R v DINH [2016] NSWDC 131

District Court New South Wales

Medium Neutral Citation: R v DINH [2016] NSWDC 131 Hearing dates: 10/03/2016;19/04/2016 Decision date: 19 April 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Referred for assessment as to suitability for an Intensive Correction Order. Catchwords: Criminal - sentence, enhanced cultivation of prohibited plant - cannabis, non-exculpatory duress, cooperation. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Andreata [2015] NSWCCA 239 Briouzguine v R [2014] NSWCCA 264 DPP v De La Rosa [2010] NSWCCA 194 EF v R [2015] NSWCCA 36 Gattellari v R [2007] NSWCCA 5 R v Henry(1999) 46 NSWLR 346 Hili & Jones v R [2010] HCA 45 Huynh v R [2008] NSWCCA 216 Le v R [2006] NSWCCA 136 Nguyen v R [2007] NSWCCA 94 R v Godden [2005] NSWCCA 160 R v Thomson and Houlton [2000] NSWCCA 309 Reniga v R [2016] NSWCCA 36 Tan v R [2013] NSWCCA 164 Tiknius v R [2011] NSWCCA 215 Category: Sentence Parties: Director of Public Prosecutions - Crown Cong Minh Dinh - Offender Representation: Counsel: Mr Stewart - Offender

Solicitors: Director of Public Prosecutions – Crown File Number(s): 2015/192239

Judgment 1. HIS HONOUR: The prisoner, Cong Minh Dinh, appears today for sentence in relation to an offence that was pleaded on indictment as alleging that he, on 29 June 2015 at Punchbowl in the State of New South Wales, cultivated a prohibited plant, namely cannabis, cultivated by enhanced indoor means, being not less than the commercial quantity, namely 69 plants. 2. The offence carries a maximum penalty of 15 years' imprisonment and/or 3,500 penalty units. I am informed by the Crown, it has no standard non parole period. 3. The prisoner was born on 5 May 1978. As I would calculate his age, he was 37 years of age, about to turn 38 at the time of the offence. There are no offences on a Form 1. There are no related offences or backup offences, and the prisoner has spent no time in custody. He was arrested on 30 June 2015, in circumstances I will outline in some little length later. They are very relevant to the assessment of some aspects of this matter of some significance. 4. The prisoner had pleaded guilty at the Local Court and was committed for sentence. However, there was a defect in the Court Attendance Notice. He hence is entitled, in my view, to a discount of 25% upon the otherwise appropriate sentence to represent the discount for the utilitarian value of the plea of guilty. In my view, having entered the plea of guilty at the Local Court, he entered his plea of guilty at the first reasonable opportunity. The discount is in accordance with the guideline judgment in relation to such matters of R v Thomson and Houlton. There is no issue as to this aspect of the matter. 5. The facts are that on 26 June 2015, the New South Wales Police Force was granted a search warrant to search 23 Septimus Avenue, Punchbowl. It was a single storey house with a detached single storey granny flat at the rear of the property. When the police attended on 29 June, they found three Asian males and arrested them. One constable entered the property and walked to the granny flat. There he saw the three "Asian males" in handcuffs. Their names were Van Tuan Nguyen, Tom Truong Nguyen and Van Khou Hoang. 6. Police began a search sometime after 9 o'clock and videoed the search. An Ausgrid representative, that is a representative of an electricity supply company, arrived to basically disable what was an electrical bypass arrangement, which is commonplace in cultivations of this type, being cultivation of cannabis plants by an enhanced means. Tom Truong Nguyen told the police he lived at the residence with his father and mother. The three men were taken away and a search was conducted of the premises. The facts seem to suggest, although they do not explicitly state, that the search conducted was in relation to the principal premises, not the granny flat. The rooms were given various letters and all I need identify is the fact that in a room designated as "B" there was clear evidence of an enhanced means of cultivation, with light globes, light shades, electrical transformers and 56 cannabis plants, each in pots. In another room, there were a number of light globes and light shades and some empty pots. Police believe plans had been growing in this room although the plants had been removed. In a dining room area, there was an array of electrical equipment, and a tray of 13 juvenile cannabis plants, as well as a large number of transformers. In another room, a large number of items of an electrical character, such as shades and globes, as well as sticks put together as racks. These racks were believed to dry cannabis heads. Another room had potting mix and another electrical equipment, as did the bathroom, which also contained chemicals believed to be used in hydroponic cannabis cultivation. Other electrical equipment was found in a room designated as "P". 