District Court New South Wales Medium Neutral Citation: R v TRAN, Tony [2017] NSWDC 397 Hearing dates: 3 March 2017, 12 May 2017 Date of orders: 19 May 2017 Decision date: 19 May 2017 Jurisdiction: Criminal Before: KING SC DCJ Decision: Convicted. Form 1 offences - SEQ 011 & 012 - taken into account on sentence imposed in re SEQ 008 Indicative sentences: SEQ 002: TT : 6 yrs & 8 mths - NPP – 5 yrs ; BT – 1 yr & 8 mths SEQ 004: TT : 5 yrs SEQ 005: TT : 6 yrs & 8 mths – NPP 5 yrs ; BT – 1 yr & 8 mths SEQ 006: TT: 6 yrs - NPP: 4 years & 6 mths; BT – 1 yr & 6 mths SEQ 007: TT: 6 yrs & 8 mths – NPP 5 yrs; BT – 1 yr & 8 mths SEQ 008 + Form 1 matters SEQ 011 & 012: TT: 8 yrs – NPP: 6 yrs BT: 2 yrs Aggregate sentence: Sentenced to a term of imprisonment for 13 years and 4 months with a NPP of 10 years to commence on 21/8/15 and to expire on 20/8/25 and a balance of term of 3 years and 4 months to commence on 21/8/25 and to expire on 20/12/28. Eligible for release to parole on 20/8/25. No further action in re the breach of the s10 bond – H 788357890/1 – JL FILE 2013/00361560-001 Catchwords: CRIMINAL – Sentence - knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants - knowingly take part in the cultivation of not less than a commercial quantity of cannabis plants - cultivate by enhanced indoor means prohibited plants, not less than a commercial quantity, and expose child in that process – offender's role – sanitised facts – purpose of Form 1 – subjective matters Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Electricity Supply Act 1995 Cases Cited: Bui [2008] NSWCCA 314 Cherdchoochatri [2013] NSWCCA 118 Chow v Director of Public Prosecutions [1992] 28 NSWLR 593 Hanh Thi Nguyen [2011] NSWCCA 92 King v R 2010 NSWCCA 202 Nguyen [2009] NSWCCA 283 O'Neill-Shore v The Queen [2010] NSWCCA 42 Phan [2010] NSWCCA 8 The Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518 R v Thomson, R v Houlton 49 NSWLR 383 Tran [2010] NSWCCA 72 Category: Sentence Parties: REGINA TRAN, Tony Representation: Counsel: CROWN: MS S STUART OFFENDER: MR G JAMES AM QC, MR E JAMES Solicitors: File Number(s): 2015/00245153 Judgment 1. Tony Tran appears for sentence in respect of six offences, five of those offences being knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants, which is contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided in relation to each of those offences is 20 years imprisonment and/or 5,000 penalty units, and the legislation provides for a standard non-parole period of ten years. 2. The sixth offence is knowingly take part in the cultivation of not less than a commercial quantity of cannabis plants. That is also contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act. The maximum penalty provided in respect of such an offence is 15 years imprisonment and/or 3,500 penalty units. There is no applicable standard non-parole period provided for such an offence. 3. In addition, the offender asks the Court to take into account when sentencing him two offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. Those two offences are an offence of cultivate by enhanced indoor means prohibited plants, being not less than a commercial quantity, and expose child in that process. That offence is contrary to s 23A(2) of the Drug Misuse and Trafficking Act and the maximum sentence provided is 18 years and/or 4,200 penalty units. The further Form 1 offence is use/consume/waste electricity without authority contrary to s 64(1) of the Electricity Supply Act 1995. The maximum penalty provided for such an offence is five years imprisonment and/or 100 penalty units. 4. The Form 1 is to be taken into account when sentencing the offender for the offence of knowingly take part in the cultivation of not less than a large commercial quantity of cannabis plants, being 418 plants, and being Sequence 8 in respect of premises at Greenacre. 5. The offender was committed for sentence on 29 August 2016 from the Burwood Local Court, and in respect of each of the offences that he is to be sentenced for he is entitled to a discount of 25% for the utility alone of the plea as referred to in Thomson & Houlton (2000) 49 NSWLR 383. 6. The facts have been agreed, and are as follows: 7. I indicate for the benefit of the parties that I have varied the facts as provided to place each of the offences in chronological sequence according to the date on which the premises were rented, with the exception of the Form 1 offences relating to Glen Alpine, as there is no date provided for the rental of those premises. 8. The offender in this matter, Tony Tran, was born on 12 September 1979. 9. Strike Force Grassy was formed by the Redfern Region Enforcement Squad to investigate the enhanced indoor cultivation of cannabis in residential houses and commercial premises within the central metropolitan region. SEQUENCE 8 - GREENACRE - LARGE COMMERCIAL QUANTITY - 418 PLANTS 1. On 5 July 2013, police executed a search warrant at 65 Beresford Avenue, Greenacre. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing water bath "watering system". 2. In total, police located and seized 418 cannabis plants. [I add to the agreed facts that a large commercial quantity of plants or number of plants is 200. 418 plants is 109% more than the threshold of 200 plants.] 3. The owner, Rami Abed, informed police the lease had been negotiated with the offender on 6 December 2012, and provided police with the offender's business card from Home Centre Realty with the offender's phone number and photo printed on it. SEQUENCE 5 - PUNCHBOWL - LARGE COMMERCIAL QUANTITY - 360 PLANTS 1. On 24 July 2013, police executed a search warrant at 45 Moxon Road, Punchbowl. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing "water bath" watering system. 2. In total, police located and seized 360 cannabis plants. 360 cannabis plants is 80% more than the threshold of 200. 3. Enquiries revealed that the premises had been sublet by George Ge to a person known as Tak Wa Lau who provided fraudulent identification. George Ge informed police that he dealt with an Asian male named "Tony" who gave him a business card from Home Centre Realty with the name Tony Tran on it, as well as a picture of the offender. The premises were leased on 22 March 2013. Expert analysis of the offender's handwriting provides qualified support that the commercial tenancy application was written by the offender. SEQUENCE 4 – CROYDON - COMMERCIAL QUANTITY - 177 PLANTS 1. On 21 March 2014, police executed a search warrant at 96 Parramatta Road, Croydon. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems and a self-replenishing water bath watering system. 2. In total, police located and seized 177 cannabis plants. A commercial quantity as relevant to this charge is 50 plants. The number of plants was more than 200% greater than the threshold for a commercial quantity and only 33 plants or 16.5% less than the next threshold, being a large commercial quantity. 