Truong v R [2009] NSWCCA 41

New South Wales Court of Criminal Appeal

CITATION: Truong v R [2009] NSWCCA 41

HEARING DATE(S): 6 February 2009

JUDGMENT DATE: 26 February 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 17; Adams J at 18

DECISION: 1. Grant leave to appeal 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - drug offences - cultivation of prohibited plants - alternatives to full time custody

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

R v Jurisic (1998) 45 NSWLR 209 CASES CITED : R v Puke (unreported, NSWCCA, 19 September 1997) R v Tedesco (1982) 7 A Crim R 430

PARTIES: Thi Don Troung (Applicant) The Crown

FILE NUMBER(S): CCA 2007/11762

COUNSEL: G D Wendler (Applicant) P A Leask (Crown)

SOLICITORS: AKN & Associates (Applicant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11762

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 23 April 2008

IN THE COURT OF CRIMINAL APPEAL 2007/11762

McCLELLAN CJ at CL JAMES J ADAMS J

THURSDAY 26 FEBRUARY 2009 TRUONG, Thi Don v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count that contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 she: "On 11 January 2007, at Fairfield in the State of New South Wales did cultivate a number of prohibited plants, to wit, 189 cannabis plants, which was not less than the commercial quantity applicable to that prohibited plant." 2 The maximum penalty for the offence is fifteen years imprisonment. The applicant was sentenced to a non-parole period of 18 months with a further term of two years. 3 The offence was detected when police executed a search warrant at domestic premises owned by the applicant. Inside the premises the police found cannabis plants of various size together with fans, transformers, air filters and heat lamps used for the cultivation of the plants. Electrical wiring including transformers was provided to the premises. In the laundry of the house the police located a garbage bag containing 3.415 grams of cannabis. 4 When interviewed the applicant admitted that she owned the premises. She ultimately said that she had lived there with her 12 year old daughter for the past two years but had vacated the premises in May or June 2006 and rented them to a woman. She was unable to provide any details of this person to the police. She said that when she returned to the premises on an occasion in mid 2006 she saw the plants in the house and she watered them. Initially she told the police she was not aware that they were cannabis plants however she later told the police that she knew they were cannabis and had kept them because she was in debt. 5 The applicant admitted that she had watered the plants, used chemicals on the plants and obtained smaller cannabis plant cuttings from larger cannabis plants. She told the police that the soil which was found in the house was for the purpose of the plants. When asked what she had intended to do with the plants she said she did not know. However, she also said that she was in debt and that she would get a lot of money if she "did it." The street value of the plants found by the police was estimated to be $378,000. 6 The applicant maintained that she was not the owner of the plants but rather was to be paid money for their maintenance. The sentencing judge was sceptical of this story particularly having regard to the fact that no details of the woman said to be the original owner of the plants could be provided by the applicant. 7 The applicant was born in Vietnam in 1964. She was 44 years old at the time of sentencing. She fled Vietnam in 1988 and came to Australia in 1990 with her partner and their two young children. The family lived in Canberra for about five years after their arrival and then came to Sydney. Because of her partner's abusive behaviour and gambling they separated in 1993. Her former partner continued to provide financial support until the middle of 2006 when he returned to Vietnam, married another woman, and withdrew any further financial provision. 8 The applicant's father lived in Vietnam. He died in 2006 which it would seem had a significant impact upon the applicant. The applicant owned the house where the offence was committed. However, the property has since been sold and before sentencing the applicant was living with one of her children who is still at school in a friend's premises. 9 The applicant pleaded guilty at the earliest opportunity and accordingly the sentencing judge allowed her a discount of 25% to reflect the utility of the plea. His Honour concluded that the applicant was engaged in a substantial illegal commercial venture and that her criminality fell a little below the middle range of offences provided by the statute. The sentencing judge considered the circumstances of the applicant's dependent child and was conscious of the hardship which may be occasioned to her if the applicant was sentenced to a period of full time custody. However, his Honour did not conclude that those difficulties were such as to justify a sentence which did not involve a prison term. 10 The applicant originally filed three grounds of appeal. However, the first ground was abandoned at the hearing. The applicant pressed an argument that the judge erred by finding that there was no alternative to full time custody and that otherwise the sentence was manifestly excessive. 11 The offence committed by the applicant was serious. The applicant was involved in using her property to a very substantial extent to grow cannabis which was obviously for the purpose of sale. She was not herself a user and sought to exploit the facilities for commercial gain. At the time of her arrest she had cultivated 189 cannabis plants. If she had been discovered with in excess of 200 plants she would have been convicted of the greater offence of cultivating a large commercial quantity of plants which carries an increased gaol term. 12 This Court has on more than one occasion emphasised that persons who are found guilty of cultivating cannabis plants as part of a commercial endeavour can, in the ordinary course expect a custodial sentence. The relevant principles were discussed by Spigelman CJ in R v Jurisic (1998) 45 NSWLR 209. In R v Puke (unreported, NSWCCA 19 September 1997) Smart J said that those involved in the hydroponic cultivation of cannabis for profit must expect to receive full time custodial sentences. There is a similar statement by Hope JA in R v Tedesco (1982) 7 A Crim R 430. 13 It was submitted to this Court that the applicant was a "mere crop sitter." In my judgment that submission must be rejected. The inevitable conclusion from the available evidence is that even if she did not initiate the enterprise she took it over and maintained the activity for the purpose of selling marijuana for profit. 14 I accept that the applicant has had a difficult life. It will never be easy for someone of limited education who by force of circumstances becomes a refugee and is required to settle in another country. When that person's circumstances are further exacerbated by difficulties in her domestic relationship the problems are greater. However, whatever be the difficulties such a person faces, our community does not tolerate the cultivation of illegal drugs and their propagation within the community. In my judgment the personal circumstances of the applicant did not justify a finding which entitled the sentencing judge to impose a sentence other than one of full time imprisonment. 15 With respect to the sentence imposed statistics from the Judicial Commission which were provided to this Court indicate that the non-parole period, in particular, was at the upper end of the range of sentences usually imposed. However, there is nothing to suggest that the sentence was outside the permissible range. The submission that the sentence was manifestly excessive must be rejected. 16 Although I would grant leave to appeal, the appeal should be dismissed. 17 JAMES J: I agree with McClellan CJ at CL. 18 ADAMS J: I agree with McClellan CJ at CL. *******