILE NUMBER(S): 2009/00147024 COUNSEL: Mr B Brassil - Offender SOLICITORS: The Director of Public Prosecutions LLoyd Truman Sadiq SENTENCE 1 HIS HONOUR: Guanglong Nong appears for sentence today after having pleaded guilty at an early stage to an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means. That is a relatively new offence created as a result of community concern of high quality cannabis being grown in indoor locations, that high quality cannabis having high concentrations of tetrahydrocannabinol, and thus causing more harm to the community than more traditional methods of cannabis cultivation. 2 Not only was the offence created but it carries with it a standard non parole period of ten years. Both the creation of the offence and the relatively standard non parole period are clearly an indication of the seriousness with which offences of this type are to be considered. 3 I will say at once that the authorities on which the Crown and Mr Brassil rely would perhaps suggest that the legislature's intention has not yet been met. 4 The offender was one of a group of people who were involved in the cultivation of 227 cannabis plants at premises in Bexley. The offender was the subject of surveillance which indicated that he had attended this location at various times and telephone intercepts disclosed that as far back as 20 December 2008, that is, well before the plants were harvested in February 2009, the offender was visiting the premises for the purposes of cultivating cannabis plants. Specifically what he did cannot be determined precisely, except that in the middle of February 2009 a covertly installed listening device revealed that the offender was participating in the cutting and watering of plants. A significant matter is that whilst plants were harvested later on that month the offender did not attend and indeed declined to do so in conversations covertly recorded by police. 5 In assessing the objective gravity of the offender's conduct, I take into account that he has pleaded guilty to an offence of being knowingly concerned, that the quantity was just over the large commercial quantity, and that his involvement was relatively limited. Mr Brassil also relied on the circumstance that ninety of the plants were in propagating trays and were thus were far from mature, but I do not regard that as a significant mitigating feature at all. After all it was everyone's intention that the smaller plants would grow, indeed that is why they were being cultivated. Nevertheless I am satisfied that I should accept the submission made by both the Crown and Mr Brassil that the offender's conduct falls significantly below the middle of the range of objective gravity for the reasons I have identified. Of course the standard non parole period is not of direct application because of the offender's plea of guilty but it remains as a significant guidepost to the sentences that should be imposed. As I began these remarks on sentence there is clearly an intention by the legislature to treat offences of this kind very seriously indeed. 6 The offender was born in 1971 in China. He came to Australia about nine years ago but precisely what he has done since then is difficult to determine. He told Probation and Parole authorities that he had been living with his wife, for about four years. Prison records suggest that she appears to visit him once a month, the relative infrequency of visits being attributed to the distance that she has to travel. He, importantly, has no criminal history in Australia and, in a letter written to me, he denies that he had a criminal history in China. I will sentence him on the basis that therefore this is his first criminal offence. His English skills are limited, although he is apparently studying whilst in gaol, and working well in the laundry department. His pre-custody employment could not be verified, although he claimed to have had some periods of work assembling furniture and delivering furniture. His motivation for committing this offence he suggested, was that he had incurred gambling debts and that he was in the process of paying those off by working as he did for the other men more seriously involved in this offence. 7 On of those was sentenced by his Honour Judge Norrish QC on 24 September this year. When the matter was first mentioned before me this morning I raised with the parties whether it should not be Judge Norrish who should sentence this offender. However enquiries of his Honour's associate revealed that his Honour was not in a position to sentence Mr Nong until some four weeks hence, and in view of Mr Brassil telling me that he was going to submit that the time which his client had served on remand was sufficient as a non-parole period I decided to hear the matter. I was assisted by Judge Norrish's remarks on sentence which he revised very quickly for the assistance of other judges who would be sentencing other people involved in the enterprise. 8 It is of course important that I give effect to the principle of parity. This offender should not consider that he has a justifiable sense of grievance when he compares the sentence imposed on him with the sentence imposed on Mr Li by his Honour Judge Norrish. I note that consideration is being given to the possibility of a Crown appeal. I took that possibility into account in determining whether I would hear the matter today or whether I would list the matter before Judge Norrish, but because, if there was to be a Crown appeal it would not be heard for some time, and because of the submission that was ultimately made to me by Mr Brassil concerning the length of the time his client had served on remand, I decided that there would be no point in delaying matters until the Crown had decided whether it was going to appeal. 9 I do note however that the solicitor appearing before Judge Norrish pointed out to his Honour the need to not only say that conduct was above or below the middle of the range but also to specify how far above or below particular offending is. 10 The issue of parity has weighed heavily upon me. It is clearly the case that disparity in sentencing is apt to lead to a lack of confidence in the judicial process. As the High Court said in Lowe, disparity in sentencing is a badge of unfairness and public confidence in the administration of justice would be damaged if it was thought that the length of sentence that an offender would receive was affected by the identity of the judicial officer imposing that sentence. For that reason I will impose a sentence on this offender which is much less than I would have imposed had I not been constrained by the principal of parity. If, of course, if a Crown appeal is lodged and succeeds, then the basis of my lenient sentence would at least partially disappear. 11 Of course the offender pleaded guilty at any early stage and he is therefore entitled to a sentence which is twenty-five per cent less than it would otherwise have been. He has expressed his remorse in a letter to me, although I note there was no sworn evidence given to that effect. I cannot find he has good prospects of rehabilitation. His involvement in gambling is of course a matter of concern, and the absence of any reliable information as to what he has done in the past, and the absence of evidence from him as to what he plans to do in the future, are impediments to me finding that he has good prospects of rehabilitation. 12 Mr Brassil asks, as I said before, that I fashion a sentence such that his client has effectively served any non parole period which I would have imposed. I do not consider that I should accept that submission, although, as will be soon revealed, the extra period that the offender will have to spend in custody is not all that significant. 13 I make a finding of special circumstances; this is the offender's first time in custody. I consider that he would benefit from the supervision of Probation and Parole Service on his release from custody. I note that that will be difficult, given the language barrier, but that of course is not a matter which I can really take into account in a matter adverse to the offender. If the Service is unable to effectively supervise the offender because it does not have the resources to deal with an offender who does not speak English well, that is scarcely the offender's fault. 14 The sentence I impose on Mr Nong is as follows: 15 I set a non parole period of twenty months to date from 3 March 2009. It will expire on 2 November 2010. I set an additional term of a further twenty months, making a total overall sentence of three years and four months. The offender is eligible to be released to parole on 2 November 2010. ********** 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.