1. Enquiries of the agent for the premises established that it was leased to a person known as Tak Wa Lau, who provided fraudulent identification. The lease arrangement was facilitated by the offender. The lease was signed on 7 April 2013. A copy of the offender's driver's licence was provided during the leasing process. 2. On 9 December 2014, detectives spoke with the offender, who told them that he was formerly employed as a sales consultant at Future Partners Real Estate, Chapel Road South, Bankstown. When asked about the documents used in his name, he replied "Shocking", and informed police that last year, whilst he was in Vietnam, one of his suitcases was stolen, containing his passport, driver's licence and various other cards. 3. Enquiries with the RTA established that on the day after the lease was signed the offender attended the Bankstown Registry of the RTA, that is, on 8 April 2013, and had a new licence issued. The RTA then punched a hole in the licence he claimed was stolen and returned it to the offender. SEQUENCE 2 – LAKEMBA - LARGE COMMERCIAL QUANTITY - 353 PLANTS. 1. On Tuesday 28 October 2014, police executed a search warrant at 949 Canterbury Road, Lakemba. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems, and a self-replenishing "water bath" watering system. Temporary walls had been constructed inside the property, creating a number of rooms. 2. In total, police located and seized 353 cannabis plants, that is, 76.5% more than the threshold for a large commercial quantity. Also seized were 126 high pressure sodium lamps, 146 lampshades, 137 transformers and eight power boards. Forensic police also attended the scene and examined some of the seized items for fingerprints. Police also seized a number of other items from the location, including clothing, gloves, drinking water bottles and cigarette butts for the purpose of DNA and identification. 3. Police spoke with the owner of the premises, Alexi Choitis, who said that he placed an advertisement on Gumtree in 2014. He was contacted by the offender who referred to himself as "Anthony". The offender negotiated the lease of the premises and provided fraudulent identification (driver's licence, Medicare card, credit card) in the name of "Peter Wong", who was purported to be the tenant. The lease for these premises was signed on 8 May 2014. The owner received a one month bond of $7,800. Enquiries established that the deposit was from the offender's bank account. 4. Expert analysis of the offender's handwriting provides qualified support that the commercial tenancy application was written by the offender. SEQUENCE 6 – KINGSFORD - LARGE COMMERCIAL QUANTITY - 281 PLANTS. 1. On 19 October 2013, police executed a search warrant at 281 Anzac Parade, Maroubra. Inside the premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems, and a self-replenishing "water bath" watering system. 2. In total, police located and seized 281 cannabis plants, that is, 40.5% more than the threshold for a large commercial quantity. 3. These premises were leased on 13 June 2013 after the offender again contacted the owner, Zhi Hui Huang, to negotiate the lease. The offender provided fraudulent documents to secure the lease. Expert analysis of the offender's handwriting provides qualified support that the commercial tenancy application was written by the offender. Zhi Hui Huang participated in a line-up identification procedure, and although he did not select any images, he paused over the image of the offender and said that he was 80% sure it was him. SEQUENCE 7 – STANWELL - LARGE COMMERCIAL QUANTITY - 377 PLANTS. 1. On 20 October 2013, police executed a search warrant at 160 Parramatta Road, Stanmore. Inside these commercial premises, police located a sophisticated hydroponic cannabis cultivation system consisting of complex lighting, air filtration and extraction systems, and a self-replenishing "water bath" watering system. 2. In total, police located and seized 377 cannabis plants, that is, 88.5% more than the threshold for a large commercial quantity. 3. The owner of the premises, Zhi Hui Huang, advertised the premises in the Chinese Daily Newspaper. The owner was contacted by the offender, who referred to himself as Tony, and said that he was a real estate agent looking for properties. On 17 September 2013, the owner met Tony at the premises and he completed the lease document in front of him. 4. The offender provided fraudulent documents to secure the lease. Expert analysis of the offender's handwriting provides qualified support that the commercial tenancy application was written by the offender. Mr Huang participated in a line-up identification procedure and although he didn't select any images, he paused over the image of the offender and said he was 80% sure it was him. OFFENDER'S ROLE 1. The offender's role in relation to the above offences is confined to the negotiation and arrangement of the leases of the premises with the knowledge that they were to be used for the indoor cultivation of cannabis. FORM 1 - SEQUENCES 11 AND 12 - GLEN ALPINE 1. On 21 August 2015, police attended the offender's residential premises located at 66 Heritage Way, Glen Alpine. The offender was residing at these premises with his partner and two children, aged 12 and 13. A search warrant was executed on the premises, during which police located a hydroponic cannabis growing system containing 80 cannabis plants in the basement. Eighty plants is 60% more than the threshold of 50 plants for a commercial quantity. 2. A representative from Ausgrid attended the premises and established that the power to the premises had been by-passed. 3. The offender was arrested by police on 21 August 2015. He has remained in custody in respect of these matters, and only in respect of these matters, since that date. 4. I note that the number of plants from all offences totals 2,046, being more than ten times the large commercial quantity. 5. The Crown has submitted that the Court would find that the offender is a principal in relation to each of the offences. Mr James AM QC on behalf of the offender has submitted that the Court is restricted to sentencing the offender purely on the basis of the statement contained in the agreed facts, at para 25, that is, his role in relation to the above offences is "confined to the negotiation and arrangement of the leases of the premises with the knowledge that they were to be used for the indoor cultivation of cannabis", as relating to each of the six offences that he is to be sentenced in respect of. 6. When the matter was last before the Court on 12 May 2017, having had the opportunity to read the facts which had been tendered on 3 March 2017, I indicated to the parties that I regarded the determination of the role of the offender to be a matter for the Court to determine and that the Court was not bound by any assertion in the agreed facts that the offender's role was so limited as previously referred to. 7. I accept in relation to the six offences for which he is to be sentenced (excluding the Form 1 offence) that the only evidence that the Crown was able to establish in relation to those offences was that the offender was responsible for negotiating, arranging and causing the leases to be entered into. However, there are matters relevant to his moral culpability beyond the bald statement contained in the agreed facts. 