District Court New South Wales Medium Neutral Citation: R v NGUYEN; R v TRAN [2011] NSWDC 135 Hearing dates: 1 July 2011 Decision date: 01 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: In each case sentenced to imprisonment. Mr Tran's sentence consists of a non parole period of eighteen months and a head sentence of two and a half years. My Nguyen's sentence consists of a non parole period of ten months and a head sentence of eighteen months. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Cultivating prohibited drug by enhanced means - Knowingly take part in cultivation - Using electricity without authority - Parity Legislation Cited: Drug Misuse and Traffickinig Act Category: Sentence Parties: The Crown Thi Puong Loan Nguyen Giang Nam Tran Representation: Mr G Jones - offenders Director of Public Prosecutions A K N and Associates Solicitors and Barristers File Number(s): 2010/307744 2010/307833 Judgment 1HIS HONOUR: It is undeniable that the community has become increasingly concerned about the hydroponic cultivation of cannabis. That concern is reflected in an amendment to the Drug Misuse and Trafficking Act creating the offence of cultivating a prohibited plant by enhanced means. 2The concern arises because of a growing awareness that cannabis cannot accurately be described as a soft drug; that it causes substantial harm both to the users of that drug, and to the community in general; and because the enhanced means usually have the effect of increasing the concentration of tetrahydrocannabinol in the plants, which make the drug thereby produced much more potent. 3In those circumstances it is incumbent upon the Courts to respond appropriately when offences such as those currently before me are detected. 4I have before me a husband and wife for sentence. The husband, Giang Nam Tran, pleaded guilty at the earliest opportunity to an offence of cultivating a commercial quantity of a prohibited plant, by enhanced means. 5His wife, Thi Puong Nguyen, pleaded guilty to knowingly taking part in such an offence. 6On 15 September last year police executed a search warrant on premises at Rockdale after they had been conducting surveillance there. When they executed the search warrant both the offenders were present. As police gained entry Mr Tran was seen to be wearing gardening gloves. Ms Nguyen ran to the back of the house but was detained. 7As police examined the inside of the house they found that the vast majority of the space inside had been converted to rooms for the purpose of growing cannabis. Only the lounge and kitchen were habitable, with all other rooms containing cannabis plants at various stages in the growth cycle. 8The usual paraphernalia was there: high strength halogen lighting; water pumps; and an exhaust system. There were chemicals and length of hose as well. 9In total 139 cannabis plants were found. To put that in context the commercial quantity is 50 plants, and the large commercial quantity is 200. Also located at the premises were four garbage bags of cannabis leaf in a partly rotting state, that weighed 12.886 kilograms, and also a resealable plastic bag containing 101.1 grams of cannabis heads. 10Police also discovered that the electricity metre had been by-passed. 11It is appropriate to note at this stage that Mr Tran asked me to take into account three other offences when I sentence him relating to the circumstances I have just described. He wants me to take me to take into account an offence of using electricity without authority, possessing 101.1 grams of cannabis heads, and 12.886 kilograms of cannabis leaf. 12Ms Tran spoke to police at the premises. She told them that she knew the cannabis plants were drugs, the plants were watered by her husband, and that this was the first time they had cultivated cannabis. 13The identification of the role of the offenders in this matter has not been easy. There is, in each case, an agreed statement of facts tendered. As it is agreed I will accept its contents. The agreed statement of facts says that Mr Tran's role was to maintain the crops of cannabis plants by watering, feeding, trimming, and generally tending to the cannabis plants. He was clearly doing that at the time police arrived. 14The role of Ms Nguyen is said to have been to provide support to her husband in the cultivation of the cannabis to the extent that she maintained the exterior of the premises to look like a legitimate residential premises by moving the lawns, and when required she further assisted with keeping the interior clean and taking away materials associated with the cultivation. 15The agreed statement of facts continues to note that by actively preventing the premises, and those involved in the cultivation, from coming under suspicion or discovery the offender, that is Ms Nguyen, was knowingly taking part in that cultivation. 16The rest of the evidence as to the offenders' roles is to be found elsewhere. I was told from the bar table that, by consent of the parties, I should be advised that the people that rented the premises were not these offenders, and that in fact those who did rent the premises had rented three other houses as well. I was also told that the fingerprints of a Mr Hung had been found on items within the premises. But the rest of the evidence about the offenders' roles is contained in statements made by the offenders to either the author of their respective pre-sentence reports, or a psychologist, who prepared a report concerning Mr Tran. 17In that material it is suggested that Mr Tran and his wife got involved when he was approached by another person with whom he played soccer. That person told him that he had to go back to Vietnam for a short period of time and that he needed someone to look after his plants. The evidence would suggest that Mr Tran at that stage did not know that the plants were cannabis plants, or otherwise illegal, but did discover what they were when he went to the premises. 18It is to be noted that neither Mr Tran nor his wife, Ms Nguyen, gave evidence in the Court today. The relevance of that of course is that there is no direct evidence as to the hearsay matters to be found in the various reports, nor was the Crown able to test their assertions by way of cross-examination. On the other hand, the Crown well knew, or at least knows now, of the hearsay assertions made in the various reports, and has not called, or tendered evidence to contradict it. These sorts of difficulties have exercised the minds of various judges over the years, including the High Court. 19I consider that to sentence the offenders on the basis that they were more highly involved than they assert in the various reports would require me to be satisfied beyond reasonable doubt that their involvement was at a higher level. Quite clearly, in the absence of any evidence to that effect, I cannot be satisfied. I will therefore sentence the offenders on the basis that they did not set up the operation but were assisting others who did so for financial gain. In this respect, although there is no evidence that Ms Nguyen was going to be paid, I will sentence her on the basis that she was involved in this matter because of the prospect of financial gain to her husband. 