7. The plants have been identified by an appropriately qualified person as cannabis plants. All up there were 69 plants, being the 56 plants that I referred to in room B, and the 13 juvenile cannabis plants found in room H. Police seized various items for subsequent investigation, digital scales, laptops, iPhones and an iPad. Police returned the cannabis to the police station, and interviewed the three men that I earlier named. Another person called, Tony Nguyen, was arrested at the premises at Septimus Avenue at 12.30pm. Tony Nguyen and Van Hoang, to whom I earlier referred, declined to participate in an interview. The arrest of the then four Vietnamese men was discontinued and they were released. 8. Although it is not stated in the facts on 29 June the prisoner, having learnt that the police had searched the premises, apparently went to the police station near to where he lived to report that he was in fact the lessee of the premises. I accept his evidence to this effect. He subsequently spoke to his solicitor, and on 30 June 2015 he attended the Campsie Police Station and spoke to constables in the presence of a "Vietnamese speaking officer". He said to the police in the initial conversations that the plants at the premises, "I look after". He offender then, declining to further speak to his solicitor, participated, as I understand it, willingly in an electronically recorded interview. Paragraph 25 of the statement of facts sets out a summary of what the accused said Mr Stewart, in his helpful written submissions and other material, has extracted parts of the interview verbatim, which sheds some greater detail upon matters particularised in para 25. Essentially, he told the police that he had leased the premises in February 2015. 9. There is evidence of the lease which has been produced by his counsel, showing that he leased the premises for six months. The prisoner had a debt of $30,000 from gambling in clubs in the Bankstown and Yagoona area. He had been approached by the principals of this cultivation and they had told him if he worked for them for six months he would be paid a few hundred dollars each week and his debt would "go away". In relation to the matter, he said, according to the statement of facts, that he "didn't want his family to get into trouble". He went along with what the people told him to do. The extract from the interview conducted with him by the police reads as follows (Q 59), "I got into debt and then they came and gave us trouble and I didn't want my family to get into trouble, so I worked". He expressed regret for his conduct in the interview with the police. He did not know where the plants were being on sold to. All he did, he said, was to look after the plants. He was told he could smoke cannabis in the house. He did have a key to the house but "threw it away" out of "fear". He was told which property to rent. He did not think the landlord knew about the cannabis. He was told to reside in the premises for a period of time to familiarise himself with any neighbours, presumably not to attract suspicion. The people that were responsible for the cultivation in funding it, providing the relevant equipment and setting it up, would come every two or three weeks. He never cut the plants he said, nor arranged for them to be removed. 10. Subsequent DNA analysis found a DNA profile of the accused on various items, including latex gloves and the accused is clearly linked to the contents of the premises, relating to the cultivation, through that evidence. I will come back to some evidence the prisoner gave before me in relation to the matters I have outlined in a moment. 11. The prisoner had no prior criminal convictions or charges. He was born in Vietnam. He came to Australia in 2009. As I understand the family dynamic, he resides with his wife in rental accommodation in the Bankstown district. They share four children, although as I understand it, some of those children are from previous relationships. There is some detail about that in the material that has been provided by the prisoner's counsel. 12. The prisoner gave evidence in these proceedings and as I would understand it, adopted the detail of what was set out in the helpful written material provided by counsel, which includes not just submissions but of course, a summary of matters pertinent to the prisoner's subjective circumstances. It includes, in that material, the extracts that I referred to from the record of interview conducted with the prisoner. The parentage of the respective children is not important, but I do understand the prisoner is responsible for his wife and the four children. His wife receives a carer's benefit from the government in relation to a family member with a disability. The prisoner since his arrest in relation to the current matter set up a nail and beauty business and a certificate of registration of the business name, has been provided to the Court. He would appear to be making approximately $2,000 a week from the business but it would appear from the financial records that he has provided to the Court, including banking records, that it is a tenuous existence for his family, with the out of pocket expenses, including rent for his accommodation and food and the like, perhaps exceeding the income from the business. 