8. In O'Neill-Shore v The Queen [2010] NSWCCA 42, Basten JA referred to what was stated by Kirby P in Chow v Director of Public Prosecutions [1992] 28 NSWLR 593 as to the governing principles in respect of the functions of prosecutors and judges involved in sentencing proceedings. 9. The fifth principle, stated at page 606E, is as follows: "The foregoing rules do not oblige a sentencing judge passively and unquestioningly to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed they cannot fetter the judge's performance of the judicial function by their plea bargaining, see Malvaso v the Queen [1989] HCA 58. A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material for example, by way of presentence report to assist in the performance of the sentencing functions. The parties cannot forbid the judge to seek such assistance". 1. Simpson J in Cherdchoochatri [2013] NSWCCA 118 adverted to the tension which can arise between a judge's prerogative to reject evidence, even if there is no evidence to the contrary. After quoting a passage from Johnson J from O'Neill-Shore [2010] NSWCCA 42 at paragraph [51] he stated: "...criminal proceedings including (and possibly especially) sentencing proceedings, are more than inter partes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That in turn extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound 'passively and unquestioningly' to accept an account apparently mitigatory of an offender's motivation for becoming involved in an offence". 1. The passage relates in particular to motivation for becoming involved in an offence; it is however of general relevance. 2. In Hanh Thi Nguyen [2011] NSWCCA 92, Simpson J stated, with Davies J agreeing, when dealing with the issue as to whether in the circumstances of that matter the offender could have been legitimately regarded as a principal: "The role of principal involves at least some of the following characteristics: 1. Contributing financially to the cost of setting up the operation; 2. Standing to share in the profit (as distinct from receiving payment); 3. Some management of the operation; and 4. Some decision making". 1. This list is not exhaustive. 2. As previously referred to, the only evidence of the offender carrying out any task in relation to each of the six matters in respect of which he is to be sentenced is that he arranged the leasing of the premises knowing that they were to be used for the cultivation of cannabis plants by indoor means. 3. The sentencing task has been made difficult for the Court because the facts have been sanitised of contextually relevant information. For example, there is no reference whatsoever in relation to any crops as to the stage of plant growth. Were the plants seedlings, cuttings which had taken root, or mature plants, or somewhere in between? Were there plants at any one location at various stages of growth, indicating a commitment to effect continuous production? There is no information in respect of any of the premises, including the premises relevant on the Form 1, as to the prospective value of any crop at maturity, or as seized. 4. There is no evidence as to the lease or rental fees relevant to any of the properties, including the Form 1 property. In respect of the commercial premises, and only in respect of Lakemba, is there any reference relevant to the assessment of the cost of leasing the premises. A one‑month rental bond in the amount of $7,800 had been provided to secure the premises. Those premises were originally leased or rented by the offender on 8 May 2014. Their possible use for the production of cannabis plants ended on 23 October 2014, when the search warrant was executed. That is a period of approximately five months. On that basis, if the rental bond represented one month's rent, the rent for the period of approximately five months would be $39,000. 5. In respect of information as to the equipment being utilised at each of the premises, there is in reality only relevant information in respect of Lakemba, being the reference in the facts to 126 high pressure sodium lamps, 146 lampshades, 137 transformers, eight power boards, temporary walls, and a water bath. 6. In respect of all other premises including Glen Alpine, there is nothing more than a simplistic anodyne description of a generic nature: "Inside the premises, police located a sophisticated, hydroponic cannabis cultivation system, consisting of complex light, air filtration and extraction systems, and a self‑replenishing system." 1. Not even that much of a description is provided in relation to the premises at Glen Alpine, which are simply referred to as a "sophisticated hydroponic growing system containing 80 cannabis plants in the basement", with the additional information that the power had been diverted. 2. There is no information in the facts in relation to any other premises as to whether a similar process had occurred, that is, diverting the electricity. 3. Although each of the premises was subject to the execution of a search warrant, during the course of which it is standard practice by the investigating authorities to take photographs and/or a video recording, not a single photograph or video has been produced to the Court which might allow the Court to make some assessment of the matters that I have just referred to. 4. There is no evidence provided by the facts in relation to any of the premises as to whether there was any evidence of any past completed harvesting or processing, that is, drying plants or heads, nor evidence of any materials that might be utilised in the processing to bag up quantities. 5. Of particular note is that the premises at Stanmore were leased on 17 September 2013 and their use terminated on 20 October 2013 when the search warrant was executed. That is a period of approximately one month, an insufficient period for the maturation of any crop unless already well matured plants had been put into the premises after they were leased. 6. The longest period between the leasing of the premises and the termination of their use by the execution of the search warrant is in respect of the Croydon premises which were rented on 7 April 2013 and searched on 21 March 2014, a period of approximately 11 months, a period during which it would be entirely possible for at least one crop to have been grown to harvest, and a further crop, at least, substantially if not completely, also grown to harvest. 