District Court New South Wales Medium Neutral Citation: R v Duong & R v Phan [2016] NSWDC 414 Hearing dates: 16 December 2016 Date of orders: 16 December 2016 Decision date: 16 December 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the offender Duong, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 4 years. For the offender Phan, sentenced to imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years. Catchwords: CRIMINAL LAW – Sentence – "Foot soldiers" – Cultivate large commercial quantity of a prohibited plant by enhanced means – Knowingly take part in the cultivation of cannabis – Using electricity without authority. Legislation Cited: Drug Misuse and Trafficking Act Cases Cited: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Category: Sentence Parties: The Crown Duc Duong Hung Phan Representation: Counsel: Mr R Keller- for offenders Duong and Phan Solicitors: Director of Public Prosecutions File Number(s): 2015/325879 – Duong2015/325897 - Phan SENTENCE 1. HIS HONOUR: Mr Keller has just described his clients as "foot soldiers" in a large scale cultivation of cannabis. That categorisation appears to be accurate. There is no suggestion that Duc Duong or Hung Phan who appear for sentence today, having pleaded guilty at the earliest opportunity to offences of cultivating a large commercial quantity of a prohibited plant, by enhanced indoor means were anything other than labourers who have decided to involve themselves in this serious criminal enterprise because they were short of money. 2. Indeed, it is rare that the principals in such operations ever come before the Courts. Such people rely on offenders such as the two whom I am sentencing today. The principals generally work in the background, leaving people like Mr Duong and Mr Phan at risk of discovery and ultimately punishment. But it has to be recognised that these offenders went into this operation very much with their eyes opened. It would be impossible not be aware of the scale of the operation and what its ultimate objective was. 3. Matters came to the attention of the authorities when police began investigating some premises in Mascot. They maintained surveillance on the premises and watched as on a number of occasions both offenders entered and left the premises. At some stage while the premises were unoccupied, police were granted a search warrant to enter the premises and only a short time thereafter, the following day, when the offenders returned they were arrested. 4. The offenders at first claimed to have only done things such as tidying up and cleaning. When this matter first came before me I raised with the parties whether the offenders were actually admitting their guilt in relation to the charge of knowingly taking part in the cultivation of cannabis plants. The only admissions that they had made were admissions to tidying up but neither admitted to doing what I considered amounted to taking part in cultivation. the definition of "taking part" in s 6 of the Drug Misuse and Trafficking Act, requires that the person takes or participates in any step or causes any step to be taken in the process of cultivation. Turning then to the definition of cultivation and cultivate, that means to sow or scatter the seed produced by the prohibited plant and to plant, grow, tend, nurture or harvest a prohibited plant. I do not believe that tidying amounts to the taking of any step or participating in a step in sowing or scattering, planting, growing, tending, nurturing or harvesting the cannabis plants. 5. The matter was therefore adjourned so that Mr Keller could obtain further instructions from his clients. A supplementary statement of facts has now been tendered in each case. The offenders now admit that they attended premises not only to do general cleaning but to also water the plants by turning on the water pump and checking on the water pipes as directed by another unknown person. That of course does amount to participating in the cultivation of cannabis plants. 6. After the offenders were arrested, police went back into the premises and took photographs. The photographs show a very sophisticated hydroponic set up for the growth of cannabis plants. There were three separate rooms constructed, with a considerable amount of equipment to feed the plants, to water them, to cool the area and to provide light for the plants growth. As is common, the electricity meter was bypassed and indeed the offenders have each asked I take into account offences of using electricity without authority, admitting to the commission of that offence on the Form 1. 7. A total of 653 plants were found. That is more than three times the large commercial quantity. The criminality of the offenders was, despite their low level in the hierarchy, nevertheless significant. They committed their offences for financial gain. The number of plants was significantly more than the large commercial quantity and it was apparent to even a casual observer that a great deal of effort had been put into this illegal enterprise, an enterprise in which they admit they participated. 8. Both offenders were born in Vietnam. Mr Duong has only come to Australia in recent times, about 12 months ago, and has no criminal history. Mr Phan on the other hand has been in Australia for more than ten years and, significantly, has a previous conviction for cultivating cannabis. Mr Phan is clearly not entitled to any leniency on the basis that this is his first breach of the criminal law. He has other offences on his criminal history too. As Mr Keller, who appears for both offenders today, submitted, it would not be surprising if I impose different sentences on the two offenders to reflect their different criminal histories. 9. Mr Duong is in his late thirties. He came from a loving and supportive family. They were farmers in Vietnam. He left school in his adolescence to financially assist his parents. The offender had no difficulty obtaining and maintaining employment until securing training as a baker. He married and he had children. He came to Australia, as I said, a relatively short time ago. Once in Australia, he has obtained permanent employment as a store manager and enrolled his daughter in school. 