13. The Community Corrections Services in its report reflected upon the fact the prisoner reported, "one of the co-accused had coerced him into committing the offence". It notes that enquiries from the Service reveal that the prisoner has the continuing support of his wife and has a close relationship with his wife and children. He has been a person, up until the commission of the current offence, and subsequently, who has been regularly employed whilst he has been in Australia. He expressed regret for his conduct to the Community Corrections Services and understood the seriousness of his offending. 14. With regard to the evidence he gave before me, in addition to the matters I have already identified, he said, in relation to the offending, that he regretted his involvement. He told me that he knew that what he was doing at the time was illegal. But he also said that the reason that he came forward to report himself to the police on 30 June and, as he said, the day before but was turned away was because he appreciated the fact that the police visit to the premises would reveal the wrongdoing of which he was aware he was involved. In my view, surrendering himself to the police in the manner in which he did and cooperating with the authorities, in the manner in which he did, is a very significant matter. It is true, as the lease agreement shows, that he leased the property in his own name. He clearly was exposed on the occasion, should it arise, of a police search of the premises. As I have said, police enquiries revealed DNA profile of the accused upon items related to the cultivation. 15. That having been said, it is not abundantly clear to me that it necessarily would have followed that, given the details on the lease, that the police would have easily located the offender within in the Vietnamese community. 16. As to the issue of the DNA profile, had one been developed, it is unlikely there would be a DNA profile of the prisoner on record. The same situation as a latent fingerprint being found. The prisoner, with no prior criminal convictions and no reason to have his DNA profile or his fingerprints on record, could not have been easily matched with such samples that were taken. I accept that his timely cooperation with the police in the manner in which I have described not only assisted in the prosecution of him but reflected the significant remorse on his part. In my view, it reflects very good prospects of rehabilitation. The Community Corrections Services noted that he was of low risk of reoffending. It confirmed he was no longer involved in gambling activities through enquiries of the prisoner and his family. He no longer associates with persons described as his "co offenders", although I note nobody has been charged. The prisoner provided details as to the people that had, or the person who had recruited him, but I do believe he was being untruthful in his vagueness or lack of detail in description. The facts of the matter are that he came forward with the full 'mea culpa' and in my view, had nothing to gain by withholding information. 17. As I understand it, he was educated in Vietnam to tertiary level. The information available to the Court, provided by his learned counsel, shows that he undertook a degree in Business Studies in Hanoi and graduated when he was 23 with a degree. Upon arrival in Sydney, he commenced a Master's degree at some private college and was studying for about a year. It was then that he met his wife and discontinued his studies. The precise details of the family arrangements are that there are two children born of his marriage, his wife had a daughter from a prior marriage and the prisoner had a son from a prior relationship. 18. In respect of his financial commitments, apart from his banking records, there is a summary of his outgoings under the heading, "Fixed Financial Commitments" in the material available to the Court. 19. In respect of the electronically recorded interview, I have quoted a part of that interview. I have not seen the entirety of the interview. I do not have a transcript of last Friday's proceedings as I may have earlier mentioned. I remember some detail provided by Mr Stewart from the bar table, beyond what was contained within the document, but I have no record of receiving the transcript of the electronic interview and it being made an exhibit in the proceedings. 