7. If it can be reasonably assumed that Lakemba provides some reasonable evidence of the lease costs applicable to the other premises, which, although in different suburbs, were all within the central metropolitan region, and also the likely amount of equipment that may have been required for at least each of the large commercial crops if not also the Croydon or Glen Alpine commercial crops, it is obvious that there must have been a very substantial investment in the overall undertaking, and the resources so substantial that substantial loss could be sustained as over time various premises were detected, searched and put out of operation. Nonetheless, from time to time further substantial investment was made in new premises to replace what was lost. 8. The first lease agreement was on 6 December 2012. The last lease entered into was on 8 May 2014. This is a period of activity by the offender, in relation to locating premises and entering into leases, of approximately 18 months. 9. The period over which the combined premises potentially operated is from 6 December 2012 in relation to the rental of the Greenacre premises until the search of the Lakemba premises on 23 October 2014, a period of almost two years. However, that ignores the offender's commission of the offences contained on the Form 1. As previously indicated, there is no information before the Court other than that Glen Alpine was searched on 21 August 2015 and that a hydroponic crop of 80 plants with the electricity diverted was located. From the first leasing of the Greenacre premises on 6 December 2012 until the detection of the Glen Alpine premises and their search on 21 August 2015 is a period of approximately two years and nine months. 10. A number of the premises were potentially in operation for co-extensive periods - Greenacre, Kingsford, Punchbowl and Croydon, although each not for the whole of the total period covered from first lease to final search. In respect of Greenacre, there was a seven month period from leasing to search, being the period from 6 December 2012 to 5 July 2013. In respect of Kingsford, the period was from 13 June 2013 to 19 October 2013, a period of approximately four months. In respect of Punchbowl, a period of approximately four months from 22 March 2013 to 24 July 2013. In respect of Croydon, a period of approximately 11 months from 7 April 2013 to 21 March 2014. In respect of Lakemba, a period of approximately five months from 8 May 2014 to 23 October 2014. In respect of Stanmore, a period of approximately one month from 17 September 2013 to 20 October 2013. 11. The offender was the person responsible for arranging the leasing of each of the premises with the knowledge that they would be used for the purposes of cultivating cannabis plants by enhanced means. 12. His commission of the offences in his own residence at Glen Alpine indicates that he was well aware of the means of production and had the necessary skills to himself run the operation in the basement of his own home. He was not some naïve person who had been brought into someone else's scheme with limited knowledge, a limited role and limited participation. The facts disclose an extensive and expensive criminal operation in respect of which, before entering into any lease, the offender had to have an intimate knowledge as to what was required for the purposes of production: that is, he had to be able to find appropriate premises that would provide the space, the security and the facilities that might be needed for the production. His conduct was essential to the location and commencement of production at each of the premises. 13. In relation to each of the six offences for which he is to be sentenced, each can be regarded, although there are differences in the quantity of plants, as being an offence approaching the mid-range of objective seriousness. In respect of the offence relating to his residential premises at Glen Alpine it is reasonable to regard him as clearly being the principal and clearly having a high moral culpability in respect of that offence. 14. The assessment of an appropriate sentence for this offender in respect of each of the six offences must have regard to what is demonstrated by the facts, being a criminal enterprise of a very substantial and significant nature and in respect of which his role was essential and his moral culpability high, as he full well knew the nature of the activity to be engaged in. 15. It is perhaps convenient at this point to make some reference to the matters contained on the Form 1. In my view the placing on the Form 1 of the offences relating to Glen Alpine significantly pushes the boundaries of what is appropriate to be included on a Form 1. However, that is the course that the prosecution has adopted, to the benefit of the offender. In The Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518; [2002] 56 NSWLR 146 it was said by Spigelman CJ (155 [18]), with Wood CJ at CL and Grove, Sully and James JJ agreeing, that the entire point of the process of using a Form 1 is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence stood alone. There is no requirement that the additional penalty should be small; sometimes it will be substantial. The Chief Justice also stated that: "Although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements, inter alia, which are always material in the sentencing process: (a) the need for personal deterrence, which the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused has engaged; (b) the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. The important point is that the focus throughout must be on sentencing for the primary offence." (159 [42] – [43]) 1. The offender, by asking the Court to take into account on a Form 1 the Glen Alpine matters, accepts that by his conduct he exposed his children to the processes of cultivation of cannabis plants in the home in which they resided with him. 2. Any sentence imposed on the offender in relation to these offences must reflect the individual offence within the overall conduct as demonstrated by what he actually did. 3. In relation to the six offences there is little point in trying to ascribe a descriptive term to his role. As I have already indicated his role was essential and carried out over a significant period of time with full knowledge of the purpose. 4. It is significant in respect of these matters that with one exception, in relation to the premises at Lakemba, no other person was ever identified by the authorities as having any role at all to play in the individual offence. 5. The offender has not given evidence on sentence. He did not participate in a record of interview or at any time offer assistance to the authorities to identify any other person in respect of the commission of any of the offences. 6. Where an offender seeks to be dealt with on the basis of some mitigating circumstance, such as a lesser role, it is for the offender to provide appropriate evidence to assist the Court in finding such a lesser role on the balance of probabilities. The offender has not done so. 7. This matter first came before me on 3 March 2017 at which time on the application of Mr James AM QC the matter was adjourned so that further materials could be obtained. The Crown bundle was tendered, and the matter returned before me on 12 May 2017. 