10. His involvement in this offence came about after he met a man who he knew as Cuong at a coffee shop in Bankstown. During that conversation, he was offered some cash in‑hand work, to clean and maintain the lawn at Cuong's warehouse. Mr Duong told a psychologist- that they exchanged telephone numbers and that shortly thereafter, he went to the warehouse, met Mr Phan, were they both did some cleaning and mowing of the lawns. Later they went back to the warehouse and went inside. 11. It must have been apparent at that stage that Mr Cuong was asking Mr Duong to do something highly illegal. He was told he did not have to touch the cannabis plants. He said that he needed some money and accepted the job offer. Of course the accuracy of any statement that would suggest that he had no involvement in actually growing cannabis plants needs to be moderated by the offender's belated admission that he did more than simply clean. 12. Mr Phan is older than Mr Duong. He is in his mid‑fifties. His parents died when he was quite young and he came to Australia as a refugee in 1992. He too gained employment, married and had children but found himself in financial difficulties after his relationship broke down. He too says that he met Mr Cuong, this time at a newsagency. There was a similar story of having been offered a job cleaning and maintaining a warehouse. He told his psychologist that while he was aware the warehouse housed cannabis, he reports "not having any direct involvement with the plants". Of course, again, that statement to the psychologist needs to be considered in the light of Mr Phan's belated admission to actually being involved in the cultivation of the plants by watering them. Mr Phan suffers from psoriasis, a condition which is exacerbated by stress. No doubt sitting in gaol awaiting sentence is a highly stressful experience. It is possible that his condition will improve once he knows the outcome of today's sentencing proceedings but it is possible that he will suffer from psoriasis and the unpleasant consequences of that, for some time. 13. Both offenders will serve their sentences in what is for them a foreign country although not too much can be made of this. Firstly, because Mr Phan has been here for ten years but more importantly because each offender chose to offend knowing that if they were discovered, they would go to gaol in Australia. I am unsure as to the level at which both of them speak English but I do know that they are assisted by an interpreter today. Communication in gaol will be more difficult for them than it would be for a native English speaker. 14. I mentioned before that the offenders committed this offence for financial gain. There is no suggestion that these men were wealthy or were to receive a percentage of the proceeds of the sale of the crop. That is consistent with the categorisation of them as being foot soldiers in the manner with which I began these remarks on sentence. 15. I mentioned also the plea of guilty. I should emphasise that that came at the earliest opportunity and so the sentence I will impose upon each offender, will be about 25% less than it would otherwise have been. 16. Fortunately, the cannabis was not disseminated in the community although it was certainly intended that that would be the case. There is no doubt that this was highly organised criminal activity. Neither offender would appear to have been involved in the planning but it was a highly planned enterprise nevertheless. 17. It is possible that each offender has prospects of rehabilitation. Whether they are good or not remains to be seen. In Mr Duong's favour is the fact that he has no previous convictions and it is quite possible that this will be an isolated breach of the criminal law. In Mr Phan's case, the prospects for rehabilitation must be bleaker, given his previous convictions. Both offenders accept that fulltime custody is the only possible sentence. 18. I was assisted by a table of cases prepared by the solicitor for both offenders. More than just providing sentencing statistics, that table contained some detail as to the offences and the offenders in those earlier cases. Mr Keller also referred to a decision of mine where I sentenced an offender, that sentenced being upheld by the Court of Criminal Appeal. I think it may have been in that decision that I did comment that it appeared that the current sentencing range for offences of this type may not reflect the seriousness with which parliament says these offences should be treated. After all, the maximum penalty is 20 years' imprisonment. There is a standard non‑parole period of ten years. I of course have taken into account both the standard the non‑parole period and the head sentence in deciding the appropriate sentence to impose upon these offenders. My reasons for not imposing the standard non‑parole appear in these remarks on sentence. 19. It is not for me to impose a sentence on the offenders which would be outside the sentencing range disclosed by the cases to which the Crown and Mr Keller have referred. The High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, spoke about inconsistency in sentencing being a badge of unfairness. That case is of course usually cited when issues of parity arise but the principle is of much wider application than that. Sentencing judges must ensure that they do not sentence on an idiosyncratic basis. Judges must approach their task on the basis that it should not matter which particular judge is sentencing an offender. Thus, despite what I have said, on more than one occasion now, about the range of sentences for offences of this kind, I will sentence in accordance with that range. 20. There are special circumstances in this case. They relate to the fact that because of language difficulties the offenders will have less opportunity for counselling and the like whilst in custody. In Mr Duong's case, it is important that he be assisted to ensure that this is an isolated breach of the criminal law. 21. The sentences I impose are as follows, taking into account in each the matter on the Form 1. 22. For the offender Duong, I impose a sentence of imprisonment consisting of a non‑parole period of two years and a head sentence of four years. The non‑parole period will expire on 4 November 2017, on which day Mr Duong is eligible to be released to parole. 23. In Mr Phan's case, I impose a sentence consisting of a non‑parole period of two and a half years with a head sentence of five years. His non‑parole period expires on 4 May 2018, on which day he is eligible to be released to parole. ********** 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: 20 April 2017