20. His counsel dealt with a number of matters in his submissions, as did the learned Crown in her submissions. With regard to the submissions of learned counsel for the prisoner, he took me through the terms of s 21A and pointed out, by reference to s 21A(2), there were not in this matter what could be called "additional" aggravating factors that might arise under s 21A(2) beyond the fact the offence was committed for "financial gain". One might have thought in the scheme of things, that largely such offences were committed for financial gain. The character of the financial gain, as self admitted by the prisoner, was the payment of a couple of a hundred dollars per week to tend plants within the property and the promise, I note, to forgive the $30,000 debt. Events had not run their full course and I have got no doubt the loan sharks, with whom he was dealing in relation to his gambling debts - who figure prominently I hasten to say in many cases with which we deal particularly in relation to drug importation cases from Vietnam - have not, in my observation, experience and understanding, displayed a particularly good record for living up to their promises. Whether the prisoner's "gambling debts" would have ultimately been forgiven is not entirely clear or sure. There is always in the background that given a person with a gambling addiction, as the prisoner had, there is a question mark about the validity of the sums of money claimed. I am not saying the prisoner's account I do not believe. But whether he in actual fact owed as much as he believed he owed, whether he was being cheated, for example, in the form of gambling in which he was involved, is something about which one cannot be sure one way or the other. Then there are the dubious interest rates claimed. 21. His learned counsel, by reference to s 21A(3), took me through the issues that arise in mitigation from the material available to the Court. I accept firstly, in the absence of evidence as to matters concerning any prior cultivation that might have been reaped by others, any injury, loss, damage or harm was not substantial. I could not conclude that the activity was not part of organised criminal activity but the prisoner was not an "organisation" member as such. 22. Of course, I have no organisational chart but having sentenced many people, at least a dozen over the last four or five years, in relation to enhanced cultivation cases, there is a pattern or a methodology involved in such matters. Involving either planning or organisation beyond what one would inherently would expect in a cultivation case. The very character of enhanced cultivation involves obtaining a property, ensuring that it is disguised in some way, or internally blocked out from the outside world to prevent prior eyes observing what is going on, bypassing the normal electricity supply, and then provided a great deal of electrical equipment, as was the case here, in order for the cultivation to proceed hydroponically. That having been said, I accept that the prisoner was not part of the planning, and certainly in the context of his background and noting his willingness to admit his guilt and the timeliness of his cooperation, the prisoner is not part of organised activity. 23. It was submitted on behalf of the prisoner, that I should find as a mitigating factor, the prisoner was acting under duress. The prisoner did not give any evidence about this save in a very general way in terms of the adoption of matters contained within the material provided by his counsel. The issue of non exculpatory duress, was discussed at considerable length by Johnson J in the decision of Tiknius v R [2011] NSWCCA 215. His Honour, in that judgment, went through the principles that apply in assessing such claims of duress, particularly at [30] [54]. He concluded, in the matter, it being a Commonwealth sentencing exercise in the context of the Criminal Code, that in sentencing proceedings, non escape exculpatory address was available as a mitigating factor. It is specifically to be taken into account, one would have thought, having regard to the terms of the relevant subparagraph in s 21A(3) of the Act referred to by Counsel. 24. That having been said, his Honour pointed out that courts are entitled to approach claims of this sort with a significant degree of circumspection. Claims may be easily made concerning the alleged conduct of persons in another country but which are said to have applied pressure upon an offender, citing the decision of Le v R [2006] NSWCCA 136. That judgment is also relevant in this sentencing exercise in the context of considering the prisoner's gambling addiction, or gambling difficulties and debt, in the assessment of his moral or objective criminality. In Le Latham J discussed the relevance of such matters and noted the fact a person commits a crime in order to cleanse or have forgiven a drug debt is not of itself a mitigating factor. Johnson J pointed out the verification of a spurious claim of duress may prove difficult [45]. He made a number of observations about the reliance upon non exculpatory duress. He was, particularly in the facts of that case, addressing both drug supply and importation cases. In the matter, he pointed out that it may be a case where non exculpatory duress is relied upon greater weight may need to be given to general deterrence. He noted at [51], that: "The grooming and pressuring of persons to become involved in drug importation offences, has been said to be: 'unremarkable features of many importation offences' (again citing Le)...at times, the persons targeted by those recruiting them, are said to have submissive or compliant personalities, or to be naïve". 