8. In the intervening period I had had the opportunity to read the agreed facts. When the matter returned, apart from indicating that I did not regard myself as bound by the agreed passage in the facts as to role, I also inquired of the Crown, in the circumstances where so many premises had been the subject of search warrants, as to whether or not any other person had been arrested in relation to any of the offences, such information being essential, if there had been other persons arrested, to any issue of parity. It was not until the Court made that inquiry that the Prosecution first informed the Court that there had been two persons arrested in relation to the Lakemba premises. The Prosecution was unable to provide the Court with the reasons on sentence of Judge Norrish in respect of Phuong Nam Pham, on 15 December 2015, nor in respect of Thanh Chung Nguyen, on 21 October 2016, although the DPP representative was able to provide some facts and the notes of an officer of the DPP in relation to the sentencing of Nguyen. It was apparent that despite knowing of the other persons charged in respect of Lakemba, the Prosecution had not sought to obtain the remarks on sentence in each case of Norrish QC DCJ. 9. Fortunately, my associate was able on that day to obtain the revised judgments from Norrish QC DCJ's associate, and they were provided to each of the parties when available so that any necessary submissions could be made and entertained on that day rather than any further delay caused. 10. I have read each of the decisions of Norrish QC DCJ in relation to Pham and Nguyen so that I might consider whether there are any parity issues to be taken into account. In each case there are significant differences between the conduct of those individuals and/or the number of offences in respect of which they were dealt with, and while I have taken into account the sentences that were imposed on them, in my view there is no significant issue in relation to parity, each of the matters being capable of substantial distinction from this offender. SUBJECTIVE MATTERS 1. Available to the Court in relation to subjective matters is a pre-sentence report prepared by Bruce McSoraley, dated 27 February 2017, with an updated assessment to correct an error contained in the first report, dated 6 March 2017; a psychological report from Bradley Jones of Stephens and Bradley, dated 1 March 2017; a report from Reid Clinical Psychology, dated 28 February 2017 under the hand of Laura Smith-Wright, psychologist, in relation to the offender's wife, Minh Tran; a certificate of death from the People's Committee of the Socialist Republic of Vietnam indicating that on 16 January 2010, Tran Van Cuong, the father of the offender, died at home from what is described as "sickness"; a letter to the Court from the offender's current wife as well as references from the offender's mother, Thi Phan Tran, dated 3 March 2017, the offender's brother, Ngoc Anh Tran, dated 3 March 2017, a letter in Vietnamese with translation for Luu Ngoc Dai, dated 9 May 2017, and a further letter in Vietnamese with translation from Tran Van Muoi, being an uncle of the offender, who refers to the offender's father by the name of "Tran Tuan Anh". There is no explanation for the different names of "Tran Van Cuong" and "Tran Tuan Anh" ascribed to the offender's father; however that is not a matter of significance. 2. Also provided are receipts for the inpatient and outpatient treatment of the offender's father, "Van Cuong Tran", in Japan at the Cancer Institute Hospital for the period between 29 January 2009 and 14 November 2009 being in total 46,150,608 yen. A printout was tendered from a currency conversion programme available on the internet which indicates that that amount in Australian dollars is $550,414. 3. The Crown bundle, Exhibit 1, also contains the offender's criminal history. 4. On 18 December 2013 at the Bankstown Local Court, he was convicted in respect of two offences committed in late November 2013 of driver/rider state false name/home address, in respect of which he was fined $500, and an offence of drive motor vehicle whilst licence suspended, being a first offence, in respect of which he received a bond pursuant to s 10 of twelve months. Accordingly, he was subject to the s 10 bond from 18 December 2013 until 17 December 2014, which was a period at least coextensive with the Lakemba offence as charged. 5. The Court has been asked to call up the offender in respect of the breach of the bond and deal with him for that in the course of sentencing for these offences. For convenience's sake, I will indicate now rather than later that I direct no further action in relation to the breach of the bond, and in respect of the sentence matters, while noting that a bond is a form of conditional liberty, in my view, it is for such a disparate nature as to what the offender is here charged with that it can have no adverse effect on the sentences to be imposed. 6. The offender was thirty three years of age at the time of arranging the lease of the Greenacre premises on 6 December 2012. He is now thirty seven years of age. As previously indicated, his offending continued over a significant period, including up to 21 August 2015, when he was arrested in relation to the Glen Alpine premises. 7. Subjective matters are drawn from the material to which I have just referred. He was born and raised in Vietnam in a generally loving and supportive home environment. His parents divorced when he was approximately ten years of age. He completed kindergarten to Year 12 in Vietnam and is said to have been an academically average student. He immigrated to Australia in 1998 and is said to have undertaken studies and continued to engage in a pro social lifestyle, securing employment and later marrying and raising a family. He is said to have attended English language classes and obtained a diploma in banking and finance from TAFE. 8. Whilst studying at TAFE, he worked in generally unskilled jobs such as process worker and cleaner between 2000 and 2002, and as a financial consultant until 2004. He is said to have owned and operated a restaurant in Beverly Hills between 2004 and 2006 but returned to Vietnam to work in the family restaurant between 2006 and 2009. 9. He accompanied his father to Japan in relation to his medical treatment in 2009, returning to Australia in 2010 after the death of his father. He married his first wife in 2002 and there are two children of the relationship, a son of approximately 13 years of age and a daughter of 12 years of age. It is said that when he returned to Australia in 2010, he discovered that his wife had been having an affair and in July 2010, they divorced. He married his second wife, Thi Minh Nguyen, who was approximately ten years younger, in 2012, having apparently met her some time in 2011. 