Wei Zheng WONG v R [2010] NSWCCA 160

New South Wales Court of Criminal Appeal

CITATION: Wei Zheng WONG v R [2010] NSWCCA 160

HEARING DATE(S): 25/06/2010 JUDGMENT OF: McClellan CJatCL at 21, 23; Hislop J at 22; Barr AJ at 1

EX TEMPORE JUDGMENT DATE: 25 June 2010

DECISION: Grant leave to appeal but dismiss the appeal.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 23(2)(a)

CATEGORY: Principal judgment

Regina v George (2004) 149 A Crim R 38 Regina v Morgan (1993) 70 A Crim R 368 Truong v R [2009] NSWCCA 41 CASES CITED : Bui v R [2008] NSWCCA 314 Nguyen v R [2009] NSWCCA 283 Pham v R [2009] NSWCCA 266 Phan v R [2010] NSWCCA 8

PARTIES: Wei Zheng Wong, Regina

FILE NUMBER(S): CCA 2008/19443

COUNSEL: P Linegar - Applicant P A Leask - Crown

SOLICITORS: S O'Connor - Applicant S Kavanagh - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Sides QC DCJ

IN THE COURT OF CRIMINAL APPEAL 2008/19443

McCLELLAN CJ at CL HISLOP J BARR AJ

FRIDAY 25 JUNE 2010 Wei Zheng WONG v REGINA Judgment 1 BARR AJ: The applicant, Wei Zheng Wong, seeks leave to appeal against a sentence imposed upon him in the District Court. He pleaded guilty in the Local Court to an offence under s 23(2)(a) Drug Misuse and Trafficking Act 1985, namely that on 23 May 2008 at Cartwright he knowingly took part in the cultivation of a number of prohibited plants, namely 255 cannabis plants cultivated by enhanced indoor means, which was not less than the large commercial quantity. He was committed to the District Court for sentence. On 18 August 2009 Judge Sides of Queen's Counsel convicted him of the offence and set a non-parole period of 1 year and 9 months, commencing on 30 July 2009, and a balance of term of 2 years. The head sentence of 3 years and 9 months was imposed against a maximum sentence of 20 years and the non-parole period of 1 year and 9 months against a standard non-parole period of 10 years. 2 On 23 May 2008 police were watching a premises at Cartwright. They could hear fans operating inside the house and could smell cannabis. They spoke to the applicant, who was inside the house. In the house the police found, distributed throughout five rooms, 255 cannabis plants in various stages of growth, heat globes and shades and heat extractors. Also found were transformers and two large power boxes with numerous extension leads. Only one room in the house was set up for occupancy. That was where the applicant was living. Police arrested him and asked him about the cannabis plants. He said that he had only just seen them. He denied looking after them. He was taken to the police station and formally interviewed. He said that he had been living at the premises since December the previous year, a period of about 6 months, and was renting from a man he named. He said that when he moved into the house there were already plants there and the man told him that they were "grass". The man allowed the applicant to live there without charge on condition that he water the plants once a day. He said that he never fertilised the plants, operated the lights or cut the plants. He said that he had to leave the premises every Tuesday and Thursday night. 3 The applicant was interviewed by a Probation and Parole Officer for the preparation of a pre-sentence report. The reporting officer was satisfied that he was being less than frank about the part he played in cultivating the plants and was attempting to minimise his culpability. He continued to say that he had only watered the plants and that he did not know whose they were. He insisted that he had done nothing wrong. 4 In due course his Honour expressed himself satisfied beyond reasonable doubt that in addition to guarding all the plants in the house the applicant was watering and fertilising them. He was satisfied that the applicant's motive was greed. The reward he received was equivalent to the rent he would have had to pay for such accommodation. 5 The applicant presented a subjective case. There were letters of commendation from relatives and others. The applicant had not previously offended. His Honour accepted that the applicant was a person of prior good character. His Honour was satisfied that the applicant had a sound work history and had family support. 6 His Honour noted, however, that the applicant had exaggerated or prevaricated about difficulties he claimed to have had in his family life. In view of his general lack of candour, particularly because of the way in which he tried to play down his culpability, his Honour expressed himself doubtful about the applicant's claims of remorse. 7 His Honour noted the plea of guilty in the Local Court and allowed a discount of 25 per cent for its utilitarian value. 8 The applicant was born in Malaysia and was 22 years old at the time of sentence. He had been educated in Hong Kong. After coming to Australia in 2007 he had lived with his mother and stepfather but after relations became strained he moved to the premises he was occupying at the time of the offence.