1. He noted there was ample authority for the proposition that general deterrence was not excluded by the existence of threats to commit crimes and sometimes the fact a person has succumbed to such threats may warrant greater weight being given to general deterrence, given the purpose of that aspect of the purposes of sentencing under s 3A. In other words, greater weight should be given to general deterrence to deter others from not succumbing to the threats. 2. I could not conclude on balance, that the prisoner was under duress. This is no criticism of learned counsel or the prisoner for that matter. He entered the witness box. He was open to be cross examined about any matter, it would seem to me, relevant to the sentencing exercise on the part of the Crown. But the truth of the matter is, beyond what is in the interview and beyond what is asserted by his counsel, little was said, in fact nothing was said, to develop the issue. That having been said, I am prepared to accept the context of the matter is one of a man who without criminal connections, succumbed to the temptation to avoid significant debt arising out his then weakness for gambling, in circumstances where he had an understanding within the milieu in which he lived, that there would be consequences for him if he did not agree to participate in this crime, or alternatively, if he could not pay back the $30,000. I have no doubt he could not afford that sum. Of course, one might say that a person who places themselves in dubious financial position of their own making is not to be in any way 'accommodated', if that is the correct expression. On the other hand in the real world one must understand that some people are capable of making decisions by deliberation and the exercise of freewill. Other persons, unfortunately, succumb to decision making in positions of considerable personal pressure which their personalities, or their weaknesses, have placed them. 3. I note, without getting into the philosophical discussion that was developed in the guideline judgment of Henry in respect of armed robbery matters from 1998, this was an issue of tension between the majority of the Court and Simpson J. The learned Chief Justice speaking for the majority described drug addiction ultimately as a matter of choice. Simpson J viewed that drug addiction is not necessarily a matter of choice. Those various observations are more likely to be seen as obiter observations in the scheme of things. However, directly relevant to the matter in which the Court adopted a guideline in relation to armed robbery matters. Wood CJ at CL in his judgment (at [273]) noted in respect of claims of drug addiction, that although it is not a mitigating factor it might be relevant in a range of ways, to the impulsiveness of offending, in the assessment of the objective facts. It may be relevant subjectively to assessing the progress of the rehabilitation of an offender, whether an offender was at the 'crossroads' and other matters which have been and can be translated across to other areas of addiction, including a gambling addiction. I am not equating this addiction to a particularly severe form of drug addiction which is at the heart of the observations made by Wood J. 4. Having made all those observations and not being able to conclude duress as a mitigating factor, the claim of the prisoner as to the circumstances as to how he became involved in this offending, is to my mind, truthful. It is truthful in the context of him freely admitting his guilt in a timely fashion to the police, giving evidence and making himself available for cross examination if needs be. It seems to me to be a matter relevant to the issue of his moral culpability. The reason I say that, in the middle of dealing with s 21A(3), is because one of the features of decisions of courts superior to mine, relating to the sentencing of offenders in relation to such offences, is the issue of determining whether a person has committed the crime for profit. Mr Stewart, in his written material, provided a survey of cases that dealt with the sentencing of offenders in relation to commercial and large commercial quantities of cannabis cultivated. 5. Many of the cases involved, of course from the numbers of plants, cultivations far larger than the one with which I am concerned. I have regard to those judgments but they provide little in the way of assistance. The minimum number of plants required to be cultivated to constitute a commercial quantity of cannabis plants is 50. A large commercial quantity, I was informed by the learned Crown, was 200 plants. With no disrespect to the endeavours of Mr Stewart, I considered a number of other authorities which deal with matters of principle rather than figures in respect of the sentencing of offenders in relation to offences under this particular provision or in relation to like provisions. I pause to point out it is well known there are difficulties in relying upon so called "comparative cases". The decision of Briouzguine v R [2014] NSWCCA 264, particularly at [75] [78], spoke about the difficulties in this regard. Bellew J in that judgment, reflected upon comparative sentencing exercises as well in that matter. Recently, in another context from a case I dealt with last Friday concerning possession of an unauthorised firearm, Davies J, speaking for the Court in the decision of Reniga v R [2016] NSWCCA 36, a decision delivered on 11 March 2016 - in the context of dealing with the matter from the perspective of an appellate court reviewing material available to it in the hearing of the appeal - noted reliance upon comparative cases in determining sentence appeals is "neither helpful nor supported by authority". 6. Referring to Huynh v R [2008] NSWCCA 216, his Honour noted that: "The sentencing of offenders is an instinctive process and not a mechanical one. The process does not involve a comparison of similar cases where the sentence with the case in hand, is increased or decreased, for differences that can be found. Certainly the instinctive process is informed to some extent by comparative cases but the correctness of a particular sentence, when being reviewed in a higher court, is seldom determined by examining those comparative cases, to see how the sentence in question, fits with the sentence in those cases. At best, those cases provide a range of what has been thought appropriate in the past, but that range must be measured against the maximum penalty". 1. He cited amongst other cases, De La Rosa [2010] NSWCCA 194, at [303] [304], a passage approved by the plurality in Hili & Jones v R [2010] HCA 45, (particularly at [54]). His Honour also referred to the use of statistics. He noted statistics were a limited "tool". Obviously one does not know what the underlying factors or relevant considerations involved in the fixing of a particular sentence. Statistics might not provide any assistance, particularly where other offences are to be taken into account on the Form 1. They, at best, as Spigelman CJ pointed out in Bloomfield in 1998, can provide a range for an appellate court, (Reniga at [46] [48]).. 2. I am mindful of course, many of the comments made by Davies J and by the other authorities to which his Honour referred, are concerned with the value of such material on appeal. To try and argue for example, a particular sentence was excessive by comparison to comparative sentences. I appreciate, of course, the role of the Court at first instance, is somewhat different. The assistance provided by comparative cases, may be greater, it may be lesser - the same as statistics. There are different considerations at play. One of the matters that needs to be always borne in mind is that a court such as mine, an inferior court, is guided by the range of penalties that are imposed by superior courts, or even by colleagues, to give the Court some indication of an appropriate "range", bearing in the mind the observations of the High Court of Australia in Markarian from 2005 and the need to give 'individual justice' in each sentencing exercise. In that context, of course, it is not uncommon in sentencing in relation to offences of this type, where people are employed as agents, as this prisoner was, that the person will have no prior criminal convictions. Such a person will be hired to do such tasks as are required because such a person will not attract suspicion. I am very mindful of that. The same observations may be made of a courier. There is no point sending someone into Vietnam or China to bring back border controlled drugs, if they have prior convictions. They will only attract attention on their return to Australia. 3. There were, however, some other judgments that were brought to my attention by Mr Stewart, in his submissions. He took me to a decision in Andreata, [2015] NSWCCA 239, which involved the cultivation of prohibited plants, in a similar number but in circumstances where the offender, as I understand the matter, was concerned with the supply of cannabis and could rightfully be seen as having a more substantial role in the cultivation of the benefits to be obtained from the cultivation. Although he claimed he was babysitting the crop. That judgment involves a survey of a number of judgments (at [40]), many of which concerned facts, at least in terms of the numbers of plants which is only one relevant matter of course, more serious than this. Although I note the decision of Tan [2013] NSWCCA 164, involving the cultivation of 53 plants, and the sentence imposed therein, is greater than I am contemplating here. Although I do not know the full details of the Tan subjective case nor the precise basis upon which he was sentenced. 4. Some cases, however, that are known to the Court with the benefit of the Sentencing Bench Book have been of some assistance. Bringing me back to a matter I averted to earlier in my judgment, the decision of R v Godden [2005] NSWCCA 160, reflects upon sentencing in relation to "cultivation" cases. In that matter, the cultivation of prohibited drugs to wit, cannabis, by non enhanced means involving 390 plants but rendering the offender liable to the same maximum penalty as is here. Furthermore, the offender was in possession of 280 grams of cannabis leaf and it is clear from the facts of the case he was himself a cannabis user and a person familiar with cannabis in a range of ways. 5. R S Hulme J observed at [28], "It is clear that profit making activity from going and selling illegal crops and drugs is an offence the nature of which will usually attracts a term of imprisonment". 6. That statement of principle finds its way by reference to the principle, that where profit is obtained from cultivation, a term of imprisonment will be imposed unless there are exceptional circumstances. In the Bench Book, another decision that I referred to this context is the decision of Nguyen [2007] NSWCCA 94. That offender pleaded guilty to cultivation by non enhanced means for an offence that carried the same maximum penalty, to cultivate the 278 plants. The facts are not that important. What are significant are some observations of principle that appear at [18] [19]. Hulme J again reflected that the, "sole motivation seems to have been profit". The prisoner denied the use of the drug himself. He reflected upon the significance of the quantity of the crop. He noted, in relation to sentencing of course, that subjective matters were to be taken into account, including findings of good character, although he said that that factor has less weight in cases of deliberate drug offending. He also pointed out, as was pointed out many times before, that "subjective factors must not be allowed to overwhelm the sentence process at the expense of giving proper weight to the offence of subjective seriousness". (see [18] [25]). In that matter of Nguyen, the offender was sentenced to two years six months' imprisonment with a "non parole period" or "minimum term" of 15 months' imprisonment. 7. I have also had regard to the decision of Gattellari [2007] NSWCCA 5. It is in the context of these judgments that I have considered the matters advanced on behalf of the prisoner, both as to the assessment of the prisoner's level of criminality and the relevance of the subjective matters that were referred to in the submissions of his counsel. 8. The finding I made ultimately, in relation to the offender's role, was that of a labourer. However, importantly, in my view it could not be regarded, although he was paid, that he was committing the offence for true profit. He was neither a principal in the setting up of the cultivation, nor profited in the common understanding of that word, from the fruits of such cultivation. Certainly, there is no evidence of his involvement in the distribution of cannabis and the like. I have concluded that he was a person without any criminal convictions. That he was a person of good character. I am satisfied that he is unlikely to reoffend, and has excellent prospects of rehabilitation, and shown relevant remorse, taking responsibility for his actions and acknowledging his wrongdoing. He pleaded guilty to the offending but he receives a discrete discount for that. There was a considerable degree of valuable pre-trial disclosure by the prisoner, a mitigating factor under s 21A(3)(l). 9. So far as assistance to law enforcement authorities, this is claimed as a mitigating factor. The Crown disputes this. Clearly he is not entitled to any discrete discount. My view is that he provided assistance in the context of his pre-trial disclosure and certainly, the timeliness of his assistance was a critical matter in his favour. 10. That brings me to the Crown's helpful written submissions. The Crown notes the circumstances of the matter, citing Godden, as setting out the essential principle. It is a matter I have discussed at some little length. The Crown submitted that he was not entitled to consideration for any assistance to authorities, a matter that I have discussed. The Crown says however, "this is also not a case where he has voluntarily disclosed his unknown guilt". That is correct. Clearly, the cultivation had been found. Hence the reason for him surrendering himself. I come back to that highly significant matter in the overall assessment of this case, of the prisoner's willingness to make himself available for arrest, in circumstances where his identify might not have been as easily established as might have been thought. 11. The Crown submits "a strong Crown case". As the lessee of the premises with DNA material linking him to items within the cultivation, I accept that this is true. That having been said, the cooperation of the prisoner in the manner I have outlined as the Crown concedes, is relevant to matters such as remorse and prospects of rehabilitation. 12. The Crown, in its submissions, deals with the issue of remorse, citing some judgments such as Ceissman from 2004. With regard to "economic duress", the Crown cites Wood CJ at CL, noting economic duress was not a mitigation for the commission of an offence of breaking and entering, and stealing in company. Ceissman was a case of which I am familiar as to its facts and details, involving a person whose participation of the offence stemmed from his independent criminal conduct arising out of his continued association with Korean criminals. That cannot be said of this prisoner. 13. Thus, having regard to the level of objective seriousness of the offending, noting the plants, although that is not decisive, noting the prisoner's role and noting the circumstances in which he was introduced into the offending in the context of matters that are relevant to the assessment of his moral culpability, I have concluded his offending is at the lower end of the scale of offences contemplated by this particular section. I have regard to s 5 of the Act, in the context of all the relevant matters, including the discount to which the prisoner is entitled. I have concluded ultimately, that the term of imprisonment I shall imposed upon the prisoner, shall not be greater than two years. 14. Thus, in the circumstances of matter, I have regard to the decision of the Court of Criminal Appeal in EF [2015] NSWCCA 36, and I have determined at this point of the proceedings, that rather than impose a term of imprisonment upon the prisoner, which would be required of him to serve a term of imprisonment immediately, I should have him assessed for his suitability for an Intensive Correction Order. In undertaking that consideration, I have obviously had regard to s 3A Crimes (Sentencing Procedure) Act, particularly all the purposes of sentencing beyond general and personal deterrence. I see no need for personal deterrence in this matter for this particular offender, nor do I see a need to protect the community from the offender. I appreciate that I am required to make him accountable for his conduct and to denounce his conduct, and recognise the potential for harm at least, although there is no specific victim of the crime. I am required also to promote his rehabilitation. 15. It seems to me, in the overall scheme of things that all those objectives of sentencing, or purposes of sentencing, can be met potentially by the course that I have foreshadowed. 16. Could stand up please, Mr Dinh. In relation to the offence to which you pleaded guilty, you are convicted. I have considered s 5(1), Crimes (Sentencing Procedure) Act, and I am satisfied for the reasons that I have given that no penalty other than imprisonment is appropriate and the sentence will be a period, for a period of no more than two years. You are referred for assessment as to your suitability for an Intensive Correction Order, as a means of serving your sentence. 17. Take a seat sir. 18. In relation to the matter Madam Crown and Mr Stewart, I am going to stand the matter over for sentence. We will need six to eight weeks for a report. I am not sure whether it is six or eight weeks for ICO report but it's something in that order. I was going to suggest, subject to mutual availability, a date like Friday 17 June. 19. STEWART: That's suitable to me. 20. HIS HONOUR: How are you placed Madam Crown? 21. KUPPESAMY: I'm available on that date your Honour. 22. HIS HONOUR: Mr Dinh's matter is adjourned to 17 June 2016. I'll request that a copy of the transcript of my remarks be taken out, so I can revise it and made available to the parties before the next date. Madam Crown, I'm going to continue the prisoner's bail, to facilitate the preparation of the report. I propose to direct Community Corrections prepare an Intensive Correction Order assessment report on or before 17 June. I will require the offender, as a condition of his bail, to report to Bankstown Community Corrections services within seven days from today, to facilitate the preparation of the report. 23. Mr Dinh, do you understand you're required to report to the Community Corrections service at Bankstown within seven days of today? 24. OFFENDER: Yes, thank you your Honour. 25. HIS HONOUR: Thank you. You can leave the dock. Thanks very much. Just take a seat behind the counsel. 26. Now is there any other matter, Madam Crown, at the moment? 27. KUPPESAMY: No your Honour. 28. HIS HONOUR: Is there any other matter from you at the moment, Mr Stewart? 29. STEWART: No, may it please the Court. 30. HIS HONOUR: My remarks hopefully will be transcribed relatively soon. To be fair, reporting services staff is understaffed and overworked. I'll ask my associate to put in a request, but it will be done as quickly as possible and I'll certainly revise as soon as it's reasonable in the circumstances. Again, we're very grateful for reporting services for all the hard work they do and we know how desperate they are with their resources. So we'll just wait and see what happens. 31. Mr Dinh, you'll be required to be of good behaviour during the period of time that I've adjourned the case and you will be required to comply with the directions of Community Corrections services. 32. ADJOURNED TO FRIDAY 17 JUNE 2016