10. The psychologist report indicates that on his return to Australia he worked as a real estate broker between 2011 and 2013 on a commission basis. He said that his income was tenuous, depending on sales and commission. From 2014 to 2015 he was self-employed as a property renovator (labourer). After returning to Australia he is said to have commenced drinking large amounts of alcohol in 2010, being up to 24 bottles of beer per night and that this continued until approximately 2012 when he met his second wife, although I note from her letter to the Court that it would appear that he met her in 2011. 11. The psychological report states that having met his second wife, he then ceased all alcohol use. He denies the use of any illicit substances. It is said that in 2010, he began gambling, most afternoons at Star City Casino, but he lost increasing amounts of money and borrowed money from a Vietnamese man at the casino incurring approximately $50,000 in debt which was accruing interest daily and which he was unable to repay. 12. The psychological report refers to his father as suffering terminal bowel cancer, although the report from the Japanese hospital indicates that he was treated for stomach cancer; perhaps he had both. As a result of his father's death and the discovery of his wife having an affair he is said to have become depressed, and in addition to the gambling debts that he could not repay, he is said to have accrued debt in relation to the treatment of his father, and that in respect of his offending in relation to these matters, he saw it as an opportunity to obtain finances to repay his debts both in respect of his father's treatment and his gambling. 13. His parents having separated when he was ten resulted in him having limited contact with his father until he was an adult when they again developed a father/son relationship. He describes his father as having been self-employed as a property developer, but I note in addition he has referred to returning to Vietnam in order to participate in the family restaurant business. 14. Mr Bradley makes the following diagnosis in respect of the offender: "1. Major depressive disorder, mild severity. 2. Alcohol use disorder, moderate severity in sustained remission. 3. Gambling disorder, moderate severity." 1. The psychologist also referred to him as being a detached observer of life, self-absorbed, at times following a meaningless, ineffectual idle life pattern marked by a tendency to remain on the periphery of social activities, being depressed and morose with feelings of self-disillusionment and deep resentment towards others. In the psychologist's opinion the offender currently poses a low risk of committing further offences relative to other offenders and that he is likely to experience gaol life as being more arduous than an individual not suffering depression. I note in that respect that there is rarely a matter that comes before the Court where there is not a claim that the offender is significantly suffering from depression. It is obvious that when awaiting sentence for significant offences offenders are highly likely to become depressed and anxious in respect of the anticipated outcome. 2. It may well be that persons suffering from depression find gaol life more arduous than individuals not suffering depression, but there would not be many in the gaol system who are not suffering depression. I have no doubt that Corrective Services are fully capable of dealing with the common sequelae of criminal offending and imprisonment, that is, depression and anxiety. 3. He travelled to Australia as an overseas student in 1998 and approximately three years later his mother and younger siblings followed him after he had gained permanent residency. He subsequently obtained Australian citizenship in 2002. It is said that his family members in Australia regularly visit him in custody. 4. I note in respect of any employment, whether it be as a financial broker or in the real estate sector, that it would appear through most of the period covered by the offences that he was not in fact working in those capacities. No reference has been provided to the Court to indicate that he has in fact been employed in either of those fields at any time. However, that does not mean that he has not at some stage been employed in the finance industry as a broker or in some capacity in the real estate field. Indeed, his participation in these offences by way of arranging the leasing of suitable premises and the preparation of relevant documentation would appear to indicate that he has some experience in relation to real estate. 5. In relation to any loan he obtained in order to pay for his father's medical expenses, no documentation has been produced to the Court. In relation to his gambling, other than his own self-serving statements, there is no acceptable information as to his gambling addiction. 6. I note that his current wife, Minh Nguyen, provided a character reference for him on the basis of her knowledge of him over a period of six years. She states that visits him twice a week and: "Every time I visited him, he always tells me how upset he is during the time in custody and deeply regrets about the mistake he made...Tony did told me about his financial crisis from his father expensive treatment from over sea (sic) and his gambling debts. He did what he did to try and repay the debts. As a man of family he is the best. He is loyal and extremely considerate. Tony is also a supportive person who has the ability to see and understand things from another person's perspective. Consequently, he has great empathy for others. Tony is also a great, direct communicator and knows how to raise and discuss common living issues and problems in a non‑threatening manner. Overall I would have to say that he is a fine, well‑balanced man with an abundance of positive qualities. Additionally, he has a large and committed support system..." 1. I find it extremely difficult to place any reliance on a character reference provided by the wife of the offender, who was also a resident in the premises at Glen Alpine during the time that he was cultivating a crop of cannabis plants by enhanced means in the basement. Her reference tends to raise the implication that she does not see what he was doing as being wrong because he did it to try and repay the debts. 2. I am uncertain as to whether he had any debts, but even allowing that he may have incurred debts in relation to his father's medical treatment and gambling, the participation in significant criminal offending in order to raise the funds to pay those debts does not in any way diminish the offender's moral culpability in relation to any of the offences. 3. As to his support network, his wife being part of that support, I do not, from her reference, feel that she would provide a disincentive to further criminal offending, particularly when she was prepared to live in the same premises for whatever period of time the basement enterprise was conducted, together with the offender's children who were exposed to that criminal offending. 