20Neither offender is a user of drugs. Just as much as those who supply drugs, who are not themselves users of those drugs, are to be regarded as being in the worst category of drug supplies, those who cultivate drugs but who do not use them themselves, must also be regarded as in the worst category of drug cultivators. This was a cynical exercise in which the offenders were prepared to profit at the expense of other members of the community who suffer through the use of drugs such as those they were cultivating. 21Although neither offender was a principal, that does not mean that their role was anything other than serious. In each case they performed an essential role. It was Mr Tran's job to cultivate the plants, and it was Ms Nguyen's job to assist him, in particular by making the premises look legitimate. The criminal enterprise was much less likely to succeed if Ms Nguyen did not do what she did, and it was definitely going to fail if Mr Tran had not done what he did. 22Neither of the offenders has any prior criminal history. They were both hard working and, it would appear, industrious. They do not have any children. 23Ms Nguyen was born in Vietnam, her formative years were characterised by arguments between her parents until they eventually separated when she was aged sixteen. Ms Nguyen then lived with her mother until her mother came to Australia in 2005, Ms Nguyen following her a year later. 24Ms Nguyen met her husband, the co-offender, when she was eighteen, and they married when she was about twenty-five. Her husband followed her to Australia in 2009. 25Ms Nguyen completed schooling in Vietnam but did not go to university. She studied English, tourism, but stopped those studies when she came to Australia. Since then she has worked as a nail technician. A reference tendered on her behalf attests to her being a hard working, efficient, friendly employee, and one who was easy to get along with. 26A pre-sentence report, again in hearsay form, notes that Ms Nguyen only got involved in this offence after her husband ignored her request that he not get involved himself. 27Mr Tran is a little bit older than his wife. He too was born in Vietnam and, as I have mentioned, came to Australia after his wife. His mother died whilst he was still living in Vietnam, his father re-marrying, and he had a good relationship with his step-mother. 28Once he came to Australia he worked in various jobs, he had been trained as a welder in Vietnam, but he worked in various different occupations until his arrest on this matter. There is apparently work available for him on his release from custody. 29Since being remanded in custody he has continued to show himself as being an industrious person. A substantial bundle of certificates was tendered concerning the education and vocational training he has undertaken whilst in custody. 30I should have mentioned earlier that both offenders pleaded guilty at the earliest opportunity and so the sentences I will impose upon them are twenty-five per cent less than they otherwise would have been. As there are two offenders I must also take care to ensure that I apply the principles of parity and that neither offender has a justifiable sense of grievance when he or she compares the sentence I have imposed upon the other offender. 31Mr Jones suggests that a sentence other than full time imprisonment would be appropriate for Ms Nguyen. He relies on a number of matters, including the fact that she played an ancillary role to that of her husband, she has no prior convictions, what he said were compelling subjective features, that she has employment and a good work ethic, that the drug trafficking enterprise would have continued even without her involvement, and that she has spent about three months in custody. He therefore suggests that a suspended sentence or, as a fall back position, an intensive corrections order would be appropriate. I do not agree. 32As will ultimately appear, I will impose a sentence on Ms Nguyen which is less then two years, that would mean that she would be eligible to be considered by me for a suspended sentence or ICO, or indeed other alternatives such as home detention, but it remains the case that she must be significantly punished for what she has done, even given her good prospects of rehabilitation. 33General deterrence requires that those who are detected committing offences of the kind Ms Nguyen has committed, even where they perform a subservient role, must receive a sentence which can appropriately be described as punishment, unless of course there are unusual circumstances justifying a less severe sentence. 34In this regard I was greatly assisted by a table prepared by Mr Jones' instructing solicitors. It is apparent that his instructing solicitors have had a great deal of work involving offences of this kind. I should explain that although almost all of the cases concern offenders with names that are apparently of Vietnamese origin, that is explained by the circumstance that Mr Jones' instructing solicitor speaks Vietnamese and has contacts in the Vietnamese community. 35Mr Jones took me through a number of cases where sentences of other than full time custody were imposed. It is to be noted that in many such cases, as the table accurately and fairly reflects, there were unusual circumstances not appropriate here, sometimes involving hardship to third parties. In such a case a non custodial sentence could clearly be appropriate, but there is nothing of that kind present in this matter. 36In Mr Tran's case, Mr Jones concedes that a full time custodial sentence is appropriate, but nevertheless reminds me that Mr Tran also has no priors and a good work ethic, and that his involvement was not that of a principal. 37In both cases, that is of Ms Nguyen and Mr Tran, I will take into account that this was not a single act. The agreed statement of facts indicates that there were multiple acts, each of a criminal kind. The offenders did not do one thing and then immediately regret it, instead on each occasion they tended the plants - in Mr Tran's case - or assisted with the maintenance of the house to make it look like someone was really living there - as in Ms Nguyen's case, they were committing a criminal activity. There is no suggestion that they would have stopped either, were it not for the intervention of police. 38As with Ms Nguyen, but even more so in Mr Tran's case a sentence which punishes him significantly is required. 39The sentences I impose are as follows: Mr Tran is sentenced to imprisonment. I set a non parole period of eighteen months, which will have commenced on 15 September 2010, the day on which Mr Tran was arrested. It will expire on 14 March 2012, on which date I order that he is released to parole. The head sentence in that matter will be two and a half years. 40In Ms Nguyen's case, taking into account two months and twenty-four days pre-sentence custody, I sentence her to imprisonment for a period of ten months. If my mathematics are correct - and I ask the parties to check this - that sentence will have commenced on 6 April 2011. The non parole period of ten months will expire on 5 February 2012, on which day I order that she is released to parole. The head sentence in that matter is one of eighteen months. 41I should of course indicate that I have taken into account the form 1 matters in sentencing Mr Tran. ********** 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: 26 September 2011