4. The offender's mother resides in Australia at Bonnyrigg. She is Thi Phan Tran. She describes him as, "loving animals and having a big heart". Although she refers to her ex‑husband, and the offender's caring for him, she makes no reference to the offender as accruing any debts as a result of caring for his father. I note in that respect that in addition no bank or even receipt documentation has been provided to the Court which would indicate that the offender paid for any of the treatment his father received, even though I accept that he may well have done so. According to the offender's mother: "I am visiting my son every second weekend. When I met him, he is always saying sorry for his mistake and showing regret for what he did wrong." 1. His brother, Ngoc Ahn Tran, states that he was totally shocked when the offender was arrested and that the offender, "worked for a real estate agency for few years ago", and further: "...Tony is also a very good father. He takes care of our niece and nephew very well. He always teaches them to do the right things and be a good person. He led by example. We all believe he does not do any bad things. Our brother is also a good brother. He also takes care of his brother and sister. Even now he is in the Correctional Centre but he often tells us to do good things when we visit him." 1. Obviously, the offender's brother had no appreciation of the level of his brother's offending. If he presented to his brother as a person who led by example, teaching his children to do the right things and be a good person, it would appear that the offender was perpetrating a myth, noting in particular the presence of his children, who he exposed to the process of cultivation. I also note that the offender's brother and sister in their joint reference, said: "...My brother did speak about what he did wrong and he feel deeply regret about the criminal mistake he make which causes damages to the owner of the commercial premises." 1. There is no evidence before the Court that there was any damage to any of the commercial premises, and if the offender's expression of regret, or deep regret for the wrong that he did relates to damaging the properties, it is hardly referable to the commission of an offence by which prohibited drugs are produced for the dissemination into the community. Each of the references, translated from Vietnamese, refers to: "I knew that Tony pleaded guilty to be responsible of planting a large quantity of marihuana plants deliberately." 1. This being in the reference from Tu Ngoc Thi, and in the reference from Tran Van Moi: 2. "I knew that my nephew, Tony, pleaded guilty to be responsible of planting a large quantities of marihuana plants deliberately." 3. That is of course inconsistent with what is said in the agreed facts as to his role. 4. Mr Thi, indicates that he: "...witnessed that Tony has borrowed a lot of money from his friends and partners for the cost of his father's travelling and medical treatment." 1. Mr Moi states: "Although his financial situation is very difficult but he still had to borrow the money from his friends, relatives and partners, to pay for the cost of travelling, and further medical treatment for his father and stepmother during the whole time his father stayed in Japan for treatment." 1. And further: "I saw that my nephew was very distressed and exhausted and had to cover the debts since the day his father passed away. I believe that if not under the pressure due to the debt and family breakdown, my nephew will never do anything against the law." 1. As I have previously indicated, whether there was debt occasioned for the commendable purpose of assisting his father in his ill health, it does not excuse the offender's conduct nor does committing criminal offences as a way of repaying outstanding gambling debts excuse the offending, if such debts existed. 2. There have been a number of references to remorse and contrition, such as in the psychologist's report, "Mr Tran did express his regret and remorse stating, 'I am very sorry for doing that, I didn't realise how serious my involvement was'.'' That is hardly, in my view, a statement of remorse or contrition rather than an attempt to downplay his knowledge as to the wrongfulness of what he was doing. 3. Some of the information contained in the individual references would seem to be contrary to the psychologist's findings in respect of the offender, such as his current wife's statement that, "Overall I would have to say that he is a fine, well-balanced man with an abundance of positive qualities". 4. There is no evidence before the Court that the offender's psychological state was in any way a significant contributing factor to the commission of the offences, as might diminish his moral culpability, nor was he participating because he was a user of the prohibited substance. He informed the psychologist that he does not use illicit substances, and alcohol cannot have been in any way relevant because he ceased all alcohol use when he met his second wife in approximately 2011 or 2012. 5. The Crown provided a short schedule of cases relating to large commercial quantities grown by enhanced indoor means. The schedule contains little detail other than the number of plants, whether it was a plea of guilty, the sentence imposed and some very brief facts. The cases referred to are Bui [2008] NSWCCA 314, Nguyen [2009] NSWCCA 283, Phan [2010] NSWCCA 8, and Tran [2010] NSWCCA 72. The schedule itself in its form was of no assistance. Accordingly, I have located each of the relevant cases and perused them to determine whether they had any particular relevance to the sentencing in this matter. 6. In each case, the offending related to a single offence. The circumstances of these matters and this offender are so substantially different that I have not found any assistance from going to the cases referred to in the Crown's schedule. 7. As a result I have also turned to the statistics available through JIRS which can now be tunnelled down to individual cases where they have been reported either at first instance or as a result of an appeal to the Court of Criminal Appeal. I note that there are a very significant number of offences, in excess of 80, recorded in the statistics. 8. I have, however, despite the time spent to try and find relevant matters which might provide some guidance, been unable to find any matter of a like nature to the offending by this offender. As the Court of Criminal Appeal has remarked on many occasions, the statistics are a very blunt tool. 9. I have taken into account in determining the appropriate sentences the maximum provided by the section and also had regard to the standard non‑parole period as a guide, although I note in respect of all of these matters that the offender has pleaded guilty. 10. In view of the offender's lack of past relevant criminal offending, and despite the period of time over which these offences occurred, I am of the view that there is a reasonable prospect of rehabilitation and a low prospect of reoffending. 11. As previously referred to, he is entitled to a 25% discount in respect of each offence for the utility of the plea. I intend to proceed by way of an aggregate sentence, and as a result I am required by the legislation to provide an indicative sentence in relation to each of the individual offences before the Court for sentence. I will deal with them in the same order as I have dealt with them as rearranged from the facts. 12. In respect of: Sequence 8 - Greenacre – large commercial quantity - 418 plants, 1. also taking into account Sequences 11 and 12 on the Form 1 in respect of Glen Alpine, the indicative sentence is a non-parole period of six years with a balance of term of two years, giving a total term of imprisonment of eight years as the indicative sentence. Sequence 5 - Punchbowl – large commercial quantity - 360 plants 1. The indicative sentence is a non-parole period of five years with a balance of term of one year and eight months, giving a total sentence of six years and eight months. Sequence 4 - Croydon - commercial quantity – 177 plants 1. There is no standard non-parole period, and I am not required to specify an indicative non-parole period. Accordingly, I simply specify a sentence of five years. Sequence 2 - Lakemba - large commercial quantity - 353 plants 1. The indicative sentence is a non-parole period of five years with an additional term of one year and eight months, giving a total term of imprisonment of six years and eight months. Sequence 6 - Kingsford - large commercial quantity - 281 plants 1. The indicative sentence is a non-parole period of four and a half years with an additional term of one year and six months, giving a total sentence of six years. Sequence 7 - Stanmore – large commercial quantity - 377 plants 1. The indicative sentence is a non-parole period of five years with an additional term of one year and eight months, giving a total term of six years and eight months. 2. It will be evident to the parties from those indicative sentences that I have not found special circumstances. I note the letter to the Court from the offender's current wife and the psychological report suggesting that she is suffering from a major depressive disorder and receiving treatment for it and is living in more constrained circumstances, having lost the benefit of any income from whatever source that her husband brought into the family relationship. She now relies solely on the Newstart allowance and is said to have had to move properties to something more affordable. She is said to have suffered from insomnia, weight loss, low mood, feelings of helplessness, suicidal ideation with planned intention and high anxious arousal about her future. Those symptoms caused clinically significant distress and impairment on her social, occupational and other important areas of functioning, which are likely to remain poor for the period her husband remains detained. That is of course one of the unfortunate consequences of one's partner committing serious criminal offences. Specifically in respect of the hardship in respect of family in King v R 2010 NSWCCA 202 at [18] it was said: "Hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a non‑custodial sentence: R v Edwards (1996) 90 ACrimR 510 at 516." 1. There are circumstances, however, that whilst not sufficiently exceptional to justify a non-custodial sentence, are sufficiently exceptional in a suitable case to justify a finding of special circumstances: R v Grbin (2004) NSWCCA 220; R v Murphy (2005) NSWCCA 182. 2. In this matter, I have taken into account all of the matters that I have previously referred to. While the offender had a minimal criminal record and nothing relevant as I have previously said, it is impossible to regard him as being a person of good character in the light of the extensive offending and the substantial and significant nature of it. 3. The Court is required to impose not simply a sentence that reflects an individual charge, but also the overall offending conduct. Any sentence must reflect the objective seriousness of the offence as well as the need for general and specific deterrence, as well as meeting the fundamental purpose of punishment: the protection of society. 4. In relation to matters such as this where the offending is difficult to detect and where offenders, at whatever level of involvement, are frequently protected by any individual who is in fact arrested in respect of the offence, general deterrence is an extremely important factor. The imposition of an aggregate sentence must take into account by way of the totality of the offending and the need for the sentence to provide an effective deterrent to others. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no possible alternative other than a penalty of imprisonment. Appropriately, no submission has been made to the contrary. 5. Mr Tran, would you please stand. 6. You are convicted in respect of each of the six offences to which I have previously referred. You are sentenced to a term of imprisonment with a non-parole period of ten years that will commence on 21 August 2015, being the date on which you first went into custody. You will accordingly be first eligible for parole on 20 August 2025. The balance of term is three years and four months, giving a total sentence of 13 years and 4 months. The total sentence will expire on 20 December 2028. 7. I have referred to you first becoming eligible for parole on 20 August 2025. You will in fact not necessarily be released on that date; it will be a matter for the prison authorities and will depend to a significant extent on your behaviour while in custody. 8. As I have previously referred to, I can discern no special circumstances in relation to this matter. The fact that it is the offender's first time in custody is not of itself a special circumstance, nor is there any other relevant factor combined with that that has persuaded me that special circumstances are appropriate. In particular, I note that the sentence has a balance of term or potential parole period of three years and four months. The regulations provides for a maximum three year period of supervision on parole in almost all circumstances. The potential parole period is four months more than might already be the subject of supervision. Thank you, you can sit down. HIS HONOUR: Are there any matters that I have mis-stated or failed to refer to of significance? HANNA: No, your Honour. STUART: No, your Honour. HANNA: The plants have already been destroyed, your Honour. HIS HONOUR: Thank you. ********** Amendments 09 March 2018 - Amendment to former paragraph 42 - continuation of quotation in paragraph 